Sexual Battery

Woman in Santa Rosa Escapes Sexual Assault at Knifepoint (CA Penal Code 243.4)

In the evening hours, around 10:30 p.m., a woman was nearly attacked sexually at knifepoint.  As she was returning to her apartment on Burt Street and Parkcreek Drive, she was busy removing bags from her vehicle when a man approached her, grabbed her from behind, and held a knife to her throat.  She was only able to escape by frightening off her assailant with the panic button on her car keys.  Although she sustained minor injuries to her neck, the woman was mostly unscathed.

California law takes sexual battery and sexual assault quite seriously.  According to CA Penal Code 243.4, touching another person for the express purpose of sexually gratifying oneself, when the other person is not willing, is a serious violation of the law.  This particular crime is a ‘wobbler’ in California, meaning that it may be treated as either a misdemeanor or as a felony, depending upon what prosecutors decide.

While misdemeanor sexual battery is a serious enough violation of the law, felony sexual battery may end, of course, in much harsher penalties.  If the victim was unlawfully restrained, as in the case above, then there are serious penalties indeed.  Although a conviction on charges of misdemeanor sexual battery will likely end in a period of 1 year in county jail (and a maximum fine of $2,000), a felony conviction could result in up to 4 years in state prison and a $10,000 fine.  Both misdemeanor and felony sexual battery convictions also subject an individual to lifetime registration as a sex offender (CA PC 290).


Registered Sex Offender Arrested for Posing as Massage Therapist in San Mateo (CA Penal Code 288(a))

Recently, in a San Mateo hair and nail salon, a man posing as a massage therapist allegedly convinced an unsuspecting customer to allow him to give her a massage.  The 43-year-old woman claims that she was sexually assaulted in a private room, all the while she was under the impression that she was dealing with a professional.  As it turns out, the man giving her a massage was a 53-year-old San Jose registered sex offender.  The owner of the salon where the man worked as a nail technician and hair stylist identified him to police officers and he was arrested on charges of sexual battery and attempted oral copulation.

According to the testimony of the alleged victim, part of what the man attempted to do was to force her to remove her underclothes.  Although the crime of sexual battery is well known, California Penal Code 288(a) (“Oral Copulation by Force or Fear”) is a lesser-known violation of the law.  According to this section of the legal code, any person who touches another individual’s sexual organs with their mouth without the permission of that person, and uses force or fear to accomplish this goal, is guilty of oral copulation by force or fear.  This includes persons who are extremely intoxicated or are otherwise unable to consent and those who outright refuse.

A violation of CA PC 288(a) is always considered a felony in the state of California.  Penalties include up to 8 years in state prison and a $10,000 fine.  Additionally, any individual convicted of such crime will be required to register as a sex offender for life.  However, the man in question will not be subject to these exact consequences as he committed ‘attempted’ oral copulation.  He was interrupted by the manager of the salon.

Man Arrested for Alleged Sexual Assault at Target (CA Penal Code 243.4)

The local Target store in Tahoe Park was the scene for strange events recently.  Law enforcement officials allege that a 20-year-old man (name withheld to protect the accused’s privacy) who was originally held by store security for shoplifting had also allegedly sexually assaulted several women while in the building.  He was eventually arrested, not only on the shoplifting and sexual assault charges, but also for false imprisonment.

In California, sexual assault (CA Penal Code 243.4) makes a wide range of activities illegal.  This broad net covers any touching of the private parts of another person illegal, if it is for the express purpose of gaining sexual gratification.  While the specifics of this recent case at Target remain unclear as of yet, more than one woman has come forward to accuse the young man of having behaved in an inappropriate manner.

This particular crime is a California ‘wobbler,’ meaning that it is up to prosecutors to determine whether they will treat it as a misdemeanor or as a felony. A misdemeanor sexual assault charge will likely result in up to 1 year in county jail and a $2,000 fine.  On the other hand, a felony conviction on sexual assault charges could end in up to 4 years in state prison and a $10,000 fine.  The difference between a misdemeanor and felony charge depends on the particular circumstances of the case.  However, felony charges are usually reserved for those instances in which there has been force involved, even if that ‘force’ amounts to the exploitation of someone who is living in an inherently coercive environment (like a prison, nursing home, or mental health facility).


