This is an interesting concept because sexual assault isn't a crime. In other words, the offense is more touching the other party in an impermissible way — in a sexual way. California Penal Code 243.4 defines the crime of sexual battery.
That's where the sexual battery concept comes up, but assault doesn't have you making any contact with the person. It just has you trying to put your hands on the person in a sexual way. So, that scenario doesn't come up that much.
Sexual Assault in the Workplace
Usually, we see this concept of sexual assault is in the workplace where someone is claiming they were sexually assaulted and just using the term broadly as an umbrella to say that somebody was doing something inappropriate to them, and it had sexual connotations behind it.
But the crime comes in where somebody is sexually touching another person, and then they can call the police, and the police can arrest that person for touching them or another party in a sexual manner.
So, when I hear the term sexual assault, I think this sounds like some civil suit where somebody is doing inappropriate things to other people in the workplace or, of course, even outside the workplace.
Sex Offender Registration in California
The crime of sexual battery (CALCRIM 938) is where you have to register as a sex offender for some time. So, it's an actual lousy crime to get on your record.
If somebody gets charged with sexual battery, I'm usually trying to get another charge that's not a registerable offense under Penal Code Section 290. Of course, that assumes that the person has some blame and that the prosecutors can prove the case against them.
Then we have to try to work out some resolution. Of course, we're going to try to avoid registration if it's possible.
A lot of it will have to do with what the person did, what their criminal record looks like, the prosecutor on the case, and a whole host of other essential factors that you need to consider if you're charged with sexual battery.
Being charged with sexual assault, in my opinion, is an uncommon thing, so if you're charged with sexual assault, it's probably going to be some unique situation, and it would be surprising to me if you weren't also charged with other crimes.
Sexual Battery or Sexual Assault
Remember, the police don't charge sexual assault and battery. All they can do is either write a ticket and cite somebody into court for sexual battery or sexual assault, or they can arrest you, and you would post bail, and then you would get out.
The bail bond company would give you a court date to appear, and then what ends up happening is the case is turned over to the prosecutors, and the prosecutors are going to decide what, if anything, you're charged with.
So, a lot of times, you'll see people get booked for sexual assault or sexual battery, and then they end up getting charged with something else, or they might not even get charged at all if it's not a good case.
That's why people hire lawyers pre-filing so the lawyer can contact the prosecutor's office, send them mitigating circumstances — kind of give them your version of events and show that no, this wasn't a sexual assault or a sexual battery, this is something different that's going on and puts some explanation behind it.
Prefiling Intervention
Of course, you don't do that in every case. You only do it at a point where it's appropriate, and that's something you're going to want to discuss with an attorney like me. Layout all the facts about what happened surrounding this sexual encounter, and then you and I will discuss the best procedure.
Whether we're going to do some intervention pre-filing, whether it's better to wait until the case is filed and then give the prosecutor our position, or whether we're just going to take the issue straight to a jury trial without tipping the prosecutor off as to exactly how we're going to defend the case.
There are a lot of different ways you can go with a sexual assault or sexual battery case. Most important is to get an attorney who understands the jurisdiction where the issue is pending, who's handled these types of cases before, who knows what to do, when to do it, and how to attack the problem.
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