SB 442: Sexual battery.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2024-09-29
Current Status:
Passed
(2024-09-29: Chaptered by Secretary of State. Chapter 981, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law prohibits several forms of sexual battery, including, among others, the touching of an intimate part of another person, if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. Existing law also defines sexual battery as causing another person, against that persons will while that person is unlawfully restrained by the accused or an accomplice, to touch an intimate part of either of those persons or a 3rd person for the purpose of sexual arousal, sexual gratification, or sexual abuse. Under existing law, sexual battery is punishable as a misdemeanor or a felony.
This bill would make it a misdemeanor for a person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a 3rd person.
By creating a new crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law prohibits several forms of sexual battery, including, among others, the touching of an intimate part of another person, if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. Existing law also defines sexual battery as causing another person, against that persons will while that person is unlawfully restrained by the accused or an accomplice, to touch an intimate part of either of those persons or a 3rd person for the purpose of sexual arousal, sexual gratification, or sexual abuse. Under existing law, sexual battery is punishable as a misdemeanor or a felony.
This bill would make it a misdemeanor for a person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a 3rd person.
By creating a new crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law prohibits several forms of sexual battery, including, among others, the touching of an intimate part of another person, if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. Existing law also defines sexual battery as causing another person, against that persons will while that person is unlawfully restrained by the accused or an accomplice, to touch an intimate part of either of those persons or a 3rd person for the purpose of sexual arousal, sexual gratification, or sexual abuse. Under existing law, sexual battery is punishable as a misdemeanor or a felony.
This bill would make it a misdemeanor for a person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a 3rd person.
By creating a new crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law prohibits several forms of sexual battery, including, among others, the touching of an intimate part of another person, if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. Existing law also defines sexual battery as causing another person, against that persons will while that person is unlawfully restrained by the accused or an accomplice, to touch an intimate part of either of those persons or a 3rd person for the purpose of sexual arousal, sexual gratification, or sexual abuse. Under existing law, sexual battery is punishable as a misdemeanor or a felony.
This bill would make it a misdemeanor for a person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a 3rd person.
By creating a new crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
(a)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)(1)Any person who 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, or any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of misdemeanor sexual battery, 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. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Civil Rights Department for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches 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.
(f)As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(h)This section does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)(1)Any person who 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, or any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of misdemeanor sexual battery, 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. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Civil Rights Department for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches 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.
(f)As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(h)This section does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)(1)Any person who 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, or any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of misdemeanor sexual battery, 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. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Civil Rights Department for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches 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.
(f)As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(h)This section shall not be construed to does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d)Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e)(1)Any person who 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, or any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that persons will, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of misdemeanor sexual battery, 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. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Civil Rights Department for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2)As used in this subdivision, touches 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.
(f)As used in subdivisions (a), (b), (c), and (d), touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g)As used in this section, the following terms have the following meanings:
(1)Intimate part means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2)Sexual battery does not include the crimes defined in Section 261 or 289.
(3)Seriously disabled means a person with severe physical or sensory disabilities.
(4)Medically incapacitated means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5)Institutionalized means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6)Minor means a person under 18 years of age.
(h)This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i)In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j)A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| Sep 29, 2024 | Chaptered by Secretary of State. Chapter 981, Statutes of 2024. |
| Sep 29, 2024 | Approved by the Governor. |
| Sep 4, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 28, 2024 | In Senate. Ordered to engrossing and enrolling. |
| Aug 28, 2024 | (Corrected August 30). |
| Aug 27, 2024 | Read third time. Passed. (Ayes 77. Noes 0. Page 6663.) Ordered to the Senate. |
| Aug 19, 2024 | Read second time. Ordered to third reading. |
| Aug 15, 2024 | From committee: Do pass. (Ayes 14. Noes 0.) (August 15). |
| Jul 2, 2024 | July 2 set for first hearing. Placed on suspense file. |
| Jun 26, 2024 | June 26 hearing postponed by committee. |
| Jun 4, 2024 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To consent calendar. (Ayes 7. Noes 0.) (June 4). Re-referred to Com. on APPR. |
| Jul 11, 2023 | July 11 set for first hearing canceled at the request of author. |
| Jun 8, 2023 | Referred to Com. on PUB. S. |
| May 31, 2023 | In Assembly. Read first time. Held at Desk. |
| May 30, 2023 | Read third time. Passed. (Ayes 40. Noes 0. Page 1364.) Ordered to the Assembly. |
| May 26, 2023 | Ordered to special consent calendar. |
| May 22, 2023 | Read second time. Ordered to third reading. |
| May 18, 2023 | Read second time and amended. Ordered to second reading. |
| May 18, 2023 | From committee: Do pass as amended. (Ayes 7. Noes 0. Page 1170.) (May 18). |
| May 12, 2023 | Set for hearing May 18. |
| Apr 10, 2023 | April 10 hearing: Placed on APPR suspense file. |
| Mar 28, 2023 | Set for hearing April 10. |
| Mar 21, 2023 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0. Page 426.) (March 21). Re-referred to Com. on APPR. |
| Mar 2, 2023 | Set for hearing March 21. |
| Feb 22, 2023 | Referred to Com. on PUB S. |
| Feb 14, 2023 | From printer. May be acted upon on or after March 16. |
| Feb 13, 2023 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
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Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 27, 2024 | SB 442 Limón Senate Third Reading By Bennett | Assembly Floor |
Passed |
|
| Aug 15, 2024 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 4, 2024 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Public Safety |
Passed |
|
| May 30, 2023 | Special Consent SB442 Limón et al. | Senate Floor |
Passed |
|
| May 18, 2023 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 10, 2023 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Mar 21, 2023 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California District Attorneys Association | ** Support | |
| California State Sheriffs' Association | ** Support | |
| Erik Nasarenko, District Attorney of Ventura County | ** Support | |
| Los Angeles County District Attorney'S Office | ** Support | |
| Ventura County | * Support | Mar 21, 2023 |
| Ventura County Office of the District Attorney | ** Support |
SENATE THIRD READING
STR Bill Id:SB 442
Author:(Limón)
As Amended Ver:May 18, 2023
Majority vote
SUMMARY
Expands misdemeanor sexual battery to include when a person for the purpose of sexual arousal causes another, against their will, to masturbate or touch an intimate part of either of those persons or a third person.
