Sexual Assault Laws and Penalties

Sex crimes—particularly sexual assault, rape, or criminal sexual penetration—are very serious charges. A conviction can mean prison time, sex offender registration, and more.

By , Attorney · New Mexico School of Law
Updated 10/08/2021

The term sexual assault, in layperson 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. Other states have no crime known as sexual assault and instead define sexual conduct without consent as rape, criminal sexual penetration, criminal sexual contact, or sexual battery.

This article will provide a general overview of sexual assault crimes and their penalties. Consult your state law for more detailed information.

Definitions of Sexual Assault Crimes

Most states distinguish sexual penetration crimes from sexual contact crimes. Other categories of sex offenses may involve sex where a victim lacks the capacity to consent or the offender maintains a position of authority over the victim. (More on these categories below under "The Element of Consent.")

Rape and Criminal Sexual Penetration

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. 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 or object.

Sexual Battery and Criminal Sexual Contact

Most states also criminalize sexual conduct that does not include penetration, oral sex, or sodomy. Conduct that is sexual in nature and occurs without the other person's consent is usually 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.

The Element of Consent

Lack of consent is a crucial component of sex crimes. Sexual conduct becomes criminal when sexual touch is not consented to, because either:

  • the offender forces another person to be sexual against his or her will, or
  • the other person is considered incapable of consenting or has a diminished capacity to consent.

In this latter category, 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.

Sexual Conduct With a Minor

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. These close-in-age laws allow 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.

Sexual Conduct by a Person in Authority or Mental Health Care Provider

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 providing knowing and voluntary consent.

Defenses for Sexual Assault Crimes

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 a 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.

Penalties for Sexual Assault Crimes

Sexual assault laws regarding rape and criminal sexual penetration usually define this conduct as a felony with serious penalties. Sexual contact crimes may be felonies or misdemeanors.

Penalties for Rape and Criminal Sexual Penetration

Many states have divided the crime of rape into degrees, like rape in the first and second degree, or provide a category of aggravated sexual assault. 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 rape at gunpoint.

Possible sentences can range from one year to even life in prison, depending on the provisions of each state's sentencing statute or 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.

Penalties for Sexual Battery and Criminal Sexual Contact

Criminal sexual contact and sexual battery crimes that do not involve penetration usually are less serious offenses 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 force or coercion, however, can be a misdemeanor. An offender convicted of a misdemeanor can be sentenced to up to one year in jail but is not required to serve time in prison.

Penalties in Addition to Jail or Prison

A person convicted of a sex crime also will face penalties other than jail or prison. Sex offenders may be required to undergo treatment while incarcerated or as a condition of probation. Almost always, they will face the stigma of being registered as a sex offender for years or a lifetime.

Sex Offender Treatment

Similar to a court requiring an offender to undergo substance abuse or mental health treatment, a judge can order a convicted offender to participate in sex offender treatment. Certain prisons also have sex offender treatment services for inmates. (The effectiveness of such treatment is debated.)

Sexual Offender Registration

Every state has a sex offender registration and notification program. Sex offender registry statutes require that a person convicted of a sex offense register with law enforcement or another public safety agency where they reside. Typically, a sex offense requiring registration is any crime that includes sexual penetration or contact as an element. In some states, juveniles must register.

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 website that the public can search. Failing to register is also a crime.

Importance of Legal Representation

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 a misdemeanor sex crime can carry the stigma of that conviction for the rest of their life. And anyone who must register as a sex offender often 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.

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