What is the difference between sexual battery and rape?

In most states, sexual battery is a less serious crime than rape.

The crime of rape involves forcing another person to engage in sexual intercourse, anal sex, or other sexual activity involving even the slightest form of penetration, without that person’s consent or against the person’s will. In some states, this crime is referred to as sexual battery and the terms “rape” and “sexual battery” are used interchangeably.

In other states, however, sexual battery refers to a different crime that is sexual in nature but does not involve penetration and usually is a less serious offense. This crime often is defined as unwanted sexual touching of intimate body parts without consent or through fraud. Some sexual battery laws also require that the offender commit the act for the purpose of sexual gratification or arousal. Some state laws refer to this crime as criminal sexual contact (as opposed to criminal sexual penetration).

Examples of this type of sexual battery include:

  • patting a person’s buttocks
  • grabbing or fondling a woman’s breast
  • touching the victim’s genital area
  • forcing the victim to touch an intimate part of the offender’s body, or
  • even forcing a kiss on the mouth.

The Issue of Consent

Sexual touching or penetration that is unwanted or without consent is done against the victim’s will or without the victim’s willing involvement. This can include:

  • the use of physical force
  • threats, such as threatening to harm a victim or another person if the victim resists
  • touching or penetration after the victim has said “no” or “stop,” or
  • touching or intercourse with a person who does not have the ability to knowingly consent, such as a child or a person with a mental disability.

Sexual battery or rape by fraud involves coercing a victim to consent to sexual touching or intercourse by misleading the person about the reason for physical contact. A photographer who claims he is “arranging” the victim’s body or body parts for a photography shoot could be charged with sexual battery if the touch is sexual or meant for sexual gratification. A massage therapist or health care provider who claims touch or intercourse is therapeutic or otherwise necessary could be charged with sexual battery or rape.

Felony or Misdemeanor?

Rape is a felony crime, which almost always means that the punishment includes the possibility of time in prison. If the crime of sexual battery is defined as touching and not sexual intercourse or penetration, it can be a felony or misdemeanor, depending on the circumstances. The crime can be a felony if it involves:

  • skin to skin contact (without clothing)
  • sexual contact with a child, or
  • sexual contact with a restrained or unconscious victim.

The Importance of Legal Representation

No one should face a rape or sexual battery charge without being represented by an attorney. If you have been accused of or charged with any sex crime, contact an attorney immediately. If you are charged with rape in a state that defines sexual battery as unwanted touching, you may be entitled to have sexual battery be included as a lesser offense in your charges (as an alternative to rape), or the prosecutor might consider a plea agreement for sexual battery rather than rape. A knowledgeable attorney will understand these options and alternatives, advise you of your rights, guide you on what steps to take or not take in your situation, and represent you in the court system if you are formally charged.

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