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.
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:
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).
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.
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.
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).
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