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What Is the Difference Between Sexual Assault and Sexual Abuse?

by John Gomez | Last Updated: February 2, 2020

Sexual assault and sexual abuse are both sex crimes in which perpetrators can be prosecuted in California criminal court and found liable in civil court. Often these words are thrown around in ways that conflate the two or confuse one for the other.

Each has very specific meanings, especially in how they are expressed in California’s laws. Each crime not only differs by actions toward a survivor, but also who the survivors are and the timing of the act.

California law calls sexual assault sexual battery. This is a broad category of sex crimes of which sexual abuse is only one.

If you or your child were sexually assaulted or abused, California law permits you take action against your or your child’s perpetrator in addition to the criminal consequences he or she might face. Criminal charges serve as one part of holding a sex crime perpetrator accountable for their actions, but you can also seek compensation for your damages from your abuser through a civil lawsuit with a sexual abuse attorney.

Below we provide more information about the specific aspects of sexual assault and sexual abuse, specifically an overview of California’s laws and accompanying legal definitions of sexual battery, concluding with a discussion of how these definitions interact.

If you or a loved one are in immediate danger, call 911. If you need to report the sexual abuse of a child, you can find the emergency response number for your county here, whether you are in the Greater San Diego area or anyplace else in California.

Sexual Battery Laws in California

California’s Penal Code 243.4 PC addresses the definitions, charges, and criminal penalties for sexual battery in California. If you take legal action against a perpetrator directly, your lawsuit will occur in civil court. Remedies for civil cases are monetary damages associated with the physical and emotional injuries you have experienced as a result of sexual battery. Yet, the definitions the law provides for the crimes are those agreed upon for both criminal and civil procedures. The severity of the crime a perpetrator commits under the law often correlates with the amount of damages a survivor might seek in a civil case, yet criminal and civil cases against the same perpetrator are two separate events.

Although we focus on the civil aspects of sexual battery, the following criminal definitions will help distinguish the difference between assault and abuse under California law. Sexual battery can include one of three main components, which include the perpetrator touching an intimate part of another for:

  • Sexual arousal
  • Sexual gratification
  • Sexual abuse

More specific aspects of sexual battery under California law include the following:

Inappropriate Touching

The law defines inappropriate touching or touches as physical contact with another person which might be direct or it might occur through the clothing of the perpetrator and over the clothing of the victim. Whether or not clothing is present on the victim informs whether the perpetrator will be criminally charged with a misdemeanor or felony. When a perpetrator has contact with the victim’s bare skin, felony sexual battery will likely have occurred.

Intimate Areas

You likely know what constitutes intimate body parts, but California’s legal definition of sexual battery includes the following specific body areas as intimate:

  • Male and female sexual organs
  • Anus and buttocks
  • Groin
  • Female breasts

Consent

Touching another person against his or her will is a violation of California’s sexual battery law. This means he or she did not consent to the actions of the perpetrator. Giving consent requires that a person acts voluntarily and freely and understands the nature of the act to which he or she is providing consent. Under federal and California law, minors under age 18 are not capable of giving consent even if someone argues that they could agree and understand the actions.

Other scenarios also cancel out the idea of consent to sexual acts. Disabled adults who do not have their full mental or physical capacity cannot give consent to sexual acts. This also includes those who are medically incapacitated because of prescribed medication or anesthesia, and those who are voluntarily or involuntarily institutionalized in a hospital, nursing home, or other type of medical facility.

Additionally, a perpetrator who gets consent after misleading someone or misrepresenting that touching was necessary for professional reasons has also committed sexual battery. Fraudulent behavior undermines a person truly giving consent because he or she doesn’t truly know the nature of the sexual acts.

Unlawful Restraint

Sexual battery also includes unlawfully restraining another person against their will. Unlawful restraint includes controlling a person’s freedom of movement through words, acts, or a power differential where the perpetrator holds a position of authority over the victim. Yet, unlawful restraint is more than physical force alone. For example, a teacher could unlawfully restrain a student by locking the door of a classroom.

Sexual Abuse as Sexual Battery in California

California’s penal code does not specifically define sexual abuse. Yet, over the years, court cases and accompanying jury instructions have addressed the definition. Ultimately sexual abuse might or might not include penetration. Based on People v. White (1986) 179 Cal. App. 3d 194 and California’s Criminal Jury Instructions, whether or not penetration occurs, sexual abuse takes place when a person touches the intimate parts of another to cause pain, injury, or discomfort. This also includes emotional pain, injury, and discomfort. The perpetrator does not have to achieve sexual arousal or gratification when sexual abuse occurs.

The American Psychological Association (APA) offers a slightly broader definition of sexual abuse as “unwanted sexual activity, with perpetrators using force, making threats, or taking advantage of victims not able to give consent.” In a civil trial, attorneys often call upon medical experts to testify about the impacts of assault or abuse, so the APA’s definition might also be applied.

Rape Laws in California

Many states define rape and sexual assault the same way or similarly. California differs in this respect. California treats rape differently than sexual battery or sexual assault.

