Monday, January 9, 2012

Sexual Battery As A Basis For Expulsion, Suspension, Or Other School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

I often speak with parents who are shocked and dismayed that their child has been alleged to have committed a sexual battery.  This word and allegation seem to be thrown around willy nilly without thought or understanding for what the REAL definition of sexual battery might be.  As such, understanding what "sexual battery" actually means is important and should be understood by everyone, lest such an allegation mar a student's record and reputation for life.

I am frequently surprised when I see suspension forms and/or expulsion recommendations containing the allegation of student "sexual battery."  This allegation is very heavy, and is specifically defined in the Education and Penal Codes.  This term should not be used unless proof actually exists to support the claim.  


California Education Code 
§48900(n) authorizes schools to suspend or expel students for sexual battery.  Rather than contain a definition in the Education Code, §48900(n) references California Penal Code section §243.4 for a definition of sexual battery.

Per Penal Code §243.4 the elements of sexual battery, in a nutshell, are: 

SEXUAL BATTERY occurs if:
-- A person touches a victim's intimate part and/or forces the victim to touch them or someone else, AND
--  This is against the will of the victim, AND
--  The touching is for the purpose of sexual arousal, gratification, or abuse, AND the act occurs:
* While the victim is unlawfully restrained, OR
* While the victim is institutionalized for medical treatment and is seriously disabled and/or medically incapacitated, OR 
* The victim is unconscious and is touched by a professional who falsely represented the touching was for a professional purpose.

[please note this is my summary only and is not a quote of the statute- please click link to get complete code]

Now which of these MAY apply with California students?  Any, but the one which would typically fit in a school setting is touching while a person is unlawfully restrained, correct?  The second scenario (institutionalized touching) could potentially occur if the victim and student were e.g. placed in residential treatment or the student was visiting a hospital, which is an uncommon occurrence.  The third one (professional) seems to apply to e.g. therapists, doctors, or other such individuals.

If the charge of sexual battery is levied against a student, the parents need to immediately bring the matter to an education attorney to review the facts and circumstances so this allegation can be evaluated and confronted promptly.  If not, the student may have this heinous allegation haunt them for years to come. They may also be cited by the police for alleged sexual battery when none occurred.  


Additionally, parents may be talked into signing an agreement (expulsion, suspension, behavior contract, etc.) which contains a school sexual battery charge.  Or, if they choose instead to go to e.g. an expulsion hearing, they will present their defense of "no sexual battery" to an expulsion panel of non-legal personnel (district employees) who may not grasp just WHAT a sexual battery is and/or whether the student involved actually sexually battered someone.  Even if a parent brings the law with them, or attempts to explain what a sexual battery is to the expulsion panel, they may not be listened to as they are not attorneys.  As attorneys are the only ones licensed to interpret the law, without an attorney, a parent's best argument of NO SEXUAL BATTERY, may still fall on deaf ears.

Parents, it is vital that you seek out legal help if your child has the charge of sexual battery levelled against him or her.  Failing to do so, can have horrible consequences and your child may be marred by such allegations for life.  Don't make the mistake of misunderstanding just what you are getting into when facing a sexual battery allegation.

Best, 

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

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