Major Provisions
COMMENTS
According to the Author
"[c]urrent law defines a misdemeanor violation of sexual battery as the unwanted touching of the intimate body part of another. Missing from this definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator. This gap in the law is creating real world examples of sexual abuse, where no charges of sexual battery can be brought.
"In one recent incident, an employer took an employee's hand against her will and placed it on his groin area over his clothes. Because the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery. Under current law, the perpetrator could only be charged with simple battery, the same charge that would apply to a simple push on the shoulder. This change ensures that all individuals that seek to commit sexual battery are held accountable. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim."
Arguments in Support
According to the California District Attorneys Association "The current definition of misdemeanor sexual battery in Penal Code section 243.4 omits the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator or other person without applying restraint or force in excess of the act that causes the touching. Common examples include a perpetrator who thrusts their groin against a victim or places a victim's hand on the perpetrator's groin area. This gap in the law lets perpetrators remain unaccountable for what is objectively offensive and criminal behavior.
"Victims feel no less violated when they are forced to touch another person than when another person touches the victim, and thus sexual batterers need to be held accountable, irrespective of whether the perpetrator touches the victim's intimate body part or forces the victim to touch the body part of another."
Arguments in Opposition
None Submitted.
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
- Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount to adjudicate cases of the misdemeanor expanded by this bill. To the extent the bill makes it easier to prosecute sexual battery cases involving the conduct added by this bill, additional cases may be filed by prosecutors and tried in court. A defendant charged with a misdemeanor is entitled to a jury trial and, if the defendant is indigent, legal representation provided by the government. Actual court costs will depend on the number of cases filed and the amount of court time needed to adjudicate each case. It generally costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
- Costs (local funds, General Fund) to the counties of an unknown amount to incarcerate people convicted of the misdemeanor expanded by this bill. The average annual cost to incarcerate one person in county jail is approximately $29,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.
According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
VOTES
SENATE FLOOR: 40-0-0
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASM PUBLIC SAFETY: 7-0-1
YES: McCarty, Alanis, Stephanie Nguyen, Holden, Ting, Wilson, Zbur
ABS, ABST OR NV: Gallagher
ASM APPROPRIATIONS: 14-0-1
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Pellerin, Ta, Villapudua
ABS, ABST OR NV: Jim Patterson
UPDATED
VERSION: May 18, 2023
CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0003996
Date of Hearing: July 2, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
SBPCA Bill Id:SB 442
Author:(Limón) – As Amended Ver:May 18, 2023
Policy Committee: | Public Safety | Vote: | 7 - 0 |
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Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill expands the crime of sexual battery, making it a misdemeanor for a person to, for the purpose of sexual arousal, gratification, or abuse, cause another person, against their will, to masturbate or touch an intimate part of either person or a third person.
FISCAL EFFECT:
- Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount to adjudicate cases of the misdemeanor expanded by this bill. To the extent the bill makes it easier to prosecute sexual battery cases involving the conduct added by this bill, additional cases may be filed by prosecutors and tried in court. A defendant charged with a misdemeanor is entitled to a jury trial and, if the defendant is indigent, legal representation provided by the government. Actual court costs will depend on the number of cases filed and the amount of court time needed to adjudicate each case. It generally costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
- Costs (local funds, General Fund) to the counties of an unknown amount to incarcerate people convicted of the misdemeanor expanded by this bill. The average annual cost to incarcerate one person in county jail is approximately $29,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.
According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
COMMENTS:
- Purpose. This bill is sponsored by the office of the Ventura County District Attorney. According to the author:
Current law defines a misdemeanor violation of sexual battery as the unwanted touching of the intimate body part of another. Missing from this definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator. This gap in the law is creating real world examples of sexual abuse, where no charges of sexual battery can be brought…This change ensures that all individuals that seek to commit sexual battery are held accountable. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim.
- Background. Penal Code section 243.4, subdivision (e) specifies that misdemeanor sexual battery occurs when a defendant touches the intimate parts of a victim, against the victim’s will and for the purpose of the defendant’s sexual arousal, sexual gratification, or sexual abuse. This offense is punishable by up to six months in county jail, a fine of up to $2,000, or both a fine and imprisonment.
This bill expands the definition of misdemeanor sexual battery to include a circumstance in which a defendant, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes a victim to masturbate or touch an intimate part of the defendant or another person against the victim’s will. In other words, this bill clarifies that misdemeanor sexual battery includes a situation where a defendant forces a victim to touch someone else, rather than the defendant touching the victim. As described in the analysis of this bill by the Assembly Committee on Public Safety, this bill may be considered duplicative of existing law, since the conduct covered by this bill may also be charged as alternative felony-misdemeanor sexual battery in most circumstances. (See Pen. Code § 243.4, subd. (d).) However, to the extent that expanding the definition of misdemeanor sexual battery makes it easier to file charges and obtain convictions when a defendant forces a victim to touch another person, the bill may result in costs to the courts and counties to adjudicate these cases and incarcerate defendants convicted of this offense, as described above.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing: June 4, 2024
Counsel: Ilan Zur
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Kevin McCarty, Chair
SBPCA Bill Id:SB 442
Author:(Limón) – As Amended Ver:May 18, 2023
SUMMARY: Expands misdemeanor sexual battery to include when a person for the purpose of sexual arousal causes another, against their will, to masturbate or touch an intimate part of either of those persons or a third person.
EXISTING LAW:
- Requires persons convicted of specified sexual battery offenses to register as a sex offender. (Pen. Code, § 290, subd. (d)(3).)
- Provides that any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched, and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (a).)
- Provides that any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (b).)
- Provides that any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (c).)
- Provides that any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (d).)
- Provides that a violation of any of the above-listed offenses is a wobbler, punishable either as a misdemeanor by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000; or as a felony by imprisonment in state prison for two, three, or four years, and by a fine not exceeding $10,000. (Pen. Code, § 243.4, subds. (a)-(d).)
- Provides that, for the above-listed offenses, “touches” means physical contact with the skin of another person, whether accomplished directly or through the clothing of the person committing the offense, or through the clothing of the victim. (Pen. Code, § 243.4, subd. (f).)
- Provides that in the case of a felony conviction, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing. (Pen. Code, § 243.4, subd. (i).)
- States that any person who 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, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding six months, or by both. (Pen. Code, § 243.4, subd. (e)(1).)
