The best sexual assault lawyers and attorneys will tell you that sexual assault is a widespread issue. Anyone, regardless of age, gender, or sexual orientation can experience sexual assault. So how do you defend yourself against sexual violence once the act has occurred?
Remember That You Do Not Have To Fight
One of the questions survivors of sexual assault are constantly forced to answer is, “Why didn’t you fight back?” This question is problematic in two ways. Firstly, it implies that survivors ought to shoulder some of the blame for being assaulted. By not fighting back or attempting to defend themselves, survivors of sexual violence are often deemed complicit in their own assault. The idea that someone has to physically defend themselves against an attacker in order for their assault to be considered an actual crime or violation, buys in to the victim blaming narrative that dominates our society. Survivors do not have to fight in order for their assault to be legitimate.
In many cases, people who are exposed to sexual harassment or assault simply cannot defend themselves. The second major issue of the ‘fight back’ idea is the very fact that fighting back can put survivors at greater risk. By physically defending themselves in the moment, or by verbally accusing their attacker later, survivors put themselves at risk. Speaking out against an employer can result in a survivor losing their job, while physical defense can result in serious harm and even death.
Legal Defense Against Sexual Assault
Although the Department of Justice defines sexual assault as “any type of sexual contact or behavior that occurs without the explicit consent of the recipient”, the definition of the crimes that fall under the umbrella term ‘sexual assault’ varies from state to state. Section 243.4 of the California Penal Code outlines some of the requirements needed to make a case of sexual assault/battery:
The defended touched the victim’s intimate parts.
Intimate parts are defined as the “sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” Touching can occur indirectly, over the clothing of the victim, or via direct skin contact.
The touching was not consensual.
Touching against the victim’s will can occur if they are restrained by the defendant or an accomplice, are seriously disabled or medically incapacitated, are unconscious for any reason, or if the defendant fraudulently led the victim to believe the touching served a professional or medical purpose.
The defendant intended to engage in the unwanted touching for the purpose of sexual gratification, sexual arousal, or sexual abuse.
Mounting A Defense
Most sexual assault defenses are based upon the issue of consent. Often, survivors believe that there is no point in coming forward or making an accusation if they do not have physical evidence, such as DNA, positive drug tests or even witness testimony. However, although physical evidence can play an important role in mounting a defense, it is not a requirement. After opening a case, a sexual assault attorney will help you find a way to prove to a judge that you were not able to properly consent.
If a defense is mounted, the possible penalties for sexual assault/battery are:
Misdemeanor Sexual Battery
If convicted, the defendant can spend up to six months in a county jail, and be charged a fine of $2,000. If the victim was employed by the defendant, the fine can be increased to $3,000.
Felony Sexual Battery
Punishment for felony sexual battery varies. The defendant can be imprisoned in a county jail for up to 1 year and forced to pay a $2,000 fine. California law also allows defendants to be imprisoned in state prison for 2,3 or 4 years, and can enforce a fine of up to $10,000.
In instances where sexual assault leads to non-consensual sexual intercourse, defendants are charged with rape rather than sexual battery. Those convicted of sexual battery are often required to register as sex offenders.
We know that accusing someone of sexual assault is incredibly difficult. The stigma associated with sexual violence, as well as the pervasiveness of rape culture and victim blaming, makes opening a case a potentially traumatic experience in of itself. Always remember that if you or someone you know needs legal assistance, the California Legal Team are here to help. We believe you, and we are ready to listen.