The term sexual assault, in lay person terms, usually refers to an attack on a person that is sexual in nature. The legal definition of this term actually differs, however, from state to state. In some states, sexual assault is synonymous with rape – forced sexual intercourse or sexual contact without consent – while other states have no crime known as sexual assault and instead define sexual conduct without consent as rape[O1], criminal sexual penetration, criminal sexual contact and sexual battery[O2].
For more information on rape and penalties, see Rape: Laws and Penalties.
To learn more about other sexual assault and battery law, see Sexual Battery Laws.
States differentiate between rape and other types of illegal sexual contact.
Whether a state’s laws call forced sexual intercourse “sexual assault,” “rape,” “sexual battery,” or “criminal sexual penetration,” the criminal conduct usually is designated as sexual penetration or sodomy without consent. Sexual penetration normally is defined as penetration of the vagina with a body part or an object and sodomy normally is defined as oral sex – contact between the mouth and penis or female genitalia – or penetration of the anus with a body part of object.
Most states criminalize sexual conduct that does not include penetration, oral sex or sodomy, but that is conduct that is sexual in nature and occurs without the other person’s consent. This conduct usually is referred to as sexual battery or criminal sexual contact. (Note: Some states define sexual battery as sexual penetration while others define it as only sexual touching.) A common definition for sexual battery is touching of an intimate part of the body (clothed or unclothed, depending on the state) for the purpose of sexual arousal or pleasure, without the other person’s consent; or forcing another person to touch an intimate part of the offender’s body.
Lack of consent is the crucial component of sex crimes. Sexual conduct becomes criminal when sexual touch is not consented to, either because the offender forces another person to be sexual against his or her will, or because the other person is considered incapable of consenting or has a diminished capacity to consent. States generally criminalize sex with a minor under the age of fourteen or fifteen, a developmentally disabled person, someone who is mentally ill, or a person who is incapacitated – drugged, drunk or unconscious – or otherwise physically helpless. When sexual contact is with a developmentally disabled or mentally ill person, the issue of consent may be whether the person had the capacity to knowingly consent to sexual contact.
In some states, sex with a minor is criminalized only if the offender is older than the victim by a certain number of years – more than three years, for instance. This allows for a fifteen year old to have sex with her eighteen year old boyfriend without the boyfriend’s actions being criminal. If a 21 year old had sex with a 15 year old in the same state, however, the sex would be criminal.
Many states also criminalize sex between a person in authority – such as a teacher, police officer or prison guard – and someone over whom that person has authority – a student, a person in police custody, or a prisoner in a correctional facility or jail. The rationale for criminalizing this conduct is that capacity to consent is diminished by the authority the teacher or other authority figure has over the student or other person.
Many states also criminalize sex between a psychotherapist or other mental health care provider and a client or patient on the grounds that the nature of the relationship makes the client or patient incapable of knowing, voluntary consent.
Defendants charged with sexual assault have the usual defenses available to all criminal defendants, starting with “Someone else committed this offense.” A defendant also can claim that the sexual activity was consensual. In a sexual assault case, there can be significant questions about what constitutes consent or what constitutes refusal. This has led to the infamous question of when does “No” mean “No.” Is it as soon as the word is spoken, or must the victim object more vigorously?
Another possible defense is an insanity defense, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior, to form criminal intent, or to understand what he was doing or that his actions were unlawful.
Sexual assault laws regarding rape and criminal sexual penetration usually define this conduct as a felony with serious penalties.
Many states have divided the crime of rape into degrees, like rape in the first and second degree. The charge will depend on the type of force used, whether the sexual assault resulted in serious bodily injury, or whether it was committed with a deadly weapon, such as a rape at gun point. Possible sentences can range from one year to even life in prison, depending on the provisions of each state’s sentencing statute or sentencing guidelines. Some states require a minimum prison sentence or require the court to impose a prison sentence without probation or early parole. In other states, the judge may have some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation rather than in prison.
Criminal sexual contact and sexual battery that do not involve penetration usually are less serious crimes and subject an accused to lighter penalties than rape or criminal sexual penetration. But criminal sexual contact that results in personal injury or is committed with a deadly weapon or by more than one person normally is a felony. Criminal sexual contact without a weapon that involves only force or coercion, however, can be a misdemeanor. An offender convicted of a misdemeanor can be sentenced to up to one year in a jail but is not required to serve time in prison.
A person convicted of a sex crime also will face penalties other than jail or prison. Sex offenders normally are required to undergo treatment either in jail or prison or as a condition of probation.
Every state in the U.S. has a sex offender registration and notification program. Sex offender registry statutes require that a person convicted of a sex offense register with the sex offender registry in whatever state he lives in. A sex offense requiring registration is any crime that includes sexual penetration or sexual contact as an element.
Registration as a sex offender requires a person to have his name, address and information about his crime on file with the registry. Some or all of that information is available to the public and every state has a sex offender web site that the public can search.
A sex crime, particularly sexual assault, rape or criminal sexual penetration is a very serious charge. A conviction for rape or even misdemeanor sexual battery can seriously impact your life. You could face a lengthy prison sentence and the stigma of being a convicted felon. Convicted felons cannot vote or possess firearms and often have difficulty finding employment. Even someone convicted of only a misdemeanor sex crime can carry the stigma of that conviction for the rest of his life. And anyone who must register as a sex offender faces a lifelong challenge of finding work and housing.
A competent criminal defense attorney can help you fight a sexual assault charge, protect your rights and achieve the best possible outcome. An attorney will thoroughly investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process. In particular, if you are charged with a "registerable" offense and do not have a viable defense, you'll want an attorney to look into the possibility of a plea bargain that will not involve a plea to a registerable crime.