- Provides that “touches,” for the purpose of the misdemeanor sexual battery, 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. (Pen. Code, § 243.4, subd. (e)(2).)
- Defines “intimate part” as the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (Pen. Code, § 243.4, subd. (g)(1).)
- Provides that battery is any willful and unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)
- Provides that a battery is a misdemeanor, punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding six months, or by both. (Pen. Code, § 243, subd. (a).)
FISCAL EFFECT: Unknown.
COMMENTS:
- Author's Statement: According to the author, “[c]urrent law defines a misdemeanor violation of sexual battery as the unwanted touching of the intimate body part of another. Missing from this definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator. This gap in the law is creating real world examples of sexual abuse, where no charges of sexual battery can be brought.
“In one recent incident, an employer took an employee's hand against her will and placed it on his groin area over his clothes. Because the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery. Under current law, the perpetrator could only be charged with simple battery, the same charge that would apply to a simple push on the shoulder. This change ensures that all individuals that seek to commit sexual battery are held accountable. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim.”
- Types of Sexual Battery: Penal Code Section 243.4, the sexual battery statute, includes five subdivisions (a)-(e) that define sexual battery based on the defendant’s conduct and set the punishment for each respective situation.
Subdivisions (a), (b), and (c) only apply to situations where the defendant touches the intimate parts of the victim, not the other way around. (People v. Elam (2001) 91 Cal.App.4th 298, 310.) They require that the touching be against the will of the person touched and that the victim be unlawfully restrained, institutionalized for medical treatment or seriously disabled, or not conscious of the sexual nature of the act because of a fraudulent representation that the touching served professional purpose. (Pen. Code, § 243.4.)[1] These offenses require that the touching involve physical contact with the skin of another person, whether accomplished directly or through the clothing of the perpetrator or victim. (Pen. Code, § 243.4, subd. (f).)These crimes are “wobblers”, meaning they can be prosecuted as a misdemeanor or a felony. (Id.)
Subdivision (e) is misdemeanor sexual battery. Similar to subdivisions (a), (b), and (c), misdemeanor sexual battery requires that the touching be against the will of the person touched and is only chargeable where the defendant touches the intimate parts of the victim. However, unlike subdivisions (a), (b), and (c), which can be charged as a felony, misdemeanor sexual battery contains no requirement that the victim be unlawfully restrained, institutionalized for medical treatment, or not conscious of the sexual nature of the act. Additionally, the touching element of misdemeanor sexual battery does not require contact with the skin of another person. This makes misdemeanor sexual battery more broadly applicable to sexual touching of a victim against their will, even where the victim is not unlawfully restrained.
Subdivision (d) proscribes conduct different from the other sexual batteries. Subdivision (d) covers the situation where the defendant causes the victim to masturbate or touch the intimate part of the defendant or another person. Subdivision (d) is a wobbler, and like the other wobblers, subdivision (d) requires that the touching is against the victim’s will, that the victim is unlawfully restrained or institutionalized for medical treatment, and the “touching” requires the victim to touch the skin of the defendant or another person’s intimate parts. (Pen. Code, § 234.4, subds. (d) & (f).)
- Against A Person’s Will: Both wobbler sexual battery and misdemeanor sexual battery require that the touching is against the will of the victim, regardless of whether the defendant is touching the victim, or the defendant causes the victim to touch the defendant under subdivision (d). The Penal Code defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will… [where the] person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. (Pen. Code, § 261.6, subd. (a).) While “against a victim’s will” is not defined in statute, the California Supreme Court has noted that in the context of sexual assault “it is settled that ‘without the victim’s consent” has the same meaning as ‘against the victim’s will’.” (People v. Robinson (2016) 63 Cal.4th 200, 208). Thus, the definition of “consent” in Penal Code section 261.6 informs when touching is “against a victim’s will” for purposes of sexual battery.
- Unlawful Restraint: As noted above, unlike misdemeanor sexual battery, wobbler sexual battery under subdivision (a) [defendant touching the victim] and subdivision (d) [victim touching the defendant or another], both require that the victim be unlawfully restrained.
The California Penal Code does not define “unlawful restraint,” however, this term has been the interpreted by case law.
In People v. Alford (1991), 235 Cal.App.3d 799, 803 the court explained that the purpose of the sexual battery statute is to provide appropriate punishment for sexually abusive conduct that is physically traumatic and psychologically terrifying, even though it falls short of rape. Accordingly, the statute allows for felony prosecution when a touching occurs against the victim’s will while the victim is unlawfully restrained. (Ibid.) The term unlawful restraint “can be viewed as distinguishing the ‘nonsexual physical element’ of sexual battery from the more wanton ‘force, violence, or fear element of rape.’” (People v. Arnold (1992) 6 Cal.App.4th 18, 26.) Phrased differently, unlawful restraint is something more “than the mere exertion of physical effort necessary to commit the prohibited sexual act.” (Ibid.) “This may be because the essence of the offense is seen as the touching.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1660, fn. 4.)
This standard was articulated most clearly in People v. Arnold (1992) 6 Cal.App.4th 18, where the defendant contended that “unlawful restraint” required a “significant limitation” on the personal liberty of the victim. (Id. at p. 24). The court disagreed, holding that a person is unlawfully restrained when their “liberty is being controlled by words, acts, or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will.” (Id., at p. 28) (emphasis added.) The court noted that unlawful restraint does not require the prosecution to affirmatively establishing a victim’s unwillingness “when the circumstances suggest that the restraint was clearly unwelcome.” (Id. at p. 29). For example, a “victim’s unwillingness may be implied if grabbed by a stranger who proceeds to improperly touch the victim …. Such a restraint is clearly unwelcome and unlawful.” (Ibid.)
Notably, “unlawful restraint” does not require physical restraint, force, or threat of force with personal violence. (People v. Grant (1992) 8 Cal.App.4th 1105, 1110, 1112.) Rather, conduct that forces the victim to remain where they do not voluntarily wish to be constitutes unlawful restraint within the meaning of the statute. (Ibid.) The court explained, “[t]here are many situations where one is compelled, i.e., forced, to do something against one’s will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure.” (Id., at 1112.) Unlawful restraint does not require a victim to say “‘I am afraid, please stop,’ when it is the defendant who has created the circumstances that have so paralyzed the victim in fear and thereby submission.” (People v. Perez-Robles (2023) 95 Cal.App.5th 222, 232.) (quoting People v. Iniguez (1994) 7 Cal.4th 847, 859.) For example, unlawful restraint can occur where a defendant’s actions create a situation where a victim “fre[eezes] in fear” and feels compelled to involuntarily remain in a situation (Ibid.)
