CACI No. 1306. Sexual Battery - Essential Factual Elements (Civ. Code, § 1708.5)

Judicial Council of California Civil Jury Instructions (2024 edition)

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1306.Sexual Battery - Essential Factual Elements (Civ. Code,
§ 1708.5)
[Name of plaintiff] claims that [name of defendant] committed a sexual
battery. To establish this claim, [name of plaintiff] must prove the
following:
1. [(a) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff]’s [sexual organ/anus/
groin/buttocks/ [or] breast], and a sexually offensive contact with
[name of plaintiff] resulted, either directly or indirectly;]
1. [OR]
1. [(b) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff] by use of [name of
defendant]’s [sexual organ/anus/groin/buttocks/ [or] breast], and a
sexually offensive contact with [name of plaintiff] resulted, either
directly or indirectly;]
1. [OR]
1. [(c) That [name of defendant] caused an imminent fear of a
harmful [or offensive] contact with [[name of plaintiff]’s [sexual
organ/anus/groin/buttocks/ [or] breast]/ [or] [name of plaintiff] by
use of [name of defendant]’s [sexual organ/anus/groin/buttocks/
[or] breast]], and a sexually offensive contact with [name of
plaintiff] resulted, either directly or indirectly;]
1. [OR]
1. [(d) That [name of defendant] caused contact between a sexual
organ, from which a condom had been removed, and [name of
plaintiff]’s [sexual organ/anus/groin/buttocks/ [or] breast];]
1. [OR]
1. [(e) That [name of defendant] caused contact between [a/an]
[sexual organ/anus/groin/buttocks/ [or] breast] and [name of
plaintiff]’s sexual organ from which [name of defendant] had
removed a condom;]
1. AND
2. That [name of plaintiff] did not [consent to the touching/verbally
consent to the condom being removed]; and
3. That [name of plaintiff] was harmed [or offended] by [name of
defendant]’s conduct.
[“Offensive contact” means contact that offends a reasonable sense of
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personal dignity.]
New October 2008; Revised May 2022
Directions for Use
Omit any of the options for element 1 that are not supported by the evidence. If
more than one are at issue, include the word “OR” between them.
For sexual battery under Civil Code section 1708.5(d)(1) (defining “intimate part”),
unconsented touching of a breast must involve the breast of a female. The
instruction may require modification if there is a factual question on this issue.
Use the second bracketed alternative in element 2 only if option (d) or option (e) is
at issue. (Compare Civ. Code, § 1708.5(a), (b), (c) with Civ. Code, § 1708.5(d), (e).)
Modification of the instruction will be necessary if the plaintiff’s claim involves any
of options (a)-(c) and option (d) or option (e) because the consent requirement is
not the same.
Give the bracketed words “or offensive” in element 1 and “or offended” in element
3 and include the optional last sentence if the offensive nature of the conduct is at
issue. In most cases, it will be clear whether the alleged conduct was offensive. The
offensive nature of the conduct will most likely not be at issue if the conduct was
clearly harmful.
For a definition of “intent,” see CACI No. 1320, Intent.
Sources and Authority
Sexual Battery. Civil Code section 1708.5.
Consent as Defense. Civil Code section 3515.
“A cause of action for sexual battery under Civil Code section 1708.5 requires
the batterer intend to cause a ‘harmful or offensive’ contact and the batteree
suffer a ‘sexually offensive contact.’ Moreover, the section is interpreted to
require that the batteree did not consent to the contact.” (Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1225 [44 Cal.Rptr.2d 197], internal citation
omitted.)
“The element of lack of consent to the particular contact is an essential element
of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198
Cal.Rptr. 249].)
“As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609-610 [278 Cal.Rptr. 900].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452-488
ASSAULT AND BATTERY CACI No. 1306
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3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.27,
58.55 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.27 (Matthew
Bender)
California Civil Practice: Torts §§ 12:7-12:9, 12:36-12:39 (Thomson Reuters)
1307-1319. Reserved for Future Use
CACI No. 1306 ASSAULT AND BATTERY
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