• 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
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 (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].
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
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