Placerville Man Arrested on Charges of Sexual Assault (CA Penal Code 243.4)

Recently, a 67-year-old man (name withheld to protect the accused’s privacy) was arrested by police in Placerville on charges of sexual assault.  Local law enforcement agents claim that the man sodomized another individual on Thanksgiving Day.  The alleged victim (someone the man was ‘in a relationship’ with for about 8 months) was asleep at the time of the purported incident.

In the state of California, sexual assault (CA Penal Code 243.4) is defined as any unwanted ‘touching’ of another person’s genitalia (or other private portions of their body) for the express purpose of being gratified sexually.  This crime may be considered either a felony or a misdemeanor, depending on the circumstance, making it what is often referred to as a ‘wobbler.’  It is thus up to prosecutors to determine whether they will treat it as a less serious or more serious offense.  Misdemeanor sexual assault covers occurrences like unwanted pats on the bum, while felony sexual assault is far more severe.

If convicted of a misdemeanor sexual assault charge, you could face up to 1 year in county jail and a $2,000 fine.  However, if you are convicted of a sexual assault felony charge, you could pend up to 4 years in state prison and pay a $10,000 fine.  In either case, you will have to register for your lifetime as a sexual offender.


Fairfield Joggers Warned About Sexual Battery Attacks (CA Penal Code 243.4)

The latest of 4 documented incidents in Fairfield involving female joggers happened this last Wednesday.  An unnamed 17-year-old victim was running close to Westamerica Drive and Sandstone Way in around 8:30 p.m. when the suspect approached her, pretending to ask for directions.  Things quickly progressed as the man assaulted the young woman, who was eventually able to escape, scratching her assailant on his hands and face.  The unidentified suspect is said to be a thin, 5’7” tall Caucasian man with blonde hair in his late 20s.  Local law enforcement agents are still working to bring this man in for questioning; a composite sketch has been released to the public.  Meanwhile, women joggers are warned to be extremely cautious when jogging in the Fairfield area.

If this person is found, they will be subject to California sexual battery and assault laws (CA Penal Code 243.4).  While this particular crime is a ‘wobbler,’ meaning that it may be prosecuted either as a misdemeanor or as a felony, depending on the circumstances, the Fairfield attacker would be subject to felony sexual battery if convicted.  Sexual battery or assault becomes a California felony in several different sets of circumstances.  First, they could have been falsely persuaded that they were touched ‘professionally,’ like in a session with a massage therapist or while the victim was living in an inherently coercive environment, such as a mental institution or nursing home.

However, felony violations of this law can also occur when the victim has been restrained unlawfully, as in being held down or otherwise kept from escaping while the perpetrator touches intimate parts of their body.  Whereas a misdemeanor conviction for sexual battery may result in up to 1 year in county jail and a $2,000 fine, felony convictions on this same basis may result in up to 4 years in state prison and a $10,000 fine.


Massage Therapist Arrested for Sexual Battery in East Palo Alto (CA Penal Code 243.4)

66-year-old massage therapist (name withheld for privacy), by all accounts, an asset to his community.  More like a shaman or healer than a massage therapist, he helped folks, not only with their muscular complaints, but also with other, minor, health issues such as infertility.  For 30 years, this man, self-identified as a “sobandero,” has worked to help his neighbors, but now he has been arrested on charges of sexual battery and for operating as an unlicensed massage therapist.

Not every state in the union requires massage therapists to be licensed, like Colorado.  There, anyone can hang up a shingle and begin practicing without ever having even attended an accredited massage therapy school or taken a board examination.  Other states, like California, require 250-500 or more hours of education from a California-approved school, passing grades on the MBLEx or NCETMB/NCETM (formal examinations), and (in some circumstances) additional county licensure. The California Massage Therapy Council even offers consumers a way to verify whether or not they are seeing a licensed practitioner (California Business and Professions Code 4600).

For people like him, however, practicing without a license can mean serious legal troubles.  Law enforcement officials have not released the details of his case, but it is more likely than not that a client is involved in these allegations of sexual battery (CA Penal Code 243.4), which includes behavior like touching another person’s intimate areas in order to become sexually aroused or to abuse them in some other way.  Though it is also likely that he successfully ran his business (though illegally) for 30 years, has been wrongly accused or that there is some misunderstanding afoot, he could face time in jail.  A misdemeanor sexual battery charge in California could mean up to 1 year in county jail and a $2,000 fine.  Felony sexual battery convictions carry with them up to 4 years in state prison and a $10,000 fine.  In any case, it is wise to follow the law when it comes to being licensed to practice massage therapy, not only for the protection of your clients and of your reputation, but also for your protection from potentially groundless accusations.


