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What Is the Difference Between Sexual Assault and Sexual Abuse?

Posted by Dmitry Gorin | Nov 17, 2023

The terms "sexual assault" and "sexual abuse" are often used interchangeably in our everyday vocabulary. Indeed, different states have broad and differing definitions for each.

However, under California law, they represent two different categories of sex crimes with distinct meanings and implications. In the most general terms, sexual assault refers to sex crimes committed against adults, while sexual abuse refers to sex crimes committed against children.

What Is the Difference Between Sexual Assault and Sexual Abuse in California?

Some laws define a child as a minor under the age of consent, while others specify a younger age, such as Penal Code 288.5 PC continuous sexual abuse of a child.

To be charged with this serious crime requires that the alleged perpetrator lives in the same home with the minor (under 14) or has recurring access to the child. They must also engage in three or more specific acts of sexual lewd or lascivious conduct with the child for at least three months.

Sexual conduct includes masturbation or any sexual contact, such as sexual intercourse, oral sex, or statutory rape. Lewd or lascivious conduct is the willful touching of a child for the purpose of sexual arousal.

Sexual assault, often called “sexual battery,” is generally a sex crime committed on an adult victim. However, this type of sex crime does not involve sexual intercourse or penetration. For example, a sexual assault typically involves touching someone else's intimate parts against their will and doing so for the purpose of sexual arousal or gratification.

In either situation, you could be looking at significant prison time if convicted of either type of crime, not to mention required registration as a sex offender. That said, let's look at the difference between the two.

What is Sexual Assault Under California Law?

Broadly speaking, sexual assault refers to a range of non-consensual sexual acts against an adult victim. However, in terms of criminal charges under California law, sexual assault refers to the crime of sexual battery.

Sexual Battery - California Penal Code 243.4 PC

Penal Code 243.4 PC says, “(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.

 A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, a fine not exceeding $2,000, or imprisonment in the state prison for two, three, or four years, and a fine not exceeding $10,000.

Sexual battery is defined as the unlawful touching of an intimate part of another person for the purposes of sexual arousal, gratification, or abuse without the consent of the person. This can occur either directly on the skin or through clothing.

Interestingly enough, while rape is certainly sexual assault, California law tends to view rape and sexual assault as two different crimes for purposes of the law—with differing penalties for each.

The differentiating factor is penetration. Rape, Penal Code 261 PC, refers to forcible sexual intercourse with penetration, while sexual assault (battery) refers to other forms of sexual touching that do not include penetration.

What About Consent?

The key aspect that defines sexual assault is the lack of consent from the victim. Consent, as defined by California law, must be an explicit, informed, and voluntary agreement to engage in sexual activity.

It should also be noted that consent can be withdrawn at any time during the sexual activity, and if the activity doesn't cease when consent is withdrawn, it becomes a crime. Furthermore, if an individual is incapacitated due to alcohol, drugs, or mental disability, they are legally unable to give consent. Coercion, whether by threat, force, or intimidation, also nullifies consent.

For instance, if an individual engages in a sexual act with someone who is significantly intoxicated and unable to make informed decisions, it may be considered sexual assault as the intoxicated individual could not provide valid consent.

What Are Other Forms of Sexual Assault?

While the term "sexual assault" in California is most commonly used to refer to sexual battery, other sex crimes may also fall into the broader category of sexual assault because of their lack of consent. These include, but are not limited to, the following:

  • Oral copulation by force or fear defined under Penal Code 287 PC: Non-consensual contact between the mouth of one person and the anus or genitals of another.
  • Forcible penetration with a foreign object defined under Penal Code 289 PC: Non-consensual penetration of another person's anus or genitals with an object or device (as opposed to a body part).

What is Sexual Abuse Under California Law?

Sexual abuse in California broadly refers to any unlawful sexual conduct with a minor, whether or not penetration or even physical contact is involved.

Any sexual act committed with (or against) a child under the age of 18 is considered a non-consensual sex crime because, under California's legal definitions, children under 18 are not old enough to give consent. Examples of sex crimes in California that fall into the category of sexual abuse include, but are not limited to:

  • Lewd or lascivious acts with a minor defined under Penal Code 288 PC: This involves any lewd or lascivious act upon or with the body, or any part thereof, of a child under the age of 14 years with the intent to arouse, appeal to, or gratify the lust or passions or sexual desires of the perpetrator or the child. Such acts committed with older minors are usually prosecuted as statutory rape or sexual battery.
  • Child molestation defined under Penal Code 647.6 PC: This involves any act toward a minor that has a sexual motivation that is intended to "annoy," whether or not physical touching is involved. Under California law, "molest" and "annoy" are synonymous.
  • Child pornography defined under Penal Code 311 PC: This includes producing, distributing, or possessing explicit material involving a minor for sexual purposes.
  • Statutory rape defined under Penal Code 261.5 PC: This crime refers to sexual intercourse with a person under the age of 18, regardless of whether it's considered "consensual."
  • Solicitation of a minor defined under Penal Code 288.4 PC: This includes arranging a meeting with a minor or a person believed to be a minor for lewd or lascivious purposes following explicit sexual communication.
  • Continuous sexual abuse of a child defined under Penal Code 288.5 PC: A specific offense charged when a child living in the same home with the perpetrator is subjected to three or more instances of sexual abuse.

Contact our California criminal defense lawyers for a case review. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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