Under California law, rape is defined as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator,” in addition to one or more of the following circumstances:

  • A person cannot give consent because of a mental disorder or developmental or physical disability.
  • The perpetrator uses force, violence, duress, menace, or threatens bodily injury on the person.
  • The perpetrator knowingly engages in sexual activity when the victim is unconscious, making them incapable of resistance.
  • The perpetrator fraudulently represents himself as someone the victim knows.
  • The perpetrator threatens to hurt the victim or others in the future if the victim does not submit.
  • The perpetrator uses his or her authority or the authority of another public official to threaten incarceration, arrest, or deportation, or the perpetrator impersonates a public officer to make these threats.

Other Types of Sexual Assault

The California Coalition Against Sexual Assault (CALCASA) includes any forced, coerced, or unwanted sexual contact as sexual assault. They also acknowledge that sexual abuse is often used to describe many acts which are sexual assault. Some other acts which fall under the umbrella of sexual assault when considering CALCASA’s definition include:

Sexual Threats and Intimidation

Perpetrators can make sexual threats and intimidate others in person, via email, via text, and any other form of communication. In most cases, sexual assault, which includes threats and intimidation, occurs between people who know one another or those who might be in a relationship or married.

This type of assault is sometimes referred to as sexual coercion, and might include:

  • A partner or spouse threatening violence or manipulating their partner emotionally to get sex
  • A partner or spouse threatening to take children if the other doesn’t submit to sex
  • Drugging or forcing intoxication for sex
  • Ongoing sexual advances after someone has said no

Incest

When abuse or rape occurs between family members, incest has occurred. Incest often occurs between siblings or a parent and their child. When incest survivors are minors, they cannot consent, making them victims of child sexual abuse. Yet, California law treats incest a little differently; anyone over age 14 who engages in sexual activity with a close family member can be charged with a felony.

Spousal/Marital Rape

Traditional beliefs about marriage and antiquated laws in some states have made it permissible for a spouse to rape a partner, most often a husband rape his wife—that is, engage in sexual activity with his wife without her consent. Fortunately, California law acknowledges marital rape and makes it a crime on the same level as a perpetrator raping a stranger. Spousal rape might happen in abusive and domestically violent relationships, but it also might occur during separation, especially when a partner wants to end a marriage.

Sex Trafficking

California remains one of the worst states in the nation for human trafficking, the vast majority of which is sex trafficking. Traffickers exploit a wide array of vulnerabilities and promise victims love, a lucrative job, or stability. Many trafficking victims have been isolated from their families and friends and might be from a different country. Runaways and homeless youth might come from homes where they suffered sexual abuse, physical abuse, incest, addiction, and/or severe poverty, making it easier for traffickers to exploit them as sex workers.

Sexual Harassment

When sexual assault occurs at the workplace or a public space such as a university, it’s referred to as sexual harassment and more specifically defined as unwanted sexual advances, requests from sexual favors from those in positions of authority, and other sexual conduct and activity which falls under the following conditions:

  • The sexual activity is a term or condition of employment or education.
  • A person’s acceptance or refusal of sexual advances impacts decisions about employment or education.
  • The sexual conduct impacts a person’s performance at work or academic performance and creates a hostile environment.

Discussion of Definitions of Sexual Abuse and Sexual Assault

This guide gave you more in-depth knowledge about how California laws and survivor organizations define sexual abuse and sexual assault, but the introduction of other terms like sexual violence, rape, and battery might leave you uncertain about what you or a loved one experienced.

Attorney John Gomez

Sexual Abuse Attorney, John Gomez

The terms vary greatly, but no matter what you call it, unwanted sexual activity of any kind is a crime. Perpetrators cause tremendous emotional damage and sometimes physical damage to those whom they target, and California law entitles you to sue abusers for damages in civil court for compensation for your economic and non-economic losses, pain and suffering, and injuries.

Reporting and taking legal action after a sex crime has been committed against you or one you love can be scary. Yet, when you make the choice to take action, you not only seek justice for yourself, but you can help prevent abuses and perpetrators from harming others in the future.

If you are unsure of your decision to take action, contact a skilled personal injury attorney who understands California’s laws about sexual abuse and sexual assault and knows how to apply them to your situation. You can have a private, confidential, no-obligation consultation which will give you some insight on the options you have as you proceed. Your attorney can investigate your assault or abuse and build a case against the person(s) or organizations who harmed you.

If you are a survivor of child sexual abuse, you also have recourse against your abuser. Recent changes in California’s laws allow survivors extra time to bring a lawsuit against their abuser.  Starting January 1, 2020, victims of childhood sexual assault have a 3 year “window” to bring a lawsuit, regardless of how long ago the abuse occurred.  Starting on January 1, 2023, survivors must file a lawsuit by the time they are 40 years old, or within five years from discovering, or when they should have reasonably discovered, their abuse, whichever is longer. An attorney can help you understand your rights and seek compensation.


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