Our attorneys focus on holding institutions responsible for allowing abuse to occur. We typically do not handle matters involving abuse by a personal acquaintance, family member, or other individual outside of an organization.

What is rape vs. sexual assault? Sexual assault is a blanket term for acts of sexual violence or non-consensual sexual contact. In California, sexual battery and rape are two separate and distinct crimes. When you speak with one of our attorneys, they will listen and explain the crimes that might apply to your situation. While it is our business to understand the law, being aware of the distinction between the two offenses can help you assert your rights. This page will explain the difference between sexual assault and rape in California. 

Difference Between Rape and Sexual Assault Under California State Law

According to California law, survivors can file a civil lawsuit against the perpetrator of sexual assault. Sexual assault means sexual battery, rape, rape in concert, sodomy, oral copulation, sexual penetration, spousal rape, and oral copulation with a minor. A survivor may also bring a lawsuit for an assault with the intent to commit a sex crime or an attempt to commit a sex crime.

difference between sexual harassment and sexual assault in California

What Is Sexual Battery?

The California Penal Code defines sexual battery as a sex crime where the perpetrator inappropriately touches another person’s intimate body parts without that person’s consent and for sexual arousal or gratification. The inappropriate touching can occur directly, through the clothing of the person committing the offense, or through your clothing. It may be charged as a felony or a misdemeanor depending on whether the touching happened when you were:

  • Unlawfully restrained; 
  • Institutionalized for medical treatment and seriously disabled or medically incapacitated; 
  • Unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose;
  • An employee of the perpetrator; or
  • A minor, if the perpetrator had a prior felony conviction for sexual battery.

While rape is excluded from the state’s definition of sexual battery, all forms of non-consensual sexual assault may be considered rape.

What Is Rape?

California defines rape as an act of sexual intercourse without express consent. Any act of penetration, however slight, is rape if:

  • The perpetrator knows the person is incapable of giving legal consent because of a mental disorder or developmental or physical disability;
  • It is accomplished against a person’s will through force, violence, duress, menace, or fear of immediate and unlawful bodily injury;
  • The person cannot consent because they are intoxicated or drugged;
  • If the person is unaware of the nature of the act because they were asleep, unconscious, or defrauded;
  • The perpetrator threatens to kidnap or falsely imprison the person or another, or to inflict extreme pain, serious bodily injury, or death; or
  • The perpetrator threatened to use their perceived authority as a public official to incarcerate, arrest, or deport the person or another.

California law defines consent as positive cooperation in act or attitude according to an exercise of free will. Requesting that the person use a condom or birth control is not consent. The person must act freely and voluntarily and understand the nature of the act. Rape is always charged as a felony.

When comparing rape and sexual battery, sexual battery is a broader crime encompassing any unwanted intimate touching and may be charged as a misdemeanor. A perpetrator may be charged with rape, sexual battery, and other sex crimes, depending on the nature of the act.

Difference Between Statutory Rape and Sexual Assault

For an act to be sexual assault or rape, the sexual contact must be without the person’s consent. On the other hand, consent is not at issue in a criminal charge of statutory rape. Statutory rape, or unlawful sexual intercourse, is an act of sexual intercourse with a person under 18 who is not the perpetrator’s spouse. By passing this law, the California legislature determined that because of the person’s age, they cannot legally consent. Statutory rape in California may be a misdemeanor or a felony charge, depending on the age of those involved. Survivors who have suffered damages from statutory rape can bring a sexual assault lawsuit in California, regardless of whether the perpetrator received a conviction in a criminal trial. 

How Long Do I Have to File a Lawsuit for Sexual Assault vs. Rape? 

For survivors, a civil lawsuit is one way to secure justice and recover compensation for the harm you endured. However, there are limits on the amount of time you have to file a lawsuit for sexual assault. Under existing law, you have 10 years from the date of the last incident or three years from the time you discover injury or illness caused by the sexual assault. However, new legislation opens a window to file a claim for sexual assault that occurred after January 1, 2009. The bill revives claims that would be barred under the 10-year rule. Survivors now have until December 31, 2026, to file a suit. The new rule includes claims for sexual battery, rape, and other sexual assault crimes. In some cases, you may also bring a suit against the organization or institution that covered up the assault.

Boucher LLP: Helping Survivors of Sexual Assault

Getting in touch with an attorney at Boucher LLP is the first step to seeking justice if you or your child are survivors of sexual assault in California. As part of our representation, Boucher LLP will assess your case’s viability in light of applicable sexual assault laws, including rape and sexual battery. You do not have to figure out California’s laws on your own. We can help you determine your rights and choices for filing a civil suit. If you deserve compensation, we will fight for fair results with you. Our team of experienced lawyers will work to tell your story while staying one step ahead of the defense. It’s not easy, but filing a lawsuit for sexual assault is one way to secure financial recovery and emotional closure for you and your family.