Rape, sexual assault or criminal sexual penetration is sexual intercourse that is forced on another without the person’s consent or against the person’s will. A lesser form of this crime – referred to as sexual battery or criminal sexual contact – is sexual contact or touching that does not involve intercourse or sexual penetration but is still a criminal offense. (The term “sexual battery” refers to criminal sexual touching in some states, but to the more serious offense of rape or criminal sexual penetration in other states.)
Rape, sexual assault or criminal sexual penetration is defined as sexual penetration or sodomy without consent. Sexual penetration is penetration of the vagina with a body part or an object and sodomy refers to oral sex – contact between the mouth and penis or female genitalia – or penetration of the anus with a body part of object.
Sexual battery or criminal sexual contact is sexual conduct that does not involve penetration or sodomy, but does involve physical contact of a sexual nature without the other person’s consent. It often is defined as the 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 for the same purpose.
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 consent or to have diminished mental capacity to consent. Those who are deemed incapable of consent include minors under the age of fourteen or fifteen, regardless of their mental abilities to understand the nature of the act and their ability to refuse (but see “Sexual Conduct with a Minor,” below). In addition, sex with the following people is criminal if they do not have the capacity to knowingly consent:
- a developmentally disabled person
- someone who is mentally ill, and
- a person who is incapacitated – drugged, drunk, or unconscious – or otherwise physically helpless.
Sexual Conduct with a Minor
In some states, sexual contact with a minor above a certain age 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 sexual contact with her eighteen year old boyfriend without the boyfriend’s actions being criminal. If a 21 year old has sexual contact with a 15 year old in the same state, however, the sexual contact would be criminal.
Sexual Conduct by a Person in Authority or a Mental Health Care Provider
Many states also criminalize sexual contact between a person in authority, such as a teacher, police officer, or prison guard; and someone over whom that person has authority, like a student, a person in police custody, or a prisoner. 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 sexual contact 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 battery or criminal sexual contact have the usual defenses available to all criminal defendants, starting with “Someone else committed this crime.” A defendant can also claim that the sexual activity was consensual. In a criminal sexual contact 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?” Does the word constitute a lack of consent as soon as it is spoken, or must the victim object more vigorously?
Another possible defense is an insanity plea, 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.
Penalties: Imprisonment or Jail
Criminal sexual contact or sexual battery that does not involve penetration is usually considered a less serious crime than rape, and subjects an accused to lighter penalties than rape or criminal sexual penetration. However, 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.
Sentences for this type of crime can range from one to several years in prison, depending on the circumstances and the state’s 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 without a weapon that involves only force or coercion 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.
Penalties: Sexual Offender Registration
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 the state where he resides. 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 is a very serious charge. A conviction for even misdemeanor sexual battery can seriously impact your life. Defendants face the possibility of a lengthy prison sentence and the stigma of being a convicted felon (felons lose the ability to vote or own firearms). Being required to register as a sex offender is considered by many as the most onerous consequence because the label “sex offender” has such a negative connotation in the public eye.
For these reasons, it’s essential for defendants to secure competent counsel as soon as possible. An experienced criminal defense attorney will thoroughly investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process. Many of these cases plead to lesser offenses that do not require sex offender registration. Obtaining a good plea bargain or defending yourself at trial will require the assistance of a professional who is familiar with the way cases like yours are handled by the prosecutors and judges in your courthouse.