Updated on September 1st, 2023
What is sexual battery?
Depending on the state you resides, each state defines and penalizes rape, sexual assault, sexual battery differently.
Author: Brad Nakase, Attorney
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What are the different types of sexual crimes?
Sexual battery is not rape. However, rape is sexual battery. In rape, there is the penetration of private areas. In a sexual battery, there is harmful or offensive touching.
A person commits a sexual battery if they intend to cause harmful or offensive contact (or to cause imminent apprehension of contact) with an “intimate part” of the body, and a sexually offensive contact does result. Cal. Civ. Code §1708.5.
The elements of sexual battery are:
- A person must act with a specific intent to cause harm or offensive contact. An intent to cause imminent apprehension of contact is enough for a claim of sexual battery.
- A person must cause harm or contact to an “intimate part” of the body.
- Sexually offensive contact must result.
Sexual battery is defined differently in each state and may even be called different names depending on the state. In some states, the sexual battery will be used to describe, which in other states would be called sexual assault or rape. In some states, sexual contact with a minor falls under the umbrella term of sexual battery, whereas in other states, it would be called child molestation. Each state will have its sexual battery statute, which will clearly define what is considered sexual battery in the eyes of the law.
In general, across the states, sexual battery is classified as non-consensual touching of another person’s body for the sexual gratification of the offender. Under this definition, many states include patting of the buttocks, groping, and touching of intimate areas under the term sexual battery. Other states, however, only consider penetrative acts as sexual battery, and non-penetrative acts are given another term and carry different punishments based on their criminal weight.
The distinction means that depending on the state. Sexual battery can carry a felony or a misdemeanor charge requiring no jail time served. For sexual crimes in California, please contact San Diego criminal defense attorney Tom Rist. Regardless of the state, the sexual component of the crime isn’t the only consideration the law takes in charging and penalizing the offender. Factors such as the use of force, mental capacity, and age of the victim are all considered when charging an offender with sexual battery.
What is California law for sexual battery?
Under California Civil Code 1708.5, a person commits a sexual battery who does any of the following:
- Acts with the intent to cause harmful or offensive contact with an intimate part of another and sexually offensive contact with that person directly or indirectly results.
- Acts intending to cause harmful or offensive contact with another by using their intimate part and sexually offensive contact with that person directly or indirectly results.
- Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and sexually offensive contact with that person directly or indirectly results.
A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general, special, and punitive damages.
In civil lawsuit for sexual battery with the help of a personal injury lawyer in San Diego, the court may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper.
For this section, “intimate part” means the sexual organ, anus, groin, or buttocks of any person or the breast of a female.
The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.
For this section, “offensive contact” means contact that offends a reasonable sense of personal dignity.
Element 1: Intent to cause harmful or offensive contact or apprehension
The defendant must have acted with the intent to cause harmful or offensive contact with the plaintiff’s intimate parts or the apprehension of such contact.
“A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact, and the battery suffers a ‘sexually offensive contact.’ Moreover, the section is interpreted to require that the battery did not consent to the contact.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.)
It is important to note that intent is important in a claim of sexual battery.
Element 2: Touch intimate parts of the body for sexual battery
“Intimate part” means the sexual organ, anus, groin, or buttocks of any person or the breast of a female [Civ. Code § 1708.5(d)].
“Offensive contact” means contact that offends a reasonable sense of personal dignity [Civ. Code § 1708.5(f)].
What is sexually offensive contact? Sexually offensive contact is contact that a reasonable person would deem offensive in the plaintiff’s situation.
Example: the court found a claim of sexual battery between an apartment manager and a tenant. In this case, an apartment manager made sexually offensive contact by grabbing a tenant’s breasts and buttocks after being pushed away.
Element 3: Causation
The defendant’s act must have directly or indirectly resulted in sexually offensive contact.
Element 4: Lack of consent
Lack of consent is an element of sexual battery that the plaintiff has to prove.
Therefore, the plaintiff must show that they did not give affirmative consent before the defendant assaulted them. During the discovery process, issues may arise regarding specific facts that the plaintiff must show to prove a lack of consent.
If the victim is ruled mentally unfit to consent when the sexual act was committed, then most states would consider the act to be a sexual battery. All states would consider this to apply to victims with permanently diminished mental capacities. Still, some states also consider temporary mental deficiencies, such as someone drunk, drugged, or otherwise unconscious, regardless of if the offender brought about their state.
In cases where temporary mental deficiencies aren’t included under the same law as someone with a permanent disability, the law will have a separate category for these crimes, sometimes carrying different charges and penalties.
Undue influence on sex
Undue influence” has the meaning provided under Welf. & Inst. Code § 15610.70: excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity [Civ. Code § 1708.5.5(c); see Welf. & Inst. Code § 15610.70(a)(1)–(4) (factors to consider)].
Consent is not a defense in a civil action under Civ. Code § 1708.5 when the plaintiff was a minor and the defendant who committed the sexual battery was an adult who was in a position of authority over the minor [Civ. Code § 1708.5.5(a)].
For these purposes, an adult is in a “position of authority” if they, because of that position, can exercise undue influence over a minor, which includes, but is not limited to, a natural parent, stepparent, foster parent, relative, partner of any such parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, an employee of one of those persons, or coworker [Civ. Code § 1708.5.5(b)].
Minor sexual activity w another adult.
