While often used interchangeably, rape and sexual assault are two distinct crimes under California law. While Rape refers to the use of force or other coercive means to engage in sexual intercourse that includes penetration, sexual assault refers to any non-penetrative touching of a persons’ intimates that is non-consensual, even if no force was used.

Both crimes are heavily punished under California law, but the difference is as a felony vs. a misdemeanor.

San Diego Attorney for Sexual Assault Charges

If you or someone you know has been accused of sexual assault or any other sexually motivated crime, it’s time to act now. Simple allegations could potentially ruin your reputation and harm your employment and future career opportunities. A conviction could completely decimate those dreams. For these reasons and more, we highly encourage you to seek legal representation with The Law Office of Michael E. Cindrich.

Attorney Michael Cindrich has decades of experience protecting people’s rights, including in cases involving serious sex-related crimes. The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and San Diego proper.

Contact Michael Cindrich today for a free consultation at (619) 262-2500.

Overview of Sexual Assault in California

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Sexual Assault under California Law

Sexual assault is defined under Penal Code 243.4 as: 

(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.

For the purposes of sexual assault charges, this unlawful touching also refers to:

  1. The touching of a person who is unconscious and cannot consent
  2. The touching of a person who is institutionalized for medical treatment and is seriously disabled or otherwise medically incapacitated, included being under a medically induced or natural coma
  3. The touching of a person under false pretenses, e.g. misrepresentation as a medical professional or for a medical reason
  4. The touching of a person who has notably withdrawn his or her consent at the time of the touching

The state considers the touching of a minor and of workplace harassment, e.g. an employer and employee, as aggravating factors.

Intimate Parts

California defines “intimate parts,” as referenced by Penal Code 243.4, as those parts of the body typically associated with sexual pleasure, including:

  1. The person’s sexual organ
  2. The person’s anus
  3. The person’s groin
  4. The person’s buttocks
  5. The breast of a female

However, in certain cases the court may extend this “unlawful touching” to include any part of the body if the purpose is for the sexual self-pleasure of the offender.

Consent

Under California Penal Code § 261.6, the legal definition of consent is as follows:

(a) In prosecutions under Section 261, 286, 287, or 289, or former Section 262 or 288a, in which consent is at issue, “consent” means positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.

California law makes it explicitly clear that consent may be withdrawn at any time by expressing such. If the other party is not in a state whereby they can consent, then the first party is likely guilty of sexual assault or rape. There are some cases, such as those involving minors and those with severe mental disabilities, where the engaged party cannot legally consent to any sexual act.

Marriage

California recently repealed a statute that exempted any sexual encounter between married couples from classification as rape or sexual assault. As such, nonconsensual encounters between partners who are married may indeed be classified as rape or sexual assault. This change provides additional agency to those who may be assaulted, but also makes it harder for those falsely accused of sexual assault.

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Penalties under California Law

Unlike Rape, which is always a felony offense, Sexual Assault is penalized as a misdemeanor offense. It is punishable as:

  1. No more than 1 year in county jail
  2. A fine of $2,000 to $10,000

However, if the offense was committed against a minor and the offender as a prior felony conviction for unlawful touching, then it is considered a felony, punishable as:

  1. Imprisonment in state prison for 2, 3, or 4 years, and
  2. A fine of up to $10,000.

Penalization under 243.4 also does not preclude punishment or prosecution under any other law in California, including both criminal and civil proceedings.

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Additional Crimes under State Law

Other crimes that may lead to a sexual assault charge, or be charged in conjunction with a sexual assault charge, include:

  • Sexual Battery: Covered under Penal Code 243.4(b), sexual battery refers to the nonconsensual touching of another person’s intimate parts for the purpose of sexual arousal, gratification, or abuse.
  • Forcible Acts of Sexual Penetration: Covered under Penal Code 289, this crime refers to the act of penetrating another person’s body with a foreign object without their consent, achieved through force, coercion, or when the victim is incapacitated.

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Legal Defenses

There are many reasons why an innocent person may be falsely accused of sexual assault. The defenses for such a case include, but are not limited to:

  • Proving Consent: Many false reports of sexual assault allege that the offender me the primary criterion for sexual assault – they did not have consent. The defense will likely present evidence that shows that the accuser willingly participated in the sexual activity without coercion, force, or incapacitation. However, this can be difficult as the only parties in most sexual assault cases are the accused and the accuser.
  • Proven Mistaken Identity: In cases that occur during parties or in public such as at a club, the accuser may misidentify the offender responsible for inappropriate touching. In these cases, the defense may argue that the accused was not the perpetrator, asserting that the accuser must be mistaken. This strategy relies on either proving that the accused was not present at the time of the assault, or showing that they could not have conducted the assault, e.g., they were not near the accuser at the time of the assault.
  • False Accusation: It is not uncommon for an alleged victim to falsely accuse someone of rape or sexual assault, especially during messy divorces or in relationships with serious marital issues. In these cases, the defending attorney must provide evidence that directly refutes this claim.

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Additional Resources

California Penal Code 261, Rape – The California penal code for rape provides an overview of the exact statutory definition of penetrative sexual assault, also known as rape. California provides a comprehensive definition of the act, including aggravating factors and edge cases that would still qualify a person for prosecution under California PC 261.

San Diego Sexual Assault Registry – The city of San Deigo provides a set of resources for those who have been sexually assaulted. The linked webpage includes links to women’s shelters, information on what qualifies as sexual assault and how to access a rape kit and what to do after you’ve submitted one.

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Hire an Attorney for Sexual Assault Charges in San Diego County, CA

If you or someone you know have been falsely accused of sexual assault, it is important to seek counsel immediately. Accusations of sexual assault can do serious damage to your life, going so far as to cost you your friends and your job before you’ve even had a chance to defend yourself. If you have been accused of sexual assault, contact the experienced attorneys at the Law Offices of Michael E. Cindrich. Michael Cindrich has represented clients in the San Diego area for decades, and understands what it takes to obtain a favorable outcome.

The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and San Diego proper.

Contact Michael Cindrich today for a free consultation at (619) 262-2500.