The standard of unlawful restraint has been interpreted by state courts as follows:
In People v. Knight (Aug. 29, 2018, No. A150989) ___Cal.App.5th___ [2018 Cal. App. Unpub. LEXIS 5912, at *20-21], a court found unlawful restraint occurred when a defendant grabbed the victim by the hip and restricted her freedom of movement.
In People v. Krause (Apr. 19, 2007, C050840) ___Cal.App.4th___ [2007 Cal. App. Unpub. LEXIS 3140, at *9-10], a court found unlawful restraint occurred where a defendant roommate entered the victim’s bedroom while she was sleeping, knelt on the victim’s bed, and held the victim’s hand on his intimate parts.
In People v. Zaheer (2020) 54 Cal.App.5th 326, 354, a court found unlawful restraint occurred when a defendant grabbed a victims hand in a closed car and said “[d]on’t do it” in response to the victim’s attempting to open a car door.
In People v. Hughey (Jan. 12, 2018, No. A150114) ___Cal.App.5th___ [2018 Cal. App. Unpub. LEXIS 259, at *40], a court found unlawful restraint occurred when a defendant entered the victims hotel room uninvited and “shushed” the victim prior to unwanted sexual touching.
In In re J.V. (Sep. 10, 2009, No. F056619) ___Cal.App.4th___ [2009 Cal. App. Unpub. LEXIS 7301, at *17], a court found unlawful restraint occurred where the defendant pushed the victim onto the couch and subjected her to unwanted sexual touching.
In People v. Perez-Robles (2023) 95 Cal.App.5th 222, 232), a court found unlawful restraint occurred when a defendant massage therapist unlawfully restrained a patient in a closed room by moving her body and requesting that she remove her clothes, where the defendant had difficulty moving due to her advanced state of pregnancy.
- Effect of this Bill: Under existing law, a defendant who causes a victim to touch an intimate part of the victim, defendant, or third party, can be charged with wobbler sexual battery, as long as: 1) the touching is against the victim’s will; and 2) the victim is unlawfully restrained. This bill would expand the scope of misdemeanor sexual battery to similarly apply to situations where a defendant causes another person to touch the intimate parts of the defendant or another person, where the conduct is against the victim’s will, even if there is no unlawful restraint. For example, if a defendant grabbed a victim’s hand and placed it on the defendant’s intimate parts, where the victim did not act freely or voluntarily, did not indicate positive acts or attitudes indicating cooperation, or did not have knowledge of what the defendant was doing, then the defendant would be guilty of misdemeanor battery. This would be true even if there are no actions taken to control, restrain, or deprive a person’s liberty, and where the victim does not feel compelled to involuntarily remain in the situation, as required by unlawful restraint. Notably, defendant actions that are against a victim’s will can be expected to overlap with situations where those same actions cause the victim to freeze in fear or have their liberty controlled, i.e. be unlawfully restrained. Therefore, as noted below, the conduct this bill attempts to prohibit likely can already be prosecuted under existing law.
- The Cited Conduct of Concern Can Likely Already be Prosecuted: This bill is intended to address conduct “where a perpetrator causes the victim to touch an intimate body part of the perpetrator.” The sponsor of this bill, writing in support, describes an incident where the perpetrator, an employer, “took an employee’s hand against her will and placed it on his groin area over his clothes.” The sponsor contends that, “[b]ecause the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery.”
However, such conduct can likely already charged as either felony or misdemeanor sexual battery under Penal Code section 243.4 subdivision (d). As noted earlier, wobbler sexual battery of this nature requires that: (1) the defendant unlawfully restrained the victim; (2) the defendant caused the victim to touch the intimate part of the defendant or someone else; and (3) the touching was done against the victim’s will. (Pen. Code, § 234.4, subd. (d). The example at issue appears to meet all of the requisite elements of the offense:
(1) The victim was unlawfully restrained [i.e., the defendant took the victim’s hand thereby controlling the victim’s liberty. The hand taking is a “nonsexual physical act” that is something more than the mere exertion of physical effort necessary to commit the prohibited sexual touching (See, e.g., People v. Arnold (1992) 6 Cal.App.4th 18, 28 [explaining that being “grabbed by a stranger” “is clearly unwelcome and unlawful”].)];
(2) The victim’s hand touched the employer’s groin [i.e., an intimate part of the defendant]; and,
(3) The touching was against the victim’s will.
Further, in the case of a felony conviction, the fact that the defendant was an employer and the victim was an employee of the defendant would be a factor in aggravation in sentencing. (Pen. Code, § 243.4, subd. (i).) Alternatively, this offense could also be charged as battery, a misdemeanor, which is any “willful and unlawful use of force or violence upon the person of another,” although simple battery does not require sex offender registration as is required with sexual battery (Pen. Code, §§ 242 & 243.)
In sum, while this conduct is likely already chargeable, by clarifying that misdemeanor sexual battery applies to situations where a defendant causes a victim to touch an intimate part of that defendant, this bill would promote accountability by ensuring misdemeanor sexual battery can be charged in such situations where a victim is not necessarily unlawfully restrained, but the touching is still against their will.
- Argument in Support: According to the California District Attorneys Association “The current definition of misdemeanor sexual battery in Penal Code section 243.4 omits the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator or other person without applying restraint or force in excess of the act that causes the touching. Common examples include a perpetrator who thrusts their groin against a victim or places a victim’s hand on the perpetrator’s groin area. This gap in the law lets perpetrators remain unaccountable for what is objectively offensive and criminal behavior.
“Victims feel no less violated when they are forced to touch another person than when another person touches the victim, and thus sexual batterers need to be held accountable, irrespective of whether the perpetrator touches the victim’s intimate body part or forces the victim to touch the body part of another.”
- Arguments in Opposition: None submitted
- Related Legislation: AB 1039 (Rodriguez) of the 2023-2024 Legislative Session, would have expanded definition of the type sexual touching that, when done by an employee or agent of a public entity detention or health facility with a consenting adult who is confined in the facility, qualifies as criminal sexual activity and increases the penalty for this type of criminal sexual touching from a misdemeanor to an alternative felony-misdemeanor. AB 1039 was held in Assembly Appropriations Committee.
