Differences Between Rape, Sexual Battery, and Sexual Assault

The legal definitions of rape, sexual assault, and sexual battery vary from state to state.

By , Attorney

Each state defines and penalizes sex crimes differently. Depending on where you live, your state's laws may refer to rape, sexual assault, sexual battery, or other terms, such as sexual abuse, unlawful sexual conduct, or criminal sexual conduct. Many of these terms are referred to interchangeably but have specific legal definitions under state law.

Most states' laws distinguish sex crimes by two main elements—crimes involving sexual penetration and those involving sexual contact or touching. Regardless of the name of the crime, it's how the state's law defines the crime that matters. So while one state might define "sexual battery" to mean nonconsensual sexual penetration or intercourse, another state might limit "sexual battery" to only acts of nonconsensual sexual contact or touching.

For purposes of this article, we'll review the most commonly used terms for sex crimes in state law—rape, sexual assault, and sexual battery—and how they are typically defined. But your state may use different terms and define the crimes differently. Consult your state law or an attorney to determine how sex crimes are defined and penalized in your state.

What Does Rape Mean? How Is Rape Punished?

The crime of rape typically 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.

Rape is almost always a felony. Penalties differ based on the circumstances of the crime, the vulnerability or age of the victim, and whether a victim suffered bodily harm. For instance, a state might classify rape committed against a child younger than 13 or rape resulting in serious bodily harm as first-degree rape or aggravated rape. Other circumstances that may increase the penalties for rape include:

  • threatening to harm or kill a victim
  • forcefully restraining victim
  • drugging a victim or engaging in sexual penetration with an unconscious victim, or
  • using a position of authority (like a doctor or teacher) to induce someone into engaging in sexual penetration.

For aggravated or first-degree rape, penalties can go as high as a 30- or 40-year prison sentence or a life sentence. A state might impose lower-level felony penalties (such as a five- or ten-year sentence) when rape doesn't involve physical harm or other aggravating circumstances.

Several states have moved away from using the term "rape" in criminal statutes. In such cases, the state might now use "sexual assault," "criminal sexual penetration," or another term.

What Is Sexual Battery? How Is Sexual Battery Punished?

Sexual battery often refers to nonconsensual sexual contact or touching of another's intimate parts (clothed or unclothed) without consent or against the victim's will. Some state laws require that the defendant commit the act for the purpose of sexual arousal or gratification or to abuse or humiliate the victim.

Examples of sexual battery include:

  • 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.

Acts of sexual battery may be penalized as misdemeanors or felonies. Felony penalties might apply if the defendant physically restrains the victim, commits the battery against a child or vulnerable victim, or uses fraud to accomplish the crime (such as a therapist saying the contact is medically necessary). Misdemeanors usually carry penalties of up to a year in jail. A felony sexual battery is often less serious than felony rape but can still carry significant prison time. For instance, in Tennessee, aggravated sexual battery (involving sexual contact) is a class B felony punishable by eight to 30 years in prison. (Tenn. Code § 39-13-504.)

States that don't use the term "sexual battery" might define such conduct as "unlawful sexual contact," "criminal sexual conduct," or "sexual abuse."

What Is Sexual Assault? How Is Sexual Assault Punished?

Sexual assault has become somewhat of an umbrella term that covers both aspects of rape (penetration) and sexual battery (contact).

Several states that moved away from the term rape replaced it with sexual assault. But, in some states, you'll find degrees of sexual assault crimes (such as fourth- or fifth-degrees) that include acts related to sexual battery (contact) as well.

The penalties will depend on what conduct is covered under the definition of "sexual assault." As noted above, sexual assault involving sexual penetration almost always falls under felony classifications, whereas sexual contact can range from a misdemeanor to a felony.

What Is Consent?

No matter what the crime is called or how it's defined, a key legal element of any sex crime is consent. Every state has its own definition of consent, but generally, consent must be affirmative and freely given by an individual who has the capacity to consent. All three criteria need to be present for valid consent.

Affirmative consent gained through fraud, threats, coercion, or force hasn't been freely given. For instance, a person's consent isn't voluntary if the offender threatened the victim with bodily harm or if a health professional fraudulently represented that certain sexual contact is therapeutic.

Capacity to consent can refer to a person's legal, physical, or mental capacity to consent. For example, most (if not all) state laws provide that children under a certain age (such as 12 or 13) cannot legally consent. A person might also lack the capacity to consent if they suffer from a physical or mental disability or impairment or are unconscious.

The Importance of Legal Representation

If you've been accused of or charged with any sex crime, contact a criminal defense attorney. A lawyer can help guide you through the criminal justice process, protect your rights, and zealously defend your case. Having a conviction for a sex crime can carry long-lasting repercussions that go beyond incarceration and fines, such as sex offender registration requirements and sex offender treatment. A conviction can also make it difficult to obtain a job or housing, and having a sex crime conviction can disqualify you from many professions.

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