Every state has a different definition of rape, sexual assault, and sexual battery. Classifications such as criminal sexual penetration, and criminal sexual contact are also used to differentiate the severity of the crime based on the circumstances, and therefore the penalty given to the alleged perpetrator.
In some states sexual battery can refer to the more serious offense of rape or criminal sexual penetration therefore it is important to seek advice of a lawyer who is a specialist of sexual assault or battery in your state. However for the purpose of this article we will use the following definitions:
Rape, criminal sexual penetration, or sexual assault are defined as sexual penetration either vaginally, anally, or orally without consent. This definition applies to all genders in heterosexual or homosexual offenses. It applies to oral sex as well as penetration with penis, other body part, or an object where the sexual contact occurs without consent.
Sexual battery or criminal sexual contact refers to non-penetrative sexual contact that happens without consent. This refers to physical contact of a sexual nature without consent. These terms encompass the touching of another person’s intimate body part or the forcing of another to touch the offender’s intimate body parts without consent. Depending on the state where the crimes are committed this could only apply to body parts that are unclothed or it could also include clothed parts of the body.
The main component of sex crimes is a lack of consent; this is the crux of when sexual contact becomes criminal and why even in a marriage a sex crime can be committed. There are two determining factors in a lack of consent: either sexual contact is forced against the other person’s will, or the other person is deemed as incapable of giving consent.
Someone can be deemed as incapable of giving consent if they are:
- Minors under a certain age (fourteen, fifteen, or sixteen depending on the state). Regardless of their physical or mental ability to give consent, and their ability to understand the act, minors are considered as incapable of giving consent.
- Someone who is disabled developmentally.
- Someone who is mentally ill.
- Someone who is incapacitated. This can refer to someone who is drunk, drugged, unconscious, or otherwise physically incapable of giving or not giving consent.
Sexual Contact With A Minor
While in most cases sexual contact with a minor is criminalized due to them being considered as incapable as giving consent. However in some states it is only criminal if there is a certain age gap between the offender and the other person. Therefore a couple where the boyfriend is eighteen years old and the girlfriend is fifteen or sixteen years old can have sexual contact without the boyfriend’s actions being seen as criminal. However if the age gap is more than the state law allows then any sexual contact would be seen as criminal. This exception is only applied to heterosexual relationships in many states.
Sexual Contact With An Authority Figure
In many states sexual contact between a person in authority and trust, and a person in their care is seen as criminal. The reason being, the authority held by the offender is seen to reduce or negate the person’s ability to consent or refuse for fear of negative repercussions. This applies to teachers and coaches with their students, to police officers and people in their custody, or prison guards and their prisoners. These are of course only a few examples, this law can be applied to workplaces, religious institutions, or even families.
Sexual contact between a mental health care provider and their patients also falls under this rule as the nature of the relationship means the patient isn’t able to give voluntary consent.
Defenses For Those Charged With Sexual Battery
The defense of someone charged with criminal sexual contact or sexual battery generally boils down to three main factors:
- Can it be proved that it was the defendant who committed the crime?
- Claim the sexual contact was consensual. In these cases what constitutes consent is often the pivotal factor. Is the word no enough to show a lack of consent or is a more vigorous objection required such as screaming or fighting off the offender?
- Insanity plea: the defense will argue that due to the accused’s mental state they were unable to control their behavior or interpret other people’s reactions. It also means the defendant had no capacity to plan out a crime or realize that their actions were unlawful. In some cases it could even be argued that the defendant wasn’t even aware of their actions.
Imprisonment As A Penalty
The penalties for sex crimes vary from state to state and while rape and criminal sexual penetration are usually seen as the more serious of the sex crimes, thus attracting the highest penalties, in some states sexual battery is considered a felony and requires the offender to be imprisoned.
Depending on the circumstances and the sentencing guidelines for the state, sex crimes can carry up to seven years in prison. In some states there will be a requirement for a minimum prison sentence or a requirement of a prison sentence without early parole or probation. However in other states the length of the sentence and decision to let the offender serve any or all of the sentence on probation is at the discretion of the judge.
Criminal sexual contact that involves a weapon, is committed by more than one person, or results in injury is considered a felony and can attract as much of a prison sentence as rape. In some states, criminal sexual contact that is committed by force or coercion, and not a weapon, is considered a misdemeanor and carries up to a year sentence, all of which can be served on probation at the judge’s discretion.
Treatment Alongside Penalty
In most states someone convicted of a sex crime will be required to undergo treatment, either while they are in jail or as a condition of their probation.
Sex Offender Registry
A sex offender registry and notification program is in place in every state in the U.S and any person convicted of a sex crime is required to register with the program in the state in which they reside. The laws differ in each state as to which sex crimes are required to be registered with the sex offender registry.
The registry will have on file the name, address, and information about the sex crime but not all this information will be available to the public. Each registry will have a website that the public can use to search information but the results available will differ in each state.
Brad Nakase, Attorney
Free Consultation: 619-550-1321
There is no money upfront.
$0 Unless We Win
No Fee – Unless We Win
98% Success Rate
98% of clients’ cases won.
I’ve worked at a prestigious international law firm, Bremer Whyte et. al., serving major insurance companies by defending insurance companies and their insureds who were sued for millions of dollars.
“In both cases, he combined skills and passion to help these clients to maintain their self sufficiency and dignity.” SDLVP
My success is measured in the real differences made to my clients’ quality of life. I focus on achieving the most exceptional and fairest compensation for my clients.