California Criminal Jury Instructions (CALCRIM) (2017)

936. Sexual Battery on Institutionalized Victim

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936.Sexual Battery on Institutionalized Victim (Pen. Code,
§§ 242, 243.4(b) & (d))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—defendant touched>
[1. While <insert name of complaining witness> was
institutionalized for medical treatment and was seriously
disabled or medically incapacitated, the defendant touched an
intimate part of <insert name of complaining
witness>;]
<Alternative 1B—caused complaining witness to touch>
[1. While <insert name of complaining witness> was
institutionalized for medical treatment and was seriously
disabled or medically incapacitated, the defendant (caused
<insert name of complaining witness> to touch (his/
her) own intimate part/ [or] caused <insert name of
complaining witness> to touch the intimate part of defendant [or
someone else]);]
2. The touching was done against ’s <insert name of
complaining witness> will;
AND
3. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse.
An intimate part is a female’s breast or the anus, groin, sexual organ or
buttocks of anyone.
Contact must have been made with ’s <insert name of
complaining witness> bare skin. This means that:
1. The defendant must have touched the bare skin of ’s
<insert name of complaining witness> intimate part;
OR
2. ’s <insert name of complaining witness> bare skin
must have touched the defendant’s [or ’s <insert
name or description of third person>] intimate part either directly
or through (his/her) clothing.
[Someone is institutionalized if he or she is a patient in a hospital,
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medical treatment facility, nursing home, acute care facility, or mental
hospital.]
[Someone is seriously disabled if he or she has severe physical or sensory
disabilities.]
[Someone is medically incapacitated if he or she is incapacitated because
of prescribed sedatives, anesthesia, or other medication.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent,a person must act freely and voluntarily
and know the nature of the act.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give either alternative 2A or 2B depending on the evidence in the case. The
committee has concluded that the direct touching requirement for felony sexual
battery is satisfied when (1) the defendant forces the alleged victim to touch the
defendant’s intimate parts through the defendant’s clothing with the alleged victim’s
bare skin; (2) the defendant forces the alleged victim to touch any part of the
defendant with the victim’s unclothed intimate part, whether the defendant’s body
is clothed or not; or (3) the defendant touches the alleged victim’s bare intimate
part either directly or through clothing. If a defendant is only charged under Penal
Code section 243.4(a), the defendant must touch the victim’s intimate part, not the
other way around. (People v. Elam (2001) 91 Cal.App.4th 298, 309–310 [110
Cal.Rptr.2d 185].)
The committee omitted the word “masturbate” from the elements because the plain
language of Penal Code section 243.4(d) requires only that the victim be compelled
to touch him-or herself, and a further finding of whether that act of touching was
actually masturbation is unnecessary.
Give the bracketed definition of “against a person’s will” on request.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(b) & (d).
Institutionalized. Pen. Code, § 243.4(g)(5).
• Intimate Part. Pen. Code, § 243.4(g)(1).
• Medically Incapacitated. Pen. Code, § 243.4(g)(4).
• Seriously Disabled. Pen. Code, § 243.4(g)(3).
• Touches Defined. Pen. Code, § 243.4(f).
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• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467].
• Specific Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100
Cal.Rptr.2d 680].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.22[1] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Misdemeanor Sexual Battery. Pen. Code, § 243.4(e)(1).
COMMENTARY
In a case addressing the meaning of “for the purpose of . . . sexual abuse” in the
context of Penal Code section 289, one court stated, “when a penetration is
accomplished for the purpose of causing pain, injury or discomfort, it becomes
sexual abuse, even though the perpetrator may not necessarily achieve any sexual
arousal or gratification whatsoever.” (People v. White (1986) 179 Cal.App.3d 193,
205 [224 Cal.Rptr. 467].) If the court concludes it this reasoning applies to the
crime sexual battery and a party requests a definition of “sexual abuse,” the
following language can be used:
Sexual abuse means any touching of a person’s intimate parts in order to cause
pain, injury, or discomfort. The perpetrator does not need to achieve any sexual
arousal or sexual gratification.
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