Evidence of a plaintiff minor’s sexual conduct with an adult defendant is not admissible to prove consent by the plaintiff or the absence of injury to the plaintiff. Evidence of the minor plaintiff’s sexual conduct may only be introduced to attack the plaintiff’s credibility under Evid. Code § 783 or to prove something other than consent by the plaintiff if, upon a hearing of the court out of the presence of the jury, the defendant proves that the probative value of that evidence outweighs the prejudice to the plaintiff consistent with Evid. Code § 352 [Evid. Code § 1106(c)].
All states have an age of consent, in most, it is sixteen, but in some states, it is as low as fourteen. If this particular categorization does not appear in the sexual battery statute, it will be mentioned elsewhere under statutory rape law. If the victim of a sexual act is under the state’s legal age of consent, the offense is automatically considered sexual battery or statutory rape regardless of consent. However, if the victim’s age is the only factor in the sex crime, then the offender might be able to build a defense.
Remedies for sexual battery (Cal. Civ. Code §1708.5)
A person who commits a sexual battery on another is liable to that person for damages, including but not limited to general damages, special damages, and punitive damages [Civ. Code § 1708.5(b)].
The rights and remedies provided in Civ. Code § 1708.5 are in addition to other rights and remedies provided by law [Civ. Code § 1708.5(e)].
General damages for sexual battery claim
These damages will include any financial award for physical pain due to the battery and emotional distress due to psychological trauma.
Special damages for sexual battery claim
These damages include the costs of future therapy or psychiatric care for victims of sexual battery (i.e. rape kits, hospital bills, etc.).
Punitive damages for sexual battery claim
Punitive damages may be awarded in action for assault or battery if the plaintiff shows that defendant acted with the requisite malice, oppression, or fraud. Civ. Code § 3294(a),(c); Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549.
Punitive damages are not recoverable if the defendant, acting in good faith, committed the assault or battery under a mistake of fact. Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891,
A showing that the defendant acted angrily after provocation serves to eliminate or reduce punitive damages [see Badostain v. Grazide (1896) 115 Cal. 425, 429.
Equitable relief including injunction.
The court in action, according to Civ. Code § 1708.5 may award equitable relief, including but not limited to an injunction, costs, and any other relief the court deems proper [Civ. Code § 1708.5(c)].
Statute of limitations
Code of Civil Procedure §335.1 extends the statute of limitations to two years.
Ordinarily, a cause of action for assault accrues at the time that the plaintiff anticipates the harm, and a cause of action for battery accrues at the time of the physical contact, even though no visible damage occurs at that time. Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 774.
The statute of limitations begins to run at that time in the absence of fraud, concealment, or coercion on the defendant’s part that prevented the plaintiff from ascertaining the extent of their injury [see Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 774.
As a general rule, one who consents to a touching cannot recover in action for battery. However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive activity.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609–610.
Under Civil Code 1708.5.5 – notwithstanding Section 3515, consent shall not be a defense in any civil action under Section 1708.5 if the person who commits the sexual battery is an adult who is in a position of authority over the minor.
For purposes of this section 1708.5.5, an adult is in a “position of authority” if they can exercise undue influence over a minor because of that position. A “position of authority” includes, but is not limited to, a natural parent, stepparent, foster parent, relative, partner of any such parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, an employee of one of those persons above, or coworker.
For this section 1708.5.5, “undue influence” has the same meaning as in Section 15610.70 of the Welfare and Institutions Code. Welfare and Institutions Code section 15610.70 provides:
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include. Still, it is not limited to the economic consequences to the victim, any divergence from the victim’s initial intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
Consent to sex
If the victim is over the legal age of consent and has no diminished mental capacity, then proving consent is the first defense for someone accused of sexual battery. However, if the victim was drunk or drugged, most states will not allow consent to be used as a defense.
Romeo and Juliet defense
In Romeo and Juliet laws, in principle, a person over 18 years old having sex with a minor may be permissible if they are in a genuine romantic relationship. California does not recognize Romeo and Juliette’s Defense. California has strict liability for statutory rape, which is a person at least 18 years old having sex with a minor.
Though the laws surrounding sex with a minor are tough, most states have enacted an exception called the Romeo and Juliet clause. This means that if there is a small age gap between the defendant and victim and the sexual contact is consensual, this can be used as a valid defense. The age gap required for this defense will vary depending on the state, but in most, it is three years.
Mistake of fact
This is the most common defense used when the sexual battery charge is because of the victim’s age. The defendant can claim that they were unaware of the child’s age at the sexual encounter and that the act was otherwise consensual. If this defense is used, the burden of proof is on the defendant to prove that they were unaware of the child’s age.
Some states do not allow a mistake of fact defense, and the defendant will instead present a nullification defense which requires them to present evidence of the consensual nature of the sexual encounter and ask the jury to nullify the conviction in light of the evidence. Some judges, however, might not allow the testimony required to present a nullification defense as the defendant would have to admit they had sexual contact with the victim.
Discrediting the victim
Another common defense employed in sexual battery cases is to discredit the victim by dredging up evidence of promiscuity. In fact, in the past, many states’ laws had promiscuity listed as a credible defense in their sexual battery statutes. Now there are rape shield laws in place in many states which disallow the use of a victim’s sexual history as a defense except in a few special circumstances.
Retest the DNA evidence
This has become extremely popular with the advances in DNA testing. All defendants have the right to request retesting of any forensic evidence gathered in their case. While this might result in the charges against them being overturned, it could also result in their charges being cemented through the DNA results.