CALCRIM No. 938

The defendant is charged [in Count] with sexual battery [in

violation of Penal Code section 243.4(e)(1)].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant touched an intimate part of <insert

name of complaining witness>;

2. The touching was done against ’s <insert name of

complaining witness> will;

AND

3. The touching was done for the specific purpose of sexual arousal,

sexual gratification, or sexual abuse.

An intimate part is a female’s breast or the anus, groin, sexual organ, or

buttocks of anyone.

Touching, as used here, means making physical contact with another

person. Touching includes contact made through the clothing.

[An act is done against a person’s will if that person does not consent to

the act. In order to consent, a person must act freely and voluntarily and

know the nature of the act.]

[Sexual abuse includes touching a person’s intimate part[s] (to insult,

humiliate, or intimidate that person for a sexual purpose/ [or] to

physically harm the person for a sexual purpose).]

<Defense: Reasonable Belief in Consent>

[The defendant is not guilty of sexual battery if (he/she) actually and

reasonably believed that the other person consented to the touching [and

actually and reasonably believed that (he/she) consented throughout the

act of touching]. The People have the burden of proving beyond a

reasonable doubt that the defendant did not actually and reasonably

believe that the other person consented. If the People have not met this

burden, you must find the defendant not guilty.]

New January 2006; Revised February 2016, September 2017, September 2024