Sexual assault generally means any crime where the offender has subjected the victim to sexual contact or touching that is offensive and unwanted. Sexual assault crimes can range groping to assault and battery, to rape. All states and the federal government prohibits sexual assault, but the precise definitions of sexual assault will vary somewhat by state. Generally, it is the act of touching another person in an unwanted manner. It is a serious crime that carries heavy penalties at both the state and federal levels.
Sexual assault can be prosecuted by either state or federal jurisdictions, or both.
Sexual Assault Laws
Sexual assault and rape are covered under 10 U.S. Code 920, Art. 120. Rape and sexual assault generally. The statute states that sexual assault is defined as a person who commits a sexual act upon another person by:
- Threatening or placing the other person in fear
- Causing bodily harm to the person
- Making a fraudulent representation that the sexual act is for a professional purpose
- Induces a belief by concealment, artifice or pretense that the person is actually another person
The statute also defines sexual assault as committing a sexual act upon another party when the person knows or should know that the other person is asleep or unconscious. Federal law also states sexual assault is committing a sex act upon someone when the person is unable to consent due to drug or alcohol impairment, or due to any mental disease or defect.
Sexual Assault Crimes and Charges
According to the Stop Violence Against Women website, the definition of a sexual assault crime is as follows:
- An act of physical, sexual violence against the person, male or female
- The act occurs without the consent of the victim; the victim who is underage or is mentally incapacitated may not be legally able to provide consent
- The act is a violation of the sexual autonomy and bodily integrity of the person
The key element of a sexual assault charge is the concept of consent. If the person does not give, or is legally unable to give, consent to engaging in sexual contact and sexual activity, it is a form of sexual assault. Under federal law, the age of consent is 16; it ranges from 16-18 in the various states.
Sexual Assault Punishment
After the jury has found you guilty of sexual assault, the case typically goes to the judge for sentencing. Judges will rely on a number of factors to determine an appropriate sentence. First, the criminal statutes for the state or federal jurisdiction will set what the range of punishments are for sexual assault. This will normally feature a maximum and minimum time in prison, in addition to other fines and penalties.
Judges will look at mitigating and aggravating factors when they are deciding upon the length of the sentence. Some of the aggravating factors that are considered are criminal history and severity of the sexual assault crime.
For a federal sexual assault conviction, the federal judge is directed to review a number of factors when determining punishment. First, the judge will consider the offender’s previous criminal history, and then whether he or she has accepted responsibility for their crime. Federal law states that the maximum penalty for sexual assault is 20 years in prison, as well as fines. Also, federal law states that those who are convicted of this crime have to compensate victims for expenses that are related to the crime. This may include medical costs, psychologist costs, physical therapy, attorneys fees, and other associated expenses.
States have varying punishments in place for sexual assault convictions. In California, you can get a sentence of 24, 36, or 48 months in prison and a fine of up to $10,000. This type of criminal sentence is referred to as determinate. This is because it results in a set term in prison.
On the other hand, in New York state, sexual assault is a class D felony. The judge has discretion to set the prison sentence, but state law requires the judge to give a sentence within a range. This type of sentence is indeterminate, because the judge does not set a precise number of years. Instead, the judge will determine a range with a minimum and maximum number of years. The convicted person may serve the maximum or minimum number of years, depending upon how they behave in prison. The minimum number of years in prison in New York state for a sexual assault conviction is one to two years, up to a maximum of seven years.
Sexual Offender Registration
Another serious punishment for a sexual assault charge can be the requirement to register as a sex offender in your city or state. All US states have a sex offender and registration program. These statutes require that the person who is convicted of a sex offense to register with the offender registry in their state. This requires you to have your name, address and information on the crime in a public database.
Most sex offenders also have to undergo treatment in jail or prison, or as a condition of probation.
Proving Sexual Assault
Generally, sexual assault is sexual touching that is involuntary, and occurs through the aggressor’s use of force, coercion or the incapacitation of the victim. Under federal law, the victim is considered incapacitated if he or she lacked the mental ability to understand the sexual acts, or if the victim was not physically capable of indicating that they were unwilling to participate in the acts.
It is common for sexual assault charges to stem from using date rape drugs, other drugs, and alcohol. All of these can make it impossible for the person to legally consent to sexual activity.
Modern sexual assault laws speak to nonconsensual sexual contact that happens between any sex and between people of all ages. For instance, most state sexual assault laws deal with involuntary sexual contact between two males, two females, two children, etc. They do not cover just contact between a man and a woman.
Most states have made the term ‘sexual assault’ an umbrella term for various other sexual crimes, including sexual battery and rape. Some states have statutes that distinguish between crimes that include penetration and crimes that involve involuntary or coerced touching. In those cases, a crime involving penetration may be a first degree sexual assault charge, while involuntary touching may be a lower level sexual assault charge.