- Prior Legislation:
- AB 1033 (Cristina Garcia) of the 2017-2018 Legislative Session, would have made it a crime for a person, without consent of the other person, to remove or tamper with a condom when there was an agreement that a condom would be used, or to knowingly make a misrepresentation to the other person that a form of contraception other than a condom is being used, during sexual intercourse. AB 1033 was held in Senate Appropriations Committee.
- AB 2078 (Daly) of the 2017-2018 Legislative Session, would have expanded the crimes of rape, sodomy, oral copulation, and sexual penetration when committed by a professional while performing professional services on another person that entail having access to the other person’s body and increased the punishment for sexual battery by a person who performs professional services that entail having access to another person’s body, as specified. AB 2078 was held in Senate Appropriations Committee.
- SB 1421 (Romero), Chapter 302, Statutes of 2002, made touching an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, if the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, a sexual battery.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Ventura County Office of The District Attorney
Opposition
None
Analysis Prepared by: Ilan Zur
Except where the victim is unconscious of the nature of act due to fraudulent representation, where there is no requirement that the touching be against the will of the person’s touched. (Pen. Code, § 234.4(c).) ↑
Date of Hearing: July 11, 2023
Counsel: Liah Burnley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SBPCA Bill Id:SB 442
Author:(Limón) – As Amended Ver:May 18, 2023
SUMMARY: Expands misdemeanor sexual battery to include a person who for the purpose of sexual gratification or sexual abuse causes another, against their will, to masturbate or touch an intimate part of either of those persons or a third person.
EXISTING LAW:
- Provides that any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched, and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (a).)
- Provides that any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (b).)
- Provides that any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (c).)
- Provides that any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. (Pen. Code, § 243.4, subd. (d).)
- Provides that a violation of any of the above-listed offenses is a wobbler, punishable either as a misdemeanor by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000; or as a felony by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding $10,000. (Pen. Code, § 243.4, subds. (a)-(d).)
- Provides that, for the above-listed offenses, “touches” means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense. (Pen. Code, § 243.4, subd. (f).)
- Provides that in the case of a felony conviction, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing. (Pen. Code, § 243.4, subd. (i).)
- States that any person who 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, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding six months, or by both. (Pen. Code, § 243.4, subd. (e)(1).)
- Provides that “touches,” for the purpose of the above-listed offense, 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. (Pen. Code, § 243.4, subd. (e)(2).)
- Defines “intimate part” as the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (Pen. Code, § 243.4, subd. (g)(1).)
- Provides that a battery is any willful and unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)
- Provides that a battery is a misdemeanor, punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. (Pen. Code, § 243, subd. (a).)
FISCAL EFFECT:
COMMENTS:
- Author's Statement: According to the author, “Current law defines a misdemeanor violation of sexual battery as the unwanted touching of the intimate body part of another. Missing from this definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator. This gap in the law is creating real world examples of sexual abuse, where no charges of sexual battery can be brought.
“In one recent incident, an employer took an employee's hand against her will and placed it on his groin area over his clothes. Because the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery. Under current law, the perpetrator could only be charged with simple battery, the same charge that would apply to a simple push on the shoulder. This change ensures that all individuals that seek to commit sexual battery are held accountable. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim.”
- Sexual Battery: The sexual battery statute, Penal Code section 243.4 includes five subdivisions (a)-(e) that define sexual battery based on the defendant’s conduct and set the punishment for each respective situation.
Subdivisions (a), (b), and (c) cover situations where the defendant touches the intimate parts of the victim. These subdivisions require that the victim be unlawfully restrained, institutionalized for medical treatment, or not conscious of the sexual nature of the act because of a fraudulent representation. (People v. Elam (2001) 91 Cal.App.4th 298, 310.) Subdivisions (a), (b), and (c) are wobblers., i.e., either a felony or misdemeanor. (People v. Dayan (1995) 34 Cal.App.4th 707, 715, fn. 4; Pen. Code, § 17.)
Subdivision (e) is misdemeanor sexual battery. This subdivision covers situations where the defendant touches the intimate parts of the victim. For misdemeanor sexual battery, unlike subdivisions (a), (b), and (c), there is no requirement that the victim be unlawfully restrained, institutionalized for medical treatment, or not conscious of the sexual nature of the act. (People v. Dayan (1995) 34 Cal. App. 4th 707, 715-716.) These differences make the misdemeanor definition broader than the wobbler definition and as such, subdivision (e) proscribes a wider variety of conduct than subdivisions (a), (b), and (c).
To be guilty of either a wobbler sexual battery under subdivisions (a), (b), (c), or misdemeanor sexual battery under subdivision (e) the defendant must have touched the victim’s intimate parts, not the other way around. (People v. Elam (2001), supra, at p. 310; In re Gustavo (1989) 214 Cal. App. 3d 1485, 1498.)
Subdivision (d) proscribes conduct different from the other sexual batteries. Subdivision (d) covers the situation where the defendant causes the victim to masturbate or touch the intimate part of the defendant or another person. Subdivision (d) is a wobbler, and like the other wobblers, subdivision (d) requires that the victim is unlawfully restrained or institutionalized for medical treatment, and the “touching” requires the victim to touch the skin of the defendant or another person’s intimate parts. (Pen. Code, § 234.4, subds. (d) & (f); People v. Elam (2001), supra, at p. 310; see also CALCRIM No. 953.)
- Unlawful Restraint: As discussed above, wobbler sexual battery under subdivision (a) [defendant touching the victim] and subdivision (d) [victim touching the defendant or another], both require that the victim be unlawfully restrained. Although the statute does not define “unlawful restraint,” the term has been the interpreted by case law.
In People v. Alford (1991), 235 Cal.App.3d 799, the court explained that the purpose of the sexual battery statute is to provide appropriate punishment for sexually abusive conduct that is physically traumatic and psychologically terrifying, even though it falls short of rape. Accordingly, the statute allows for prosecution when a touching occurs while the person is unlawfully restrained. (Ibid.) Thus, the term “unlawful restraint” can be viewed as distinguishing the “nonsexual physical element” of sexual battery from the more wanton “force, violence, or fear element of rape.” (Ibid; see also, People v. Arnold (1992) 6 Cal.App.4th 18, 26.) Unlawfully restrained means the “nonsexual physical element” that is something more “than the mere exertion of physical effort necessary to commit the prohibited sexual act.” (Ibid.) “This may be because the essence of the offense is seen as the touching.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1660, fn. 4.)
