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Understanding the Element of Force for a Finding of Sexual Battery

Sexual battery is a Class 1 misdemeanor in Virginia punishable by up to 12 months in jail and/or a fine of up to $2500.It is defined as sexual abuse of the complaining witness against their will “by force, threat, intimidation, or ruse.” Va. Code § 18.2-67.4(i).

“Sexual abuse” is “an act committed with the intent to sexually molest, arouse, or gratify any person where: (a) the accused intentionally touches the complaining witness’ intimate parts or material directly covering such intimate parts.” Va. Code § 18.2-67.10(6)(a). Learn more about cases on force in sexual battery and contact us as sexual battery lawyers near me for more information on your case.

Johnson v. Commonwealth and Force in Sexual Battery

It sometimes happens that a defendant is improperly charged with sexual battery due to an alleged touching of a complainant’s intimate parts where the defendant used no more force than the force necessary to accomplish the touching itself.  See e.g. Johnson v. Commonwealth5 Va. App. 529, 534 (1988).

In other words, “unless some force is used to overcome the will of the complaining witness, the unlawful touching constitutes common law assault and battery” unless accomplished by ruse, threat, or intimidation. Id. (emphasis added)Furthermore, evidence that the defendant purportedly acted without warning or provocation cannot satisfy the “force” element of sexual battery.  Woodard v. Commonwealth27 Va. App. 405 (1988). 

Woodard v. Commonwealth | The Difference Between Sexual Battery and Sexual Abuse

In reviewing the relevant appellate decisions, there is no case that supports that a defendant has committed a sexual battery when no more force than the force necessary to accomplish the touching is used.  For example, in Woodard v. CommonwealthWoodard entered the victim’s apartment.

After the victim told Woodard that she did not want to date him, Woodard “squeezed her breasts, grabbed her between the legs and departed.” Woodard v. Commonwealth27 Va. App. 405, 407 (1998).  This was sexual abuse, but it had not been accomplished by force [or threat] requiring the Court of Appeals to reverse the defendant’s sexual battery conviction. Id.

Wilson v. Commonwealth Nonconsensual Touching and Force

In Wilson v. Commonwealththe complaining witness testified that while at work, she went to get a soda and while standing facing the soda machine, she felt someone grab and squeeze her buttocks.  She turned and saw the appellant standing behind her, and told him never to do that again.  He responded, “it looked so tempting, I just had to do it.”  The witness testified that Wilson grabbed her “with such force that she had to step forward to maintain her balance.”   Wilson v. Commonwealth, Record No. 2636-96-2, 1997 Va. App. LEXIS 672, at *2-3 (Ct. App. Nov. 4, 1997).  The Court of Appeals reversed Wilson’s sexual battery conviction holding that Wilson “used no force beyond that necessary to squeeze G.W.’s buttocks. While the unlawful touching was patently nonconsensual, it was accomplished bsurprise, not by force.” Id. at *5.

Robinson v. Commonwealth on Sexual Battery, Intent & Force

However, if more force than necessary is used to accomplish the touching of an intimate part and the defendant’s actions are intended to overbear the complainant’s will, this constitutes sexual battery.  In Robinson v. Commonwealth, decided in June 2019, the Virginia Court of Appeals upheld Robinson’s conviction when he grabbed and twisted the complaining witness’ breasts “as hard as he could” for a minute.

The Court found the force, the duration of the illegal touching, and the fact that the complaining witness had once slapped Robinson’s hands away and previously warned Robinson not to touch her, met the force element of the statute and clearly demonstrated that Robinson intended to overbear the complainant’s will.

Sexual Battery Lawyers Near Me

King, Campbell, Poretz PLLC has successfully defended sexual battery allegations in Alexandria, Northern Virginia and Maryland.