July 22, 2014 By Stephen Klarich

Differences between Sexual Battery and Sexual Battery by Fraud (Penal Code sections 243.4, 243.4 (c))

Sexual battery by fraud is the crime of unlawfully touching another person on an intimate body part by representing to the victim that the touching served a professional purpose.

A recent California Court of Appeals decision helps illustrate this crime, which is considered a more serious offense than sexual battery…

People v. Robinson (Case No. G048155, 4th Appellate District, 2014)

A Garden Grove masseuse was charged with two felony counts of sexual battery by fraud.
A Garden Grove masseuse was charged with two felony counts of sexual battery by fraud.

Defendant Lee Hoang Robinson lured women, including a 17-year-old girl, to a Garden Grove beauty salon where he worked on the promise of free facial treatments. According to court records, he then coaxed them into partially disrobing, stating that he would give them a “European massage.” Not knowing what this meant, his victims agreed.

The defendant allegedly proceeded to sexually assault each female by massaging their breasts and buttocks, and in one case, sexually penetrating the victim.

Robinson was charged with two felony counts of sexual battery by fraud (PC 234.4(c)). He was also charged with one count of sexual penetration with a foreign object under Penal Code section 289. A jury convicted the defendant on all counts and he was sentenced to serve 12 years in prison.

On appeal, the defendant argued there was insufficient evidence to support his convictions for sexual battery by fraud. He claimed there was no way his victims could have reasonably believed his sexual misconduct was related to the professional services he promised.

On two counts, the Attorney General and the Appellate court agreed. Accordingly, he was entitled to have his convictions on those counts reduced to the lesser offense of misdemeanor sexual battery (PC 234.4(e)(1)) and be resentenced.

How is Sexual Battery Different from Sexual Battery by Fraud?

Sexual battery is defined under California Penal Code section 243.4. Generally, sexual battery is the unwanted touching of an intimate part of another person’s body for the specific purpose of sexual gratification, arousal or abuse. There are various ways you can be prosecuted for this crime, including:

  1. You or an accomplice unlawfully restrained the victim;
  2. You committed the act upon a victim who is institutionalized for medical treatment and who is seriously disabled or incapacitated;

    It is crucial to know what constitutes as “sexual battery by fraud.”
  3. You committed the act while the victim was unaware of the nature of the act because you fraudulently represented that the touching served a professional purpose;
  4. You caused the victim to masturbate or intimately touch someone else; and
  5. You accomplished this against the victim’s will.

What distinguishes the crime of sexual battery by fraud and therefore makes it a more serious crime than simple” sexual battery is the fact that you convince the victim to consent to “act X” but then you engage in “act Y.”

As illustrated in the case mentioned earlier, after luring his victims on the promise of a legitimate service – a free facial – the defendant tricked the women into believing he was going to give them some sort of “exotic massage.” When they agreed to this “service,” he took advantage of the situation to unlawfully touch them for his own sexual gratification.

Sexual battery by fraud is a crime of “fraud in the inducement.” It involves obtaining a victim’s consent to a sexual act by deceit, which necessarily means he or she is unaware of the fact that sexual gratification, arousal or abuse occurs. Essentially, the victim suffers twice: once by being tricked, and again by being sexually molested.

Sexual battery is an unlawful intimate touching accomplished against the victim’s will (in other words, the touching was unwanted). For example, kissing someone on the lips or slapping someone’s butt without their prior consent is enough to trigger a charge of sexual battery.

Is There a Difference in Punishment Between Sexual Battery and Sexual Battery by Fraud?

Sexual battery under California Penal Code sections 243.4 (a) through (d) is considered a “wobbler” offense. This means you could be charged with either a misdemeanor or a felony, depending on:

  • If unlawful restraint, an incapacitated victim, fraud or coercion was involved; and
  • Your prior criminal historysexual battery by fraud charge

A misdemeanor sexual battery conviction is punishable by up to one year in jail and a fine of up to $2,000. If you are convicted of felony sexual battery, you face two, three or four years in prison and a maximum $10,000 fine.

Sexual battery (PC 243.4(e)(1)) will be charged as a misdemeanor and is punishable by up to six months in jail and a maximum $2,000 fine ($3,000 if the victim was your employee).

Perhaps most devastating, a judge must order you to register as a sex offender for a California sexual battery conviction. Even if you are granted probation and are eligible to have your PC 234.4 conviction dismissed, you still have to register as a sex offender for the rest of your life as long as you live, work or attend school in California.

Contact Wallin & Klarich Today if You Are Facing Sexual Battery by Fraud Charges

If you or someone you care about has been charged with sexual battery by fraud, you should speak with our experienced sex crimes defense attorneys at Wallin & Klarich today. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending our clients charged with serious sexual offenses.

We can help you avoid the serious consequences of a sexual battery conviction, such as a jail or prison sentence, fines, and worst of all, lifetime registration as a sex offender.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our skilled criminal defense attorneys at Wallin & Klarich are available throughout Southern California to aggressively defend you against the life-altering consequences of a sex offense conviction. We will help you get the best possible outcome in your case.

Call us today at (877) 4-NO-JAIL (877-466-5245) for a free telephone consultation. We will get through this together.

Information and photos retrieved from:

“Allianz Arena Massageraum Bayern”. Licensed under Creative Commons Attribution-Share Alike 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Allianz_Arena_Massageraum_Bayern.jpg#mediaviewer/File:Allianz_Arena_Massageraum_Bayern.jpg
Uslegal.com: “Sexual Battery Law & Definition”; http://definitions.uslegal.com/s/sexual-battery/

Findlaw.com: “Assault and Battery Defenses”; http://criminal.findlaw.com/criminal-charges/assault-and-battery-defenses.html

California Penal Code Section 243.4

California Penal Code Section 290, et al

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