This is an interesting concept because sexual assault really isn't a crime. In other words, the crime 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 really 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 really 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 actually touching another person in a sexual way and then they can actually 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'm thinking this sounds like some sort of a 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) actually is a crime where you have to register as a sex offender for a period of time. So, it's a real bad crime to get on your record.
If somebody gets charged with sexual battery, I'm usually trying to get some other charge that's not a registerable offense pursuant to Penal Code Section 290. Of course, that assume that the person actually has some culpability and that the prosecutors can prove the case against them.
Then we have to try to work out some sort of a resolution. Of course, we're going to try to avoid registration if it's possible.
A lot of it is going to 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 important 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 a bail and then you would get out.
You would be given a court date by the bail bond company 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 — kinda 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 sort of an explanation behind it.
Of course, you don't do that in every case. You only do it in a case where it's appropriate and that's something you're going to want to discuss with an attorney like me. Lay out all the acts about what happened surrounding this sexual encounter and then you and I will discuss what the best procedure is.
Whether we're going to do some sort of intervention pre-filing or 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 case straight to a jury trial without tipping the prosecutor off as to exactly how we're going to defend the case.
There's a lot of different ways you can go with the sexual assault or sexual battery case. Most important is to get an attorney who understands the jurisdiction where the case is pending, who's handled these type of cases before, knows what to do, when to do it and how to attack the problem.