In People v. Arnold (1992) 6 Cal.App.4th 18, the defendant contended that “unlawful restraint” requires a “significant limitation” on the personal liberty of the victim. The court disagreed, holding that a person is unlawfully restrained when their liberty is being controlled by words, acts, or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will. (Id., at p. 26.) “[F]or example, the victim’s unwillingness may be implied if grabbed by a stranger who proceeds to improperly touch the victim … .Such a restraint is clearly unwelcome and unlawful.” (Id., at p. 28.)
In People v. Grant (1992) 8 Cal.App.4th 1105, 1111, the court explained that there is no requirement that unlawful restraint include physical restraint or that it include force or threat of force with personal violence. Conduct that forces the victim to remain where they do not voluntarily wish to be constitutes unlawful restraint within the meaning of the statute. (Ibid.) The court explained, “There are many situations where one is compelled, i.e., forced, to do something against one’s will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure.”
(Id., at 1112.)
In sum, “a person is unlawfully restrained when his or her liberty is being controlled by words, acts, or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will; The unlawful restraint required for [sexual battery] is something more than the exertion of physical effort required to commit the prohibited sexual act.” (People v. Pahl, supra, Cal.App.3d 1651; People v. Grant, supra, 8 Cal.App.4th 1105, 1111; People v. Arnold, supra, 6 Cal.App.4th 18, 28.)
Many unpublished state court decisions that have applied this rule, demonstrate its relatively low threshold. For example:
In People v. Knight (Aug. 29, 2018, No. A150989) ___Cal.App.5th___ [2018 Cal. App. Unpub. LEXIS 5912, at *20-21], a sexual battery conviction was upheld where the defendant grabbed the victim by the hip restricting her freedom of movement. The court explained that the defendant used more physical effort than required to commit the prohibited touching. (Ibid.)
In People v. Hughey (Jan. 12, 2018, No. A150114) ___Cal.App.5th___ [2018 Cal. App. Unpub. LEXIS 259, at *40], the court upheld a sexual battery charge where the defendant entered the victims hotel room uninvited and “shushed” the victim before touching her. The court found that there was unlawful restraint because the defendant’s words and acts were “something more . . . than the mere exertion of physical effort necessary to commit the prohibited sexual act.” (Ibid.)
In In re J.V. (Sep. 10, 2009, No. F056619) ___Cal.App.4th___ [2009 Cal. App. Unpub. LEXIS 7301, at *17], the court determined there was unlawful restraint where the defendant pushed the victim onto the couch and subjected her to unwanted sexual touching.
In People v. Krause (Apr. 19, 2007, C050840) ___Cal.App.4th___ [2007 Cal. App. Unpub. LEXIS 3140, at *9-10], a sexual battery conviction was upheld where the defendant was kneeling on the bed next to the victim and held the victim’s hand on his intimate parts. The court determined there was unlawful restraint because the victim was unable to free her hand from the defendant’s intimate parts. (Ibid.)
This bill would allow situations, where a defendant causes another person to touch the intimate parts of the defendant or another person, to be prosecuted as a misdemeanor, even where there is no unlawful restraint. This bill would make criminals of individuals who did not touch the intimate parts of another person, and did not take any action to control, restrain, or deprive the person of their liberty, and where the person has the freedom to refuse the touching or leave the situation. Should the Legislature allow individuals to be convicted of a sexual battery, when the defendant has not touched the victim’s intimate parts and the victim is not unlawfully restrained and at liberty to not touch the intimate parts of the defendant or another person?
- The Conduct is Already a Crime under Existing Law: According to the author, the purpose of this bill is to criminalize conduct “where a perpetrator causes the victim to touch an intimate body part of the perpetrator.” However, at least one appellate court has confirmed that a sexual battery occurs when any person, causes another, against that person’s will, to masturbate or touch the intimate parts of the defendant or another person. (People v. Reeves (2001) 91 Cal.App.4th 14, 50.) In Reeves, the court determined that the statute does not require the “cause” of the touching to be “by command, authority or force” but it means more broadly to “to be the cause of; to effect, bring about, produce, induce, [or] make.” (Ibid.) “This is satisfied when the defendant actions “induced” or “brought about” or “occasioned” the touching.” (Ibid.) Thus, the offense of sexual battery covers the situation where a defendant “causes” the victim to touch the intimate body part of the defendant or another person. This offense can be prosecuted either as a misdemeanor or as a felony under existing law. (Pen. Code, § 243.3, subd. (d).)
The sponsor of this bill, writing in support, describes an incident “where the perpetrator, an employer, took an employee’s hand against her will and placed it on his groin area over his clothes.” The sponsor contends that, “[b]ecause the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery.”
However, based on these facts, this conduct could be charged as either felony or misdemeanor sexual battery under Penal Code section 243.4 subdivision (d). As discussed above, sexual battery of this nature requires that: (1) the defendant unlawfully restrained the victim; (2) the defendant caused the victim to touch the intimate part of the defendant or someone else; and (3) the touching was done against the victim’s will. (Pen. Code, § 234.4, subd. (d); CALCRIM No. 953.) The example raised by the bill’s sponsor meets all of the requisite elements of the offense:
(1) The victim was unlawfully restrained [i.e., the defendant took the victim’s hand thereby controlling the victim’s liberty. The hand taking is a “nonsexual physical act” that is something more than the mere exertion of physical effort necessary to commit the prohibited sexual touching (See, e.g., People v. Arnold (1992) 6 Cal.App.4th 18, 28 [explaining that being “grabbed by a stranger” “is clearly unwelcome and unlawful”].)];
(2) The victim’s hand touched the employer’s groin [i.e., an intimate part of the defendant]; and,
(3) The touching was against the victim’s will.
Further, based on the example provided by the sponsor of the bill, in the case of a felony conviction, the fact that the defendant was an employer and the victim was an employee of the defendant would be a factor in aggravation in sentencing. (Pen. Code, § 243.4, subd. (i).) In addition to sexual battery, this offense could also be charged as battery, a misdemeanor, which is any “willful and unlawful use of force or violence upon the person of another.” (Pen. Code, §§ 242 & 243.)
Accordingly, this bill is unnecessary.
