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Pen. Code, § 243.4, subd. (c), does not require an express representation; it simply speaks to the situation where the defendant fraudulently represented that the touching served a professional purpose. In keeping with the statute's intent to criminalize sexual acts committed under the guise of professional services, it only makes sense to consider the totality of the defendant's conduct—not just his or her verbal statements—in determining whether he or she fraudulently represented the nature of the actions. Actions often speak louder than words: A false promise can as easily, perhaps more easily, be implied from conduct as from language.
Defendant chiropractor Chi Van Pham was convicted of sexual battery by fraud (Pen. Code, § 243.4, subd. (c)) for touching the intimate body parts of his patients while purporting to examine them. He appealed, contending that there was insufficient evidence to support the convictions because he did not mislead the patients into believing that the touching was for professional purposes.
Under the circumstances, could the defendant be held guilty of sexual battery by fraud?
The court of appeal held that there was sufficient evidence to support the convictions, even though defendant did not expressly tell the patients that his touching of their intimate body parts was for professional, medical purposes. Pen. Code, § 243.4, subd. (c), did not require an express representation. The totality of the defendant's conduct—not just verbal statements—was considered in determining whether he or she fraudulently represented the nature of the actions. The circumstances that supported a finding of fraudulent representation included the medical setting and the fact that the patients signed consent forms explaining their treatments might be uncomfortable. There was also sufficient evidence that the patients were unconscious of defendant's sexual intentions at the time of treatment.