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California Criminal Jury Instructions for Sexual Battery

Posted by Ronald D. Hedding | Feb 14, 2019

When someone is charged with sexual battery under California Penal Code Section 243.4(e)(1), this is a serious crime. If you're convicted or plead guilty to a sexual battery in Los Angeles, California, you're looking at registering as a sex offender.

That means every year on your birthday, you have to register with the local police department, and other ramifications come along with that sex registration that many people don't want to have to do.

CALCRIM 938 – Touched Intimate Part of Victim's Body

For the prosecutors to prove this case against somebody, there are three elements that they have to meet. These elements are spelled out in the CALCRIM 938 Jury Instructions read to every juror in a sexual battery criminal case.

The judge will tell them the defendant is charged with sexual battery in violation of Section 243.4(e)(1). For the prosecutors to prove this case against this particular defendant in the Los Angeles Superior Court, the number one must prove that the defendant touched an intimate part of the victim's body. 

So, that would be touching their breast, touching their butt, touching their private area — some intimate part has to be handled for this element to be met for the person to be charged and convicted of sexual battery in LA.

Touching Was Against Victim's Will

Number two, the touching was done against the other person's will.  So, if it's a boyfriend/girlfriend, there can be an argument that the girl consented to it based on prior acts, and obviously, that could be a defense to the crime.  So, it has to be against the person's will.

In other words, under the circumstances, the person didn't want this to happen.  So, it's going to be a reasonable person standard.  If two people go out on a date, they're kissing and hugging. Somebody touches somebody in a private area; that's probably not a scenario where a sexual battery will be applicable.

But of course, those facts could be twisted or turned in a direction where it is inappropriate, and it is not reasonable under the circumstances for an individual to touch somebody.

So, if you have one-off of these cases, you want to get in front of a criminal defense attorney like me who has done these cases and can give you a good feel for whether or not this touching was inappropriate or not.

Touching was Specifically for Sexual Arousal

The final element that has to be proved by the prosecutors in a sexual battery case is that the touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.  So, if you accidentally touch somebody as you walk by them, again, depending on the circumstances, that can be argued that it was not done intentionally.

It wasn't done for purposes of any gratification.  It was simply an accident, a mistake, which could be a defense to this element.

In a sexual battery prosecution, the prosecutors have to prove all three of these elements.  So, if one of the elements is missing, you would argue that they have not proved that element and, therefore, have not proved the sexual battery.

They also talk about what precisely an intimate body part is.  That's put in the jury instructions that read to the jurors in a Los Angeles criminal case.  An inseparable part is a female's breast or anus, groin, sexual organ, or buttock.  When they define touching, it means making physical contact with another person.  Touching includes contact made through the clothing.

And then finally, they talk about the act.  An act is done against the person's will if that person does not consent to the act.  To consent, a person must act freely and voluntarily and know the nature of the show.

Consult with our Sex Crime Defense Lawyers

The bottom line is, a lot of this stuff is reasonableness. If under the circumstances, the defendant in the case believes they were given consent and that it was okay with the other party based on the surrounding facts to touch them sexually, then that could be a complete defense to the crime. So, if you or a loved one has a sexual battery or other California sexual assault laws, sit down with somebody who knows this jury instruction very well and has represented people for many years in the Los Angeles County criminal courtrooms.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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