- Argument in Support: According to the Ventura County District Attorney, “What is missing from the definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator or other person, such as grabbing the victim's hand and placing it on the perpetrator's groin. This gap in the law is creating real world examples of sexual abuse where perpetrators remain unaccountable for what is objectively offensive and criminal behavior.
“This gap in the statute warrants correction to ensure that all individuals that seek to commit sexual battery are held accountable. A sexual battery is sexual battery, irrespective of whether the touching is done directly by the perpetrator or whether the perpetrator forcibly causes their victim to do the touching. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim. Perpetrators should therefore face equal accountability when they force a victim to touch another person.” - Related Legislation:
- AB 1039 (Rodriguez) would have increased the penalty for specified consensual sexual activity with a confined adult from a misdemeanor to an alternative felony-misdemeanor. The hearing on AB 1039 in this committee was canceled at the request of the author.
- AB 977 (Rodriguez) would have made battery committed against a physician, nurse, or other health care worker of a hospital a misdemeanor. The hearing on AB 977 in this committee was canceled at the request of the author,
- AB 1039 (Rodriguez) would have increased the penalty for specified consensual sexual activity with a confined adult from a misdemeanor to an alternative felony-misdemeanor. The hearing on AB 1039 in this committee was canceled at the request of the author.
- Prior Legislation: SB 1421 (Romero), Chapter 302, Statutes of 2002, made touching an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, if the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, a sexual battery.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Ventura County Office of the District Attorney
Opposition
None submitted.
Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 442 |
THIRD READING
Bill No: SB 442
Author: Limón (D), et al.
Amended: 5/18/23
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-0, 3/21/23
AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SUBJECT: Sexual battery
SOURCE: Erik Nasarenko, District Attorney of Ventura County
DIGEST:
This bill expands misdemeanor sexual battery to include a person who for the purpose of sexual gratification, or sexual abuse causing another, against their will, to masturbate or touch an intimate part of either those persons or a third person.
ANALYSIS:
Existing law:
- Provides that any person who touches an intimate person while that person is unlawfully restrained by the accused or an accomplice, and if touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse is guilty of sexual battery, punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(a))
- Provides that any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a two, three, or four years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(b))
- Provides that any person who touches and intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuses, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purposes is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(c))
- Provides that any person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled, or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(d))
- Provides that any person who touches an intimate part of another person, if the touching is against the will of the person touched for the specific purpose of sexual arousal, sexual gratification, or sexual abuse is guilty of misdemeanor sexual battery, punishable by a fine not exceeding $2,000, plus penalty assessments, and/or by a imprisonment in county jail for six months. If the perpetrator was the employer and the victim the employee the fine is up to $3,000 plus penalty assessments. (Penal Code § 243.4(e))
This bill includes in the definition of misdemeanor battery, any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of those persons or a third person.
Background
Existing law delineates different types of sexual battery. Depending on the behavior and circumstances: Touching an intimate part of a person while they are restrained, a wobbler; touching an intimate part of someone who is institutionalized, seriously disabled, or medically incapacitated, a wobbler; touching an intimate part of another person through fraud, a wobbler; causing someone who is unlawfully restrained, institutionalized, seriously disabled, or medically incapacitated to touch an intimate part of any person, a wobbler; touching an intimate part of another person against their will, a misdemeanor.
Misdemeanor sexual battery includes any person who touches an intimate part of another person, if the touching is against the will of the person touched, and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. This bill expands misdemeanor battery to include any person who for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of the those persons or a third person.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- Judicial Branch: Unknown, potentially significant cost pressures due to increased court workload to adjudicate prosecutions that are brought as a result of this measure (Special Fund – Trial Court Trust Fund, General Fund).
- DOJ: Likely minor and absorbable costs to the Department of Justice (DOJ) in order to add and maintain additional tier one offenders to the Megan’s Law website (General Fund).
- Local Costs: Likely minor and absorbable costs to local law enforcement agencies for increased reporting of sex offender data to the DOJ (local funds).
SUPPORT: (Verified 5/18/23)
Erik Nasarenko, District Attorney of Ventura County (source)
California District Attorneys Association
California State Sheriffs' Association
OPPOSITION: (Verified 5/18/23)
None received
ARGUMENTS IN SUPPORT: According to the California District Attorneys Association:
The current definition of misdemeanor sexual battery in Penal Code section 243.4 omits the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator or other person without applying restraint or force in excess of the act that causes the touching. Common examples include a perpetrator who thrusts their groin against a victim or places a victim’s hand on the perpetrator’s groin area. This gap in the law lets perpetrators remain unaccountable for what is objectively offensive and criminal behavior. Victims feel no less violated when they are forced to touch another person than when another person touches the victim, and thus sexual batterers need to be held accountable, irrespective of whether the perpetrator touches the victim’s intimate body part or forces the victim to touch the body of another.
Prepared by: Mary Kennedy / PUB. S. /
5/23/23 13:28:19
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SENATE COMMITTEE ON APPROPRIATIONS
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
SB 442 (Limón) - Sexual battery
Version: February 13, 2023 | Policy Vote: PUB. S. 5 - 0 |
Urgency: No | Mandate: Yes |
Hearing Date: May 18, 2023 | Consultant: Matthew Fleming |
Bill Summary:
SB 442 would expand misdemeanor sexual battery to include a person who, for the purpose of sexual gratification or sexual abuse, causes a person, against their will, to masturbate or touch an intimate part of either those persons or a third person.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 18, 2023
Fiscal Impact:
- Judicial Branch: Unknown, potentially significant cost pressures due to increased court workload to adjudicate prosecutions that are brought as a result of this measure (Special Fund – Trial Court Trust Fund, General Fund).
- DOJ: Likely minor and absorbable costs to the Department of Justice (DOJ) in order to add and maintain additional tier one offenders to the Megan’s Law website (General Fund).
- Local Costs: Likely minor and absorbable costs to local law enforcement agencies for increased reporting of sex offender data to the DOJ (local funds).
Author Amendments:
Add co-authors.
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SENATE COMMITTEE ON
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
SB 442 (Limón) - Sexual battery
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
SB 442 expands misdemeanor sexual battery to include a person who, for the purpose of sexual gratification or sexual abuse, causes a person, against their will, to masturbate or touch an intimate part of either those persons or a third person.
