California Penal Code Section 243.4, sexual battery, can be charged as either a misdemeanor or a felony, depending upon the facts of each case. This is considered a "wobbler", meaning it can go either way. Having been an Orange County sexual battery lawyer for 20 years, it has been my experience that prosecutors too frequently charge sexual battery as a felony. When representing someone charged with sexual battery, there are three specific elements I will challenge the prosecution on:
1) Did my client actually touch an intimate part of another;
2) Was the touching against the will of the other and/or was the consent fraudulently obtained; and
3) That my client touched the other person to satisfy sexual gratification, cause sexual arousal or sexual abuse.
If the prosecution is unable to prove all three of the above elements, there can be no conviction. A sexual battery lawyer in Orange County can challenge the prosecution's case whenever possible.Misdemeanor Sexual Battery
Penal Code Section 243.4(e)(1) is defined as non-consensual touching of the intimate part of another for sexual arousal, sexual gratification or sexual abuse. The penalties for a conviction of misdemeanor sexual battery can be all or part of the following:
- Informal probation for up to 5 years; Probation may include (1) community service, (2) regular attendance in a batterer's education program, and/or (3) regular attendance in a program designed to help those with sexual abuse/compulsion issues;
- Up to 6 months in County jail;
- A maximum $2,000.00 fine;
- Up to $3,000.00 if the accuser was your employee; and
- Registration as a sex offender.
Felony sexual battery is committed for the same reasons stated above but touching against the will of another includes:
(a) Someone who was unconscious as to the nature of the act because he/she was fraudulently convinced that the touching was for professional purposes,
(b) Someone who was unlawfully restrained,
(c) Someone who was institutionalized and either medically incapacitated or seriously disabled, or
(d) Someone falling under "b" or "c" above who was forced to masturbate oneself or touch the intimate part of another.
The penalties for felony sexual battery may include:
- Formal probation;
- 2, 3 or 4 years in State Prison;
- A maximum $10,000.00 fine; and
- Registration as a sex offender.
An experienced sexual battery attorney in Orange County will be familiar with the possible defenses to this type of charge. They may include:
1) Consent: In a situation where a person did not want his or her intimate parts touched but, they did not convey this to the defendant and did not ask them to stop, the defendant would be under the reasonable belief that the touching was consensual.
2) Insufficient evidence: In felony sexual battery, where a person touches a person's intimate part over their clothes, there was no bare skin touching. Or, if two individuals willingly go to a secluded area, one party begins to force themselves on the other and the other says to stop, if the person stops, there is no restraint.
3) False allegations/Innocence: It is not uncommon for people to be falsely accused for purposes of revenge, jealousy, anger or in an effort to interfere with a child custody dispute.
If you or someone you know has been falsely accused of sexual battery, it is important to consult with an experienced criminal defense attorney in the County in which the case is pending. An Orange County sexual battery attorney who is familiar with the individual courts, judges, clerks and district attorneys will be in a better position to get the most favorable outcome for their client.