Criminal Law

938. Sexual Battery: Misdemeanor

The defendant is charged [in Count ______] with sexual battery.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant touched an intimate part of <insert name of complaining witness>;

2. The touching was done against ______'s<insert name of complaining witness> will;


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.

Touching, as used here, means making physical contact with another person. Touching includes contact made through the clothing.

[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.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

Give the bracketed definition of "against a person's will" on request.


Elements. Pen. Code, § 243.4(e)(1).

Touches Defined. Pen. Code, § 243.4(e)(2).

Intimate Part Defined. Pen. Code, § 243.4(g)(1).

Consent Defined. Pen. Code, §§ 261.6, 261.7.

Specific-Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100 Cal.Rptr.2d 680].

Defendant Must Touch Intimate Part of Victim. People v. Elam (2001) 91 Cal.App.4th 298, 309-310 [110 Cal.Rptr.2d 185].

Defendant Need Not Touch Skin. People v. Dayan (1995) 34 Cal.App.4th 707, 716 [40 Cal.Rptr.2d 391].

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[2] (Matthew Bender).


In a case addressing the meaning of for the "purpose of . . . sexual abuse" in the context of Penal Code section 289, one court has stated that "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 that this reasoning applies to the crime of sexual battery and a party requests a definition of "sexual abuse," the following language may 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.

(New January 2006)