Sexual Assault Laws
Non-consensual sexual conduct is often called "sexual assault," although states use a wide range of terms to describe these acts. A conviction may result in prison time and a requirement to register as a sex offender. This can have a lasting impact on personal and professional prospects. Rather than trying to resolve the situation by talking to the police directly, someone suspected of sexual assault should consult a lawyer as soon as possible.
What Is Sexual Assault?
Sexual assault can refer to many forms of non-consensual sexual conduct, including both sex and sexual touching.
Elements of Sexual Assault
In general, a prosecutor needs to prove that the defendant engaged in certain sexual acts without the consent of the alleged victim. Laws may list circumstances in which consent is absent. These tend to include situations involving force or coercion and situations in which a person cannot legally consent, such as when they are unconscious, incapacitated, or suffering from a mental illness. Some laws explicitly provide that non-consent exists whenever a person indicates a lack of consent through their words or conduct.
States tend to prohibit two broad categories of conduct: non-consensual sex and non-consensual sexual touching. Different terms may describe each category. For example, Arizona defines non-consensual sex as “sexual assault” and non-consensual touching as “sexual abuse.” Other states may assign different degrees of the same crime to each category. Nebraska defines non-consensual sex as first-degree sexual assault and non-consensual touching as second-degree or third-degree sexual assault.
Examples of Sexual Assault
The hypothetical narratives below may be disturbing or upsetting to some readers.
Phil sees Veronica passed out at a bar. He takes her home and has sex with her while she is still unconscious from the alcohol. This would be sexual assault because she could not consent to the conduct.
After dinner with his girlfriend, Patrick tries to kiss her and grope her crotch. When she says no, Patrick pushes her against a wall and gropes her anyway. This likely would be sexual assault. (The fact that she previously consented to sexual conduct with him does not affect her lack of consent on this occasion.)
Offenses Related to Sexual Assault
Certain conduct that fits within the broad scope of sexual assault also might be described as one of the following crimes:
- Rape: sex without consent
- Statutory rape: sex with a person under the age of consent
- Sexual misconduct by authority figure: certain situations when the defendant had authority over the alleged victim or a relationship of trust with them
As noted above, different states use different terms for the same or similar conduct. A criminal attorney can explain the nuances of how the law in your state defines a particular crime.
Defenses to Sexual Assault
One common defense to a sexual assault charge is that the alleged victim consented. This can come down to whether that person or the defendant is more credible. Sometimes a defendant may challenge the credibility of an accuser or another witness by showing that they had a motive to lie or get the defendant in trouble. In rare cases, the accuser might even have fabricated the entire incident.
A defendant also might present an alibi, showing that they could not have committed the crime because they were somewhere else when it happened. Or they might argue that the accuser misidentified them, especially if the accuser and the defendant were strangers and the incident occurred at night or in another situation involving poor visibility.
As with any criminal case, police errors or misconduct might undermine a charge. For example, the police might have gathered evidence in a way that violated the defendant’s constitutional rights. This type of violation could result in the suppression of the evidence at issue, possibly preventing the prosecution from proving the charge.
Penalties for Sexual Assault
Non-consensual sex tends to be punished much more harshly than non-consensual touching. States may charge non-consensual touching as a low-level felony or even a misdemeanor, while charging non-consensual sex as a serious felony. For example, Arizona imposes 5.25-14 years (7 years presumptive) for intercourse and 0.75-2 years (1.5 years presumptive) for contact. Illinois imposes 4-15 years for penetration and 1-3 years for other conduct. Texas imposes 2-20 years for penetration and no more than one year for touching.
Penalties may increase when certain aggravating factors are present. These may include a particularly vulnerable victim, the involvement of a weapon, or injuries caused to the victim. For example, aggravated sexual assault may be charged in New Jersey when the defendant threatened to use a weapon, the alleged victim suffered serious injuries, or the alleged victim was physically or mentally incapacitated, among other situations.
