937. Sexual Battery: By Fraudulent Representation
The defendant is charged [in Count ______] with sexual battery by fraudulent representation.
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;
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 though 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.
The court has a sua sponte duty to give an instruction defining the elements of the crime.
Elements. Pen. Code, §§ 242, 243.4(c).
Intimate Part Defined. Pen. Code, § 243.4(g)(1).
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].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.22 (Matthew Bender).
Lesser Included Offenses
Assault. Pen. Code, § 240.
Misdemeanor Sexual Battery. Pen. Code, § 243.4(e)(1).
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.
Consent Obtained by Fraudulent Representation
A person 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].)
(New January 2006)