Fiscal Impact:
- Judicial Branch: Unknown, potentially significant cost pressures due to increased court workload to adjudicate prosecutions that are brought as a result of this measure (Special Fund – Trial Court Trust Fund, General Fund). See Staff Comments for additional details.
- DOJ: Likely minor and absorbable costs to the Department of Justice (DOJ) in order to add and maintain additional tier one offenders to the Megan’s Law website (General Fund).
- Local Costs: Likely minor and absorbable costs to local law enforcement agencies for increased reporting of sex offender data to the DOJ (local funds).
Background:
Existing law delineates different types of sexual battery. Depending on the behavior and circumstances of the offense, the touching an intimate part of a person may be punished as either a misdemeanor or a felony. Misdemeanor sexual battery includes any person who touches an intimate part of another person, if the touching is against the will of the person touched, and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Persons convicted of felony sexual battery are required to register as a sex offender for life (tier 3). Persons convicted of misdemeanor sexual battery must register as a sex offender for a minimum of ten years (tier 1).
This bill expands misdemeanor battery to include any person who for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of the those persons or a third person.
Proposed Law:
Includes in the definition of misdemeanor sexual battery, any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of those persons or a third person.
Related Legislation:
- AB 453 (Cristina Garcia) Ch. 613 Stats. of 2021, expanded the civil cause of action of sexual battery to include sexual contact, as specified, following the removal of a condom without verbal consent.
- AB 1997 (Cristina Garcia, 2018) would have made it a crime to remove or damage a sexually protective device during sex without consent, where the other person agreed to have sex on the condition that the sexually protective device was used. AB 1997 was never heard in the Assembly Public Safety Committee.
Staff Comments:
It is unknown how many additional prosecutions would be brought as a result of the implementation of this bill. Misdemeanor charges carry the potential for incarceration, therefore certain defendants’ rights are attached to the proceedings. These include the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. It generally costs about $1,000 to operate a courtroom for one hour. Consequently, if prosecutors filed charges under the expanded sexual battery statute proposed by this bill that otherwise would go uncharged, and combined, those additional cases take 50 or more hours of court involvement, the cost pressures of this measure to the courts would surpass the Suspense File threshold.
Although courts are not funded on the basis of workload, increased pressure court staff time and resources may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of fines and fees. However, the Legislature has reduced and eliminated fines and fees over the past decade. As a result, the 2023-24 proposed budget anticipates an ongoing annual allocation of $109.3 million from the GF to the Trial Court Trust Fund (TCTF) in order to address the decline in revenue.
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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: SB 442 Hearing Date: March 21, 2023
Author: | Limón | ||
Version: | February 13, 2023 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | MK | ||
Subject: Sexual battery
HISTORY
Source: Erik Nasarenko, District Attorney of Ventura County
Prior Legislation: AB 1692 (Shirley Horton) not heard Assm. Pub. Safety 2003
Support: California District Attorneys Association; California State Sheriffs’ Association
Opposition: None known
PURPOSE
The purpose of this bill is to expand misdemeanor sexual battery to include a person who for the purpose of sexual gratification, or sexual abuse causing another, against their will , to masturbate or touch an intimate part of either those persons or a third person.
Existing law provides that any person who touches an intimate person while that person is unlawfully restrained by the accused or an accomplice, and if touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse is guilty of sexual battery, punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(a))
Existing law provides that any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(b))
Existing law provides that any person who touches and intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuses, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purposes is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(c))
Existing law provides that any person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled, or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery punishable as a wobbler, with up to one year in county jail and a fine not exceeding $2,000, plus penalty assessments, or a 2, 3 or 4 years in state prison and a fine not exceeding $10,000, plus penalty assessments. (Penal Code § 243.4(d))
Existing law provides that any person who touches an intimate part of another person, if the touching is against the will of the person touched for the specific purpose of sexual arousal, sexual gratification, or sexual abuse is guilty of misdemeanor sexual battery, punishable by a fine not exceeding $2,000, plus penalty assessments, and/or by a imprisonment in county jail for six months. If the perpetrator was the employer and the victim the employee the fine is up to $3,000 plus penalty assessments. (Penal Code § 243.4(e))
This bill would include in the definition of misdemeanor battery, any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of those persons or a third person.
COMMENTS
- Need for this bill.
According to the author:
Current law defines a misdemeanor violation of sexual battery as the unwanted touching of the intimate body part of another. Missing from this definition of misdemeanor sexual battery is the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator. This gap in the law is creating real world examples of sexual abuse, where no charges of sexual battery can be brought.
In one recent incident, an employer took an employee's hand against her will and placed it on his groin area over his clothes. Because the physical contact was done by the victim's hand- not the perpetrators- the perpetrator could not be charged with misdemeanor sexual battery. Under current law, the perpetrator could only be charged with simple battery, the same charge that would apply to a simple push on the shoulder. This change ensures that all individuals that seek to commit sexual battery are held accountable. Victims feel no less violated when their hands are forced to touch another person than when another person touches the victim.
- Expansion of sexual battery
Existing law delineates different types of sexual battery. Depending on the behavior and circumstances: Touching an intimate part of a person while they are restrained, a wobbler; touching an intimate part of someone who is institutionalized, seriously disabled, or medically incapacitated, a wobbler; touching an intimate part of another person through fraud, a wobbler; causing someone who is unlawfully restrained, institutionalized, seriously disabled, or medically incapacitated to touch an intimate part of any person, a wobbler; touching an intimate part of another person against their will, a misdemeanor.
Misdemeanor sexual battery includes any person who touches an intimate part of another person, if the touching is against the will of the person touched, and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. This bill expands misdemeanor battery to include any person who for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another , against that person’s will, to masturbate or touch an intimate part of either of the those persons or a third person.
3. Argument in Support
According to the California District Attorneys Association:
The current definition of misdemeanor sexual battery in Penal Code section 243.4 omits the situation where a perpetrator causes the victim to touch an intimate body part of the perpetrator or other person without applying restraint or force in excess of the act that causes the touching. Common examples include a perpetrator who thrusts their groin against a victim or places a victim’s hand on the perpetrator’s groin area. This gap in the law lets perpetrators remain unaccountable for what is objectively offensive and criminal behavior. Victims feel no less violated when they are forced to touch another person than when another person touches the victim, and thus sexual batterers need to be held accountable, irrespective of whether the perpetrator touches the victim’s intimate body part or forces the victim to touch the body of another.
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