CALCRIM No. 938. Sexual Battery: Misdemeanor
Judicial Council of California Criminal Jury Instructions (2017 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
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].
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.22 (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.
939–944. Reserved for Future Use
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 938
© Judicial Council of California.