By:   Roman P. Mosqueda, Esq.

Member, California Public Defenders Association

            Touching  the buttocks or other intimate part of another person  against her/his will for sexual arousal, gratification or abuse, and conviction for such sexual battery may result in an annual registration as a sex offender with the chief of police.

            Section 243.4(e)(1) of the California Penal Code defines misdemeanor sexual battery as occurring when “(a)ny person … touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification or sexual abuse.”

            It is “punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment,  but “if the defendant was an employer and the victim an employee of the defendant,” the fine is increased to a maximum of three thousand dollars ($3,000).   See Section 243.4(e)(1), Penal Code.

Definitions Of Touching

And Intimate Part:

            “Touches” or “touching” means “physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.”  See Section 243.4(f), Penal Code.

            And “intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.”   See Section 243.4(g)(1), Penal Code.

            Thus, touching may be done directly by touching the intimate part, or through clothing of the perpetrator or the victim of sexual battery.

            Curiously enough, the breast of a male is not considered as an intimate part, although sexual battery can be committed by a female on a male, or by a male on another male.

Other Types Of

Sexual Battery:

            Section 243.4(a) of the Penal Code punishes sexual battery when the victim is “unlawfully restrained by the accused or an accomplice,” with a misdemeanor penalty of imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or  by a felony penalty of imprisonment  in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

          Section 243.4(b) of the Penal Code punishes sexual battery when the victim “is institutionalized for medical treatment and who is seriously disabled or medically incapacitated,” with the same misdemeanor penalty or the same felony penalty, stated in section 243.4(a) of the Penal Code

Section 243.4 (c)of the Penal Code punishes sexual battery when the victim “is at the time unconscious of the nature of act because the perpetrator fraudulently represented that the touching served a professional purpose, with the same misdemeanor penalty or the same felony penalty, stated in Section 243.4(a) of the Penal Code.

And lastly, Section 243.4(d) of the Penal Code punishes sexual battery when the perpetrator causes the victim against his/her will, while being unlawfully restrained by the accused or an accomplice or being institutionalized for medial treatment and being seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, with the same misdemeanor penalty or the same felony penalty, stated in Section  243.4(a) of the Penal  Code.

And if the accused commits a violation of aforesaid Section 243.4(a), or (b), or (c), or (d) of the Penal Code against a minor (a person under 18 years of age) when the accused has a prior felony conviction for a violation of Section 243.4 of the Penal Code, the penalty is imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).  See Section 243.4(j) of the Penal Code.

Sexual Battery Or Abuse

As Aggravated Felony:

            The phrase “aggravated felony” is a term of art under Section 101(a)(43) of the Immigration and Nationality Act, not under the California Penal Code, which has no definition, nor classification, of aggravated felony.

            Section 101(a)(43)(A) of aforesaid Act merely classifies sexual abuse of a minor as an aggravated felony, without defining “sexual abuse of a minor.”

            Thus, the Act defers to federal and/or state penal code for the definition of sexual abuse of a minor.  The federal offense of sexual abuse of a minor  (in 18 U.S.C. §2243(a)) punishes “whoever … knowingly engages in a sexual act with another person who: (1) has attained the age of 12 but has not attained the age of 16 years, and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.”

            The Ninth  Circuit, in United States v. Baron-Medina, 187 F.3d 1144 (9^th Cir. 1999), held that a conviction under California law (Section 288 of the Penal Code) for committing a lewd or lascivious act on a child under the age of fourteen is an aggravated felony.

            Aforesaid Section 243.4(j) of the California Penal Code specifically refers to sexual battery or abuse of a minor, which is a felony.

            And subsection (j) provides a felony punishment to an accused with a prior felony conviction, as stated above.  But it is not the commission of sexual battery against a minor that elevates the offense from a “wobbler” (either a misdemeanor or felony) to an outright felony, but prior conviction of a felony under Section 243.4(a), or (b) or (c), or (d) of the Penal Code.

            But the prosecutor (District Attorney or City Attorney) may decide to file a felony, instead of a misdemeanor, complaint under Section 243.4(a), (b) (c), or (d) of the Penal Code), whether the victim is an adult or a minor.

            Sexual abuse of an adult is not, however, an aggravated felony, under Section 101(a)(43)(A) of the Act, unlike sexual abuse of a minor, for which there is no relief to deportation or removal, except withholding of removal and relief under the U.N. Convention Against Torture.

Annual Registration Of

Sex Offenders:

            Before you decide to touch the buttocks of another person against his/her will for sexual gratification or abuse, think of the consequences of criminal conviction as discussed above and the annual registration as a sex offender.

            Indeed, Section 290 of the California Penal Code states that every person who is convicted in any court in this state of a violation of Section 243.4, among other sections of the Penal Code, shall be required to register annually within five working days of his or her birthday with the chief of police of the city in which he or she is residing, for the rest of his or her life.

            In a criminal case involving conviction for sexual battery under Section 243.4 of the Penal Code, the prosecutor and the Judge in the Downey Court refused the Author’s proposed waiver of annual registration as a sex offender by his client, on the ground that the phrase “shall be required to register” in Section 290(a)(1) of the Penal Code is mandatory.

            But in a recent case involving sexual battery under the same  Section 243.4 of the Penal Code, the prosecutor in the Fontana Court agreed to the Author’s plea bargain of annual registration as a sex offender by his client only during the three-year probation period.

            As a registered sex offender, you can be ostracized, and may be practically shamed to move out of a community.  So, beware of touching another person’s intimate part against his/her will for sexual arousal, gratification or abuse.

            (The Author, Roman P. Mosqueda, has personally defended many defendants accused of sexual battery, abuse, lewd act on a child, etc. in the Superior Courts in California)