The federal statute on sexual assault is similar to the above laws. It outlaws any sexual act that happens because of the actor threatening or putting the victim in fear. It also makes it illegal for sexual acts to occur when the victim in unaware or incapacitated.
Most states and the federal government have extended modern sexual assault laws to also cover spousal sexual assault. States usually do this in three ways. First, they may remove the exemption for spousal assault that previously existed in many sexual assault statutes. Second, they may remove marriage as a possible defense to sexual assault charges. Third, they may create a separate law that prohibits the act of sexual assault on a spouse.
Sexual Assault Defenses
There are several possible defenses against a federal or state sexual assault charge. Defendants in most criminal cases will profess that they are innocent, and that is common in a sexual assault case, too. However, sexual assault defendants may concede that they performed the acts in question but argue that the victim consented to the behavior. Lastly, defendants also may admit that they did the crime, but argue that they were mentally incapacitated or insane. Below is more information regarding the common defenses:
In an innocence defense, the person may argue that they could not have committed sexual assault because they were in a different place when the alleged crime happened. To make an effective innocence defense, the person has to provide support for the alibi with evidence that proves that they were not with the person when the crime happened.
The defendant also may claim that he has been misidentified by the defendant. If it is available, DNA evidence may be able to establish with accuracy whether the defendant was at the scene of the alleged sexual assault.
The most common sexual assault defense is to admit that the event occurred but to argue that the victim gave consent. One of the most important elements of proving sexual assault is to show that the behavior occurred without the victim’s consent and against his or her will. So, if the defendant can show that the victim actually gave consent, it can provide a solid defense against a charge of sexual assault.
Proving consent can be challenging for the defendant. Defendants often do not have direct proof of consent. They may use the previous sexual history of the victim to show that he or she gave consent for the alleged sexual assault. It is common for this type of strategy to backfire and to put the defendant in a harshly negative light.
In many cases, it is impossible to prove consent; also, if the victim is a minor or is incapacitated in any way, the person cannot legally give consent anyway.
State and federal law will differ on the amount of awareness that the defendant has to show regarding the inability of the alleged victim to consent. If the defendant is arguing that they thought that the victim was older than the age of consent, different states would view that claim differently.
Some states feature a strict liability standard, meaning that the defendant cannot argue that they did not know that the victim was not able to consent. In other states, the defendant may be able to make a mistake in this regard if the person acted in a less than negligent manner.
Note that at the federal level, the age of consent to engage in sexual activity is 16. However, the nationwide age of consent for any type of visual depiction (pornography) is 18. Different states have different ages of consent ranging from 16-18. No state has an age of consent under the age of 16.
You also may claim that you had a mental defect at the time of the alleged crime and should not be liable for your actions. Different states will have different laws regarding an insanity or mental incapacity defense. Most states however will treat the offender in a more lenient fashion if you can show that your mental defect prevented you from understanding the criminality of your actions.
Sexual Assault Sentencing Guidelines
The US federal sentencing guidelines lay out what the minimum and maximum punishments are for being convicted of sexual assault under federal law. Federal law states that the maximum penalty for sexual assault is 20 years in prison, as well as fines, and the possibility of having to compensate victims for costs associated with the crime (medical costs and legal fees, for example).
The federal sentencing guidelines primarily consider the conduct that is associated with the offense; there are 43 offense levels in the sentencing guidelines. Next to be considered is the criminal history category of the offender. There are six criminal history categories. The offender is assigned a number of points based upon his number of prior offenses and his Criminal History Category from 1-6.
There can be a two or three level decrease in the criminal history category if the offender accepts responsibility for his actions. However, this reduction is at the discretion of the judge and will not apply if the person shows behavior, such as continued criminal activity that shows he does not accept responsibility.
His sentence will depend upon these factors for sexual assault, with a maximum penalty of 20 years per offense.
Sexual Assault Statute of Limitations
Under federal law 10 U.S. Code 843 – Art. 43, there is no statute of limitations at the federal level for a person charged with murder, rape, sexual assault, rape or sexual assault of a child, or any other offense that can be punished by death.
The length of the statute of limitations on a sexual assault charge depends upon the state. At this time, there are eight states that do not have any statute of limitations for prosecuting felony sexual assault. Also, some states, such as South Carolina and Wyoming, have no statute of limitations for any type of criminal prosecution.
Some states do have a DNA exception for their statute of limitations.
Sexual Assault Laws by State
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming
- US Code. (n.d.). Retrieved from https://www.law.cornell.edu/uscode/text/10/920
- Sexual Assault Defenses. (n.d.). Retrieved from http://criminal.findlaw.com/criminal-charges/sexual-assault-defenses.html
- Sexual Assault Overview. (n.d.). Retrieved from http://criminal.findlaw.com/criminal-charges/sexual-assault-overview.html
- Definition of Criminal Sexual Assault. (n.d.). Retrieved from http://www.stopvaw.org/definition_of_criminal_sexual_assault_3