CALCRIM No. 938. Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
938.Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4(e)(1)].
To prove that the defendant is guilty of this crime, the People must
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.]
<Defense: Reasonable Belief in Consent>
[The defendant is not guilty of sexual battery if (he/she) actually and
reasonably believed that the other person consented to the touching [and
actually and reasonably believed that (he/she) consented throughout the
act of touching]. The People have the burden of proving beyond a
reasonable doubt that the defendant did not actually and reasonably
believe that the other person consented. If the People have not met this
burden, you must find the defendant not guilty.]
New January 2006, Revised February 2016, September 2017
The court has a sua sponte duty to give an instruction defining the elements of the
The court has a sua sponte duty to instruct on the defense of mistaken but honest
and reasonable belief in consent if there is substantial evidence of equivocal conduct
that would have led a defendant to reasonably and in good faith believe consent
existed where it did not. (See People v. Andrews (2015) 234 Cal.App.4th 590, 602
[184 Cal.Rptr.3d 183]; following People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153-158
[125 Cal.Rptr. 745, 542 P.2d 1337].)
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
• 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].
LESSER INCLUDED OFFENSES
• 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
• 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 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.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 26.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 938
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22 (Matthew Bender).
939-944. Reserved for Future Use
CALCRIM No. 938 ASSAULTIVE AND BATTERY CRIMES