1974 Oakland Cold Case Solved – J. McElhiney Sexual Assault Murder (CA Penal Code 269)

Julie McElhiney was only 13-years-old when she was murdered by now 66-year-old Curtis Tucker, who has recently pled no contest to the 1974 crime.  How did Oakland law enforcement officials finally figure out who ended her life?  They used DNA evidence that was 40 years old.

Oakland police Sergeant Michael Weisenburg is a cold-case worker in the department and was reviewing Julie’s case about 4 years ago.  What he discovered is that there was still viable DNA evidence on some of the clothes she was wearing at the time she was murdered and sexually assaulted (CA Penal Code 269).  After 4 years, the nationwide DNA database item he entered came up with a match, that of Curtis Tucker.  He was promptly arrested.

California voters will remember that it was Proposition 69 (“DNA Fingerprint, Unsolved Crime, and Innocence Protection Act”), passed in November 2004 that allowed Tucker to be brought to justice and for Julie’s family to finally find peace.  What Prop 69 effectually created was a DNA database for known criminals.  Since 2004, it is normal procedure to take not only fingerprints and palm prints, but also DNA samples from anyone who is arrested, thus making it easier on law enforcement to identify repeat offenders and to solve cold cases in which DNA technology was not yet available.  Some argue that this is a breach of individual freedom; others point to rare cases such as Julie McElhiney’s and are satisfied.


California Prisons Sterilized Inmates Without Consent (CA Penal Code 243.4)

It was only this past May that legislation was passed in the state of California to prevent prisons from sterilizing their female inmates.  Before, it was considered an acceptable form of birth control.  Now, it seems that inmates incarcerated between 2005 and 2013 have been permanently sterilized without the consent of their doctors and without their consent.  This new information was uncovered during an audit of the prison system.  It would not be surprising if some of the former inmates sought to sue the California prison system for pain and suffering and/or to bring criminal charges against those who performed the illegal operations, like that of sexual battery, which only requires that another persons private parts are touched for the purposes of abuse (CA Penal Code 243.4).

There are many things to take into account before performing a sterilization procedure on a female inmate.  First, and foremost, the inmate must consent.  That these women were in prison, and had temporarily lost many of their rights, does not mean that law enforcement officials working in the prison system have the right to treat them as if they are less than human.  Second, there is a required waiting period before the decision to sterilize can be consented to by the patient.  In many cases, this was not followed.  Third, any person (inmate or not) who consents to being sterilized must be of sound mind and body and must be given the relevant information in such a way that it is understandable.  The decision to be sterilized is a life-altering one and should not be taken lightly.

Most importantly, this signals a serious problem with ethics within the California prison system.  Prisons are one example of what is known as an ‘inherently coercive’ environment, meaning that because inmates have none of the power while they are incarcerated, they cannot ever truly give informed consent, their decisions will always be affected by their place in the power structure of the prison itself, at the bottom.


San Jose Arsonist May Face Stiffer Penalties due to Sexual Battery History (CA Penal Code 243.4, 451 and 452)

48-year-old (name withheld to protect the anonymity of the accused) has been a registered sex offender since around 2001 when he was convicted of sexual assault and sexual battery charges (CA Penal Code 243.4).  However, Sgt. Jason Kidwell with the San Jose police department was determined to prove that the San Jose man, who had a history of arson as well, was the culprit in over 12 different blazes set since the beginning of this month.  What investigative techniques did Sgt. Kidwell use?  He simply looked up formerly charged arsonists in the state arson registry and discovered that the man lived in the immediate area.  Local law enforcement officials haven’t been clear as to what evidence they have against him, although they did watch his home for 3-4 days with no results and then raided his home.

Although residents of the area are thankful that a suspect has been arrested in the case, it remains to be seen whether there is enough evidence to convict him on the 2 arson charges against him.  In the state of California, arson is covered under (CA Penal Code 451 & 452).  In general, charges of arson, and/or reckless burning, are a wobbler.  This means that prosecutors may decide to treat it as either a misdemeanor or a felony charge.  Criteria for this decision usually included a person’s individual criminal history, this will mean a re-hashing of each of the arson and sexual assault charges that have every been levied against him.  On the other hand, any type of ‘malicious’ arson is always considered a felony.  Penalties if convicted of a felony arson include anywhere from 16 months to 9 years in state prison, a maximum $10,00 fine, and a ‘strike’ on your record according to California’s Three Strikes Law.