Virginia Sexual Assault and Battery Laws

Under Virginia law, "criminal sexual assault" is the legal term for crimes commonly referred to as rape. Acts of sexual penetration and similar conduct (like oral sex) are sexual assaults in Virginia when they're committed by force or fear, or against someone incapable of consenting. Less serious sexual assaults are called "sexual battery." A conviction for sexual assault can have serious consequences, including jail or prison time, and sex offender registration.

What is Sexual Assault Under Virginia Law?

People often think that a sexual assault necessarily involves sex against another person's will, by force. But in some situations, a person can commit a sexual assault when the other person doesn't resist or complain, and even when the person agrees to the sexual activity. This is because under the law, some people are considered unable to consent.

In Virginia, people who have a "mental incapacity" or are "physically helpless" are unable to consent. A mental incapacity includes any condition that prevents the victim from understanding the nature or consequences of the sexual act. Physical helplessness includes any condition, such as unconsciousness, that prevents a person from declining or resisting the sexual conduct. Usually, minors (people under 18 in Virginia) are also unable to consent because the law assumes they're too young to fully understand what they're consenting to.

Below are some sexual assault crimes commonly charged in Virginia:

• Rape: Virginia defines rape as sexual intercourse (penile penetration of the vagina), against the victim's will by use of force or threat of force, or against a victim who is under 13 or unable to consent due to mental incapacity or physical helplessness. Rape is a felony.
• Forcible sodomy: In Virginia, anal sex and oral sex are considered acts of sodomy. As with rape, sodomy is a felony when the defendant uses or threatens to use force, or when the victim is under 13 or unable to consent mentally or physically.
• Object sexual penetration: Sexual penetration with any object other than a penis is a felony when committed with force or threats of force, or on a person who can't consent or is under 13.
• Carnal knowledge of a child (commonly known as statutory rape): "Carnal knowledge" is sexual intercourse, oral sex, anal intercourse, or sexual penetration with any object. Even with consent, it's a felony when the defendant is an adult (over 18) and the minor is 13 or 14. When the defendant is under 18, and at least three years older than the victim, the offense is a less serious felony; but when the defendant is less than three years older, it's a misdemeanor. Sex between an adult and someone 15, 16, or 17 is not classified as sexual assault, but it's still illegal: It's called "causing or encouraging acts rendering children delinquent" and is a misdemeanor.
• Carnal knowledge of a detained person: Committing any acts of carnal knowledge described above is a felony when the other person is in state custody (juvenile hall, jail, prison, probation, or parole) and the defendant is in a position of authority over the detained person.
• Sexual battery: Less serious unwanted sexual contact is a sexual battery. A defendant commits sexual battery by touching a person's "intimate parts" (genitalia, anus, groin, breast, or buttocks) by force, threat, intimidation, or "ruse" (tricking the victim into agreeing to the touching). A defendant can also be guilty of sexual battery when the victim hasn't consented to the touching, and the prosecution can prove the defendant touched more than one victim, or the same victim more than once, within a two-year period. Sexual battery also results when the defendant is in a position of authority and sexually touches a detained person. The offense is a misdemeanor unless it's aggravated sexual battery (see below).
• Aggravated sexual battery: Any sexual touching described in the sexual battery section above is "aggravated" (and a felony) if committed on someone under 13 or who can't consent, or is committed by a parent or grandparent on someone 13 to 17. It's also aggravated when the defendant uses a weapon, causes injury, or uses force on someone 13 or 14.

Punishment for Sexual Assault

Each of the above offenses carries a range of punishments that reflects its level of seriousness. For example, rape, forcible sodomy, and sexual object penetration are punishable by a minimum of five years and up to life in prison. Carnal knowledge (statutory rape) committed by an adult on someone 13 or 14 is punishable by 2 to 10 years, but when committed by a minor who is less than three years older than the other minor, it's punishable by only a fine.

The possible sentences for any sex offense will vary depending on the facts of the case. The punishments for sexual assault offenses discussed above can be found in the statutes for those offenses: VA Code §§ 18.2-61 (rape); 18.2-67.1 (forcible sodomy); 18.2-67.2 (object sexual penetration); 18.2-63 (carnal knowledge of child between 13 and 15); 18.2-64.2 (carnal knowledge of detained adult); 18.2-64.1 (carnal knowledge of detained minor); 18.2-67.4 (battery); 18.2-67.3 (aggravated battery).

Second Chance for a First Offense on a Spouse

Virginia has an unusual rule for sexual assaults committed against a spouse. If a jury finds a defendant guilty of spousal sexual assault and the defendant has no prior sexual assault convictions, the judge can decline to enter a judgment of guilty, and grant probation with the condition that the defendant complete therapy. This option exists only if the prosecutor and the victim (the other spouse) agree to it. If the defendant completes the therapy program, the court can dismiss the case. Dismissal is allowed if the judge finds it will help keep the defendant's family together and it's in the spouse's best interest.

Sex Offender Registration

A conviction for most sex offenses, including many not discussed in this article, requires the defendant to register as a sex offender. (For a list of offenses requiring registration, see VA Code § 9.1-902.) Though registration is for public safety and is not technically considered punishment, it's sometimes the most serious consequence of a sex crime conviction. The sex offender registry publishes on the internet the person's name, age, photograph, address, work or school address, and a description of the person's convictions. What appears online never completely goes away, and the details of a person's offense, even when committed many years ago, will limit options for employment and housing, and negatively affect the person's reputation. Failing to register or comply with registration rules is either a felony or misdemeanor in Virginia, depending on the circumstances.

Talk to a Lawyer

If you're facing charges of sexual assault or any other sex offense in Virginia, consult with a lawyer right away. It's important to choose a local attorney with several years of criminal defense experience. Local, experienced attorneys will know many of the prosecutors and judges where your case will be heard. They'll know whether any defenses will apply, or whether a favorable plea deal is possible (such as one that avoids a conviction requiring sex offender registration).