Cause of Action

The cause of action for sexual battery in a civil suit is provided in Civ. Code § 1708.5. Civ. Code § 1708.5 “requires the batterer intend to cause a ‘harmful or offensive’ contact and the batteree suffer a ‘sexually offensive contact.’” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225; Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208).

Civ. Code § 1708.5 states:

1. A person commits a sexual battery who does any of the following:
1. Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
2. Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.
3. Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

Definitions

“Intimate part” means “the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.” (Civ. Code § 1708.5(d)

“Offensive contact” means “contact that offends a reasonable sense of personal dignity.” ((Civ. Code § 1708.5(f))

Consent

This section is interpreted to require that the batteree did not consent to the contact. (Angie M. v. Superior Court (1995) Cal.App.4th 1217, 1225). Consent to sexual intercourse is vitiated by one partner’s fraudulent concealment of risk of infection with venereal disease, whether or not partners involved are married to each other. (Kathleen K. v. Robert B. (1984) 150 Cal.App.3d 992, 997).

Liability

Vicarious Liability

A plaintiff may seek to apply vicarious liability through respondeat superior or ratification. However, in applying respondeat superior, courts have found in multiple cases that sexual misconduct towards a third party falls outside the scope of employment as a matter of law. See Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 (deputy sheriff sexually harassed other deputy sheriffs at county jail); John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 (teacher sexually molested student at teacher’s apartment during extracurricular program); Daza v. Los Angeles Community College Dist. (2016) 247 Cal.App.4th 260(guidance counselor sexually battered student); M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121 (firefighters sexually assaulted photographer during costume ball)).

In a case with an alleged sexual battery by an ultrasound technician, the California Supreme Court explained its refusal to impose liability under the doctrine of respondeat superior as follows:

"Hospital employed a technician to conduct ultrasound examinations. The technician, after completing such an examination of plaintiff, took advantage of plaintiff's trust and his own superior knowledge to commit on her a deliberate sexual battery. His reasons for doing so did not derive from any events or conditions of his employment, nor were his actions provoked by anything that occurred during the prescribed examination. Hospital, by employing the technician and providing the ultrasound room, may have set the stage for his misconduct, but the script was entirely of his own, independent invention. For this reason it would be unfair and inconsistent with the basic rationale of respondeat superior to impose liability on Hospital irrespective of its own negligence."

(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 306).

Statute of Limitations

The statute of limitations for a sexual battery claim is two years. CCP § 335.1.

Pleading

The elements of sexual battery under Civ. Code § 1708.5 must be specifically alleged. Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790).

Related Causes of Action

The rights and remedies provided in Civ. Code § 1708.5 are in addition to any other rights and remedies provided by law. (Civ. Code § 1708.5(e)). A general battery may be distinct from and broader than an alleged sexual battery. (See CACI Nos. 1300 and 1307; Cal. Civ. Prac. Torts § 12:10.) Medical negligence, medical battery, and sexual assault claims do not preclude sexual battery claims.

Relief

The court in an action pursuant to Civ. Code § 1708.5 may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper. (Civ. Code § 1708.5(c)).

Damages

A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages. (Civ. Code § 1708.5(b)).

Punitive Damages

Health Care Providers and Civil Procedure § 425.13

Civil Procedure § 425.13 may be applicable in a claim for punitive damages against health care providers. In Central Pathology Service Medical Clinic, Inc. v. Superior Court, the California Supreme Court explained:

“The allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant’s conduct would not be directly related to the manner in which professional services were rendered…..The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.”

(Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192). In that case, the Supreme Court found that plaintiff’s causes of action for fraud and intentional infliction of emotional distress were subject to Section 425.13 because the claims were directly related to the manner in which defendants provided professional services.

Subsequent Courts of Appeals have also held that Section 425.13 applies to an action filed against a health care provider that directly relates to the providing of health care services, even where the claim involves allegations of intentional wrongdoing. See United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500; Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749; Davis v. Superior Court (1994) 27 Cal.App.4th 623, 625-626.

Cooper, which concerned an alleged sexual assault by a gynecologist during a gynecological examination, provided further explanation on when sexual battery against a doctor or health care provider would not be related to the manner in which the professional services were rendered:

“Most types of services rendered by health care providers do not involve the genitalia. Thus if a podiatrist, ophthalmologist or dentist touches or manipulates a patient’s genitalia, there will usually be no arguable connection between such conduct and the rendition of legitimate health care. If a patient consults an orthopedic surgeon for treatment of bursitis in an elbow, there would usually be no occasion for the surgeon to touch or manipulate that patient’s genitalia. A doctor consulted for nutritional advice about cholesterol levels would not likely have a legitimate medical reason for manipulating genitalia. The list of examples of this type is endless. A doctor rendering gynecological care, by contrast, cannot render the full panoply of gynecological services without touching, probing or otherwise manipulating a woman’s genitalia. Thus when a gynecologist is accused . . . of committing a sexual battery in the course of rendering gynecological services, that accusation is necessarily ‘directly related’ to the manner in which the gynecological services were rendered.”

(Cooper, supra, 56 Cal.App.4th at 751).

Jury Instructions

Jury instructions for sexual battery are in CACI No. 1306.