California Criminal Jury Instructions (CALCRIM) (2017)

937. Sexual Battery: By Fraudulent Representation

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937.Sexual Battery: By Fraudulent Representation (Pen. Code,
§§ 242, 243.4(c))
The defendant is charged [in Count ] with sexual battery by
fraudulent representation [in violation of Penal Code section 243.4(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant touched an intimate part of ’s <insert
name of complaining witness> body;
2. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse;
3. The defendant fraudulently represented that the touching served
a professional purpose;
AND
4. The person touched was not conscious of the sexual nature of the
act because of the fraudulent representation.
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 the defendant must
have touched the bare skin of ’s <insert name of complaining
witness> intimate part either directly or through the defendant’s
clothing.
A person is not conscious of the sexual nature of the act if he or she is
not aware of the essential characteristics of the act because the
perpetrator fraudulently represented that the touching served a
professional purpose when it did not.
New January 2006; Revised February 2012, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(c).
Intimate Part Defined. Pen. Code, § 243.4(g)(1).
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• Touches Defined. Pen. Code, § 243.4(f).
• Unconscious of Nature of Act Defined. See Pen. Code, § 261(a)(4)(D) [in
context of rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 74.
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 is not a lesser included offense of sexual battery by
misrepresentation of professional purpose under the statutory elements
test. People v. Robinson (2016) 63 Cal.4th 200, 210–213 [202 Cal.Rptr.3d
485, 370 P.3d 1043].
• Attempted sexual battery is not a lesser included offense of sexual battery by
fraudulent representation. People v. Babaali (2009) 171 Cal.App.4th 982, 1000
[90 Cal.Rptr.3d 278].
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.
RELATED ISSUES
Consent Obtained by Fraudulent Representation
Aperson may induce someone else to consent to engage in a sexual act by a false
or fraudulent representation made with an intent to create fear, and which does
induce fear and would cause a reasonable person to act contrary to his or her free
will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to obtain
consent, it does not involve physical force or violence. (See People v. Cardenas
(1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567].)
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 937
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