Sexual Assault v. Sexual Battery: What’s the Difference?
The difference between sexual assault and sexual battery is that sexual assault is an “attempt” crime, whereas sexual battery is a “completed” crime. In California, the crime of sexual assault is an attempt to commit a specific sex offense.
For example, David attempts to commit sodomy of Sarah while Sarah is extremely intoxicated, but David’s effort to commit sodomy on Sarah is thwarted when Sarah’s friend catches David in the act and calls the police. In this example, David attempted to commit the crime of sodomy, with the specific intent to commit sodomy, but the completely crime of sodomy was not committed; therefore, David may be charged with sexual assault to commit sodomy (PC 220(a)(1)/286).
No Touching Required for Sexual Assault: Unlike sexual battery, sexual assault does not require that the victim be physically touched with sexual intent. The defendant’s attempt to commit a sex offense is all that is needed for sexual assault, regardless of whether the defendant touches the victim with sexual intent.
For example, David grabs Sarah in his attempt to rape Sarah. When David grabs Sarah, he does not grab her in a sexual manner, but he does grab her with the intent to rape her at a later time. Sarah escapes David before he completes the crime of rape. In this example, David assaulted Sarah with the intent to rape her, and even though David did not grab Sarah in a sexual manner, he may be charged with sexual assault because he intended to rape Sarah when he grabbed her.
Sexual Battery: Sexual battery, unlike sexual assault, requires that the victim be physically touched in a sexual manner (simultaneous touching and intent required).
For example, David grabs Sarah’s butt with the intent to sexually arouse either himself or Sarah. In this example, David may be charged with sexual battery because he touched Sarah’s butt at the same time that he intended to sexually arouse Sarah or himself.
Note: Neither sexual assault, nor sexual battery, require an intimate part of the victim be touched (i.e., female breasts, buttocks, genitals). For example, David rubs his leg up against Sarah’s leg at dinner to sexually arouse either Sarah or himself. In this example, David may be charged with sexual battery even though he did not use his hands and even though he did not touch an intimate part of Sarah.
Sexual Battery & Sexual Assault Charged Together
Sexual assault and sexual battery can be committed at the same time; these crimes may also be charged together in the same criminal complaint, but it is not automatic that a sexual assault results in a sexual battery.
For example, David grabs Sarah’s neck in an attempted rape. When David grabs Sarah’s neck he is not attempting to sexually arouse her or himself, but he is trying to subdue her in his effort to rape her. In this example, even though David touched Sarah’s neck, he was not sexually aroused, or trying to sexually arouse Sarah when he did so. Therefore, David may be charged with sexual assault, but not sexual battery.
Similar Defenses May Apply: Similar defenses may apply to both sexual assault and sexual battery crimes, including consent (does not apply in cases where victim is a minor), insufficient evidence to prove the crime, coerced confession, illegal search and seizure, statute of limitations, alibi defense, and more.
Punishment Differences: The crime of sexual assault is generally punished more severely than the crime of sexual battery. This is because the crime of sexual assault involves the attempt to commit a serious and violent sex offense (i.e., oral copulation, rape by force or fear, sodomy, sexual penetration, lewd act on a child under 14, etc.), whereas the crime of sexual battery does not usually involve either injury to the victim, or the level of attempted personal violation associated with sexual assault crimes.
Note: Sexual assault crimes carry greater direct and indirect penalties than sexual battery crimes, including greater immigration consequences, longer incarceration, greater professional licensing consequences, more fines, bigger restitution amounts, and more.
Sexual Offense & Completed Crime: When sexual assault or sexual battery leads to the completed crime, then the completed crime is charged, not the sexual assault or sexual battery charge.
For example, David assaults Sarah with the intent to rape Sarah (i.e., sexual assault with intent to commit rape [PC 220(a)(1)/261). Thereafter, David rapes Sarah. David may be charged with both sexual assault and the completed crime of rape, but David cannot be sentenced for both the attempt crime (sexual assault to commit rape) and the completed crime (rape); therefore, the district attorney will only charge the completed crime of rape in this example.
Sex Offender Registration: Both sexual assault crime and sexual battery crimes require sex offender registration in California (PC 290(c)). However, the length of registration as a sex offender is usually much longer for sexual assault crimes than it is for sexual battery crimes (See CA Tier System for Sex Offender Registration).
Alternative Charge for Sexual Assault: As stated, a sexual assault is an 'attempt to commit a crime, coupled with the specific intent to commit that crime.' In turn, in criminal law, an “attempt” to commit a crime is a ‘substantial step towards the commission of a crime, coupled with the specific intent to commit that crime.’
In essence, a sexual assault crime is virtually the same as attempt to commit a sex crime, but with the added element of ‘substantial step towards commission of the crime for an attempt offense.
Therefore, the district attorney in sexual assault crimes will sometimes charge the crime under California penal code 664, which covers the law of attempt, so long as the district attorney believes a ‘substantial step’ towards the commission of the crime was completed.
For example, in California, the crime of attempted rape, where the defendant makes a ‘substantial step towards the commission of the crime of rape,’ many be charged as either PC 220(a)(1)/261 (sexual assault to commit rape), or PC 664/261(a) (attempted rape).
Sexual Assault Crimes in California (Abbrev.)
PC 220(a)(1)/261 Assault to Commit Rape
PC 220(a)(1)/264.1 Assault to Commit Gang Rape
PC 220(a)(1)/286 Assault to Commit Sodomy
PC 220(a)(1)/287 Assault to Commit Oral Copulation
PC 220(a)(1)/288 Assault to Commit Lewd Act on Child
PC 220(a)(1)/289 Assault to Sexually Penetrate with Object
Sexual Battery Crimes in California
PC 243.4 Sexual Battery by Restraint (Misdemeanor or Felony)
PC 243.4(e)(1) Sexual Battery (Misdemeanor)
PC 243.4(b) Sexual Battery of Inmate
PC 243.4(c) Sexual Battery of Unconscious Person
PC 243.4(d) Sexual Battery by Forced Masturbation
For more information on the crimes of sexual assault (PC 220(a)) and sexual battery (PC 243.4), including the differences and similarities between sexual assault and sexual battery, contact our sex crimes criminal defense attorneys today for a free consultation. Our team of dedicated defense attorneys have successfully handled hundreds of sex crimes in the Inland Empire, including the cites and court of San Bernardino, Riverside, Fontana, Rancho Cucamonga, Rialto, Yucaipa, Redlands, Upland, Ontario, Chino, Victorville, Highland, and more. Call today!
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