Is Sexual Assault a Felony?
Sex crimes are some of the most serious violent crimes, often resulting in felony charges, the need to register as a sex offender, and long-lasting consequences. It’s also nearly impossible in most states to ever remove the charges from a criminal record, and being on a sex registry is also pretty permanent. This may be one of the more difficult crimes to prosecute, as sometimes there isn’t a lot of evidence, and it also includes a statute of limitations. It’s important to understand what exactly is consent, how to receive consent, and the consequences that come from violating that.
What is Sexual Assault?
This can vary based on state terminology, but broadly speaking, sexual assault is any type of sexual contact that doesn’t have the consent of either party or is in public. That’s easy to understand, but some struggle more with the concept of consent, as well as when an individual is capable of of providing consent. Consent is essential at all points of a sexual interaction, meaning that just because someone consented to one act, doesn’t mean it’s okay to continue with others without permission. Sexual offenders often include someone the victim knows, which can include friends, spouses, sexual partners, employers, others of authority, and more. Sexual assault can be separated into a few categories.
This is probably the most widely recognized form of sexual assault. This involves forced penetration, whether is be vaginally, orally, or anally. Another word that will often be used when discussing this term is sodomy, which is legally defined as oral or anal sex. Any of these forms of penetration are considered rape. It can also include having sex with someone and leading them to believe that the offender is somebody else that the victim has consented to, or even removing a condom without permission – often called “stealthing.” Another term rape may be known by is criminal sexual penetration.
This form generally doesn’t involve penetration, but rather sexual abuse is where someone is touched sexually in intimate places without their permission, is forced to touch the offender’s body, forced to masturbate or to commit any sexual act that they are not willingly completing. This can include physical or emotional coercion, as well as not informing a partner of a known sexually transmitted disease. Sexual battery can pretty much include any type of sexual touch used for the pleasure or gratification of the offender.
Aggravated Sexual Assault
This category is more about the circumstances involving a sexual act, whether it was consensual or not. It’s more serious than sexual assault, as it involves even more damaging effects. Scenarios where sexual assault is considered aggravated include:
- Use of a weapon – whether it’s simply threatened or actually used
- Serious physical injury to the victim
- An attempt to kill the victim
- There’s more than one assailant
- A rape drug is used
- Victim cannot give consent – intoxicated, mentally incapacitated, elderly, disabled, or other vulnerabilities that lend to this
- Offender is a step-parent or guardian
- Assailant has some form of authority over the victim
- Assault occurs in the process of another felony – kidnapping, robbery, homicide, burglary, arson, escape from a penitentiary
- Age of the victim
Child Sexual Abuse
Child sexual abuse includes any type of sexual encounter with a minor. This requires less physical contact than other forms, as a child can never give consent and can be taken advantage of, making this a very serious felony. The age that a child is no longer considered a minor varies from state to state, so it’s important to be aware of these laws. It can include:
- Exposing oneself
- Masturbation or forced masturbation of the victim
- Inappropriate sexual digital activity
- Making, owning, or distributing porn involving a minor(s)
- Sex of any kind
- Sex trafficking
More often than not, the offender is going to be someone who knows the family and/or the child – in fact, 93% of child sexual abuse victims know their assailant. This sometimes makes it harder to catch the abuse, as abusers will often coerce the victim into not telling anyone about what is occurring. It is also difficult because, often times, the child will not even know that something wrong is happening. This is why education about where a child should and should be allowed to be touched and by who is extremely important at this age to help prevent child sexual abuse.
This one is pretty much what it sounds like – exposing genitals in a public place. This includes flashing, urinating, and public sex. It usually is going to be a misdemeanor, not a felony, however. This changes if the exposure is to a minor or if it is a second offense. It typically must be proven that there was intentional and reckless exposure by the defendant. However, these still can come with being registered on the sex offender list for the state, so these should still be taken very seriously.
This isn’t likely to result in a felony; however, it is important to be aware of what it entails. Sexual harassment is unwanted sexual comments, touching, or sexual advances in the workplace or learning environment. This often includes an employer, manager, teacher, or other person in authority using that power to influence someone and feel as if they must just tolerate the sexual advances, or even participate, or something negative will occur. It can also be jokes or other comments among coworkers or peers that lead someone to feel as if they are being violated. This can result in the loss of employment in work places.
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The severity of these types of sexual assault are divided into degrees, much like how the severity of felonies themselves are organized. This will determine whether the crime is considered a felony or misdemeanor and how severe the punishment may be
1st Degree – This list starts at a Class B felony, and it includes sexual assault without consent or force using a weapon, as well as there being multiple assailants or involving a minor under the age of 13. The offender can receive up to 60 years in prison.
2nd Degree – This Class C felony involves sexual assault that leads to an injury – whether it be physical, mental, an illness, or impairment of a sexual or reproductive organ, contact with someone who could not give consent, or situations where the offender is in a position of authority, leading to a sexual assault.
3rd Degree – The next degree jumps down to a Class G felony and is sexual conduct with an unwanted ejaculation. This penalty is looking at a fine up to $25,000 and ten years in prison.
4th Degree – 4th Degree is a misdemeanor, not a felony, and includes sexual harassment, stalking, or lewd behavior, as well as sex with an individual 16 or 17 years old (depending on the state). This fine can’t exceed $10,000 and can include up to nine months in jail.
The definition of consent is one that is difficult for some to define, but it is completely necessary to be aware of, especially when it comes to knowing what is legal and what can lead to a felony charge. When it comes to legal terms, there are three important ways that each state determines what is and isn’t consent.
Affirmative consent – This involves clear words or actions that express the individual agreed to the sexual acts.
Freely given consent – Consent must be given of their own free will, meaning that there can be no threat or coercion, whether physical or emotional.
Capacity to consent – There are some individuals who are not able to give consent, namely those who are intoxicated from alcohol or drugs, minors, individuals with mental impairments or developmental disabilities, physical disability (that makes them helpless from resisting), vulnerable individuals that feel they cannot deny consent, someone unconscious, or vulnerable adults (elderly or ill person).
RAINN provides a database to access specific state laws here.
Proving Sexual Assault
Once a victim reports an incident of sexual assault, the state decides if they want to press charges, usually depending on the victim’s desires. If there doesn’t seem to be enough evidence, then they may not move further, evident in the fact that only 13 out of 1,000 instances of rape are pursued, and only 7 result in felony convictions.
If the victim agrees, they will testify in court, and there are several laws in place to govern this, such as the rape shield law that disallows any questions about the victim’s prior sexual history, and others also help protect the victim’s personal information.
Unlike most criminal cases, the burden of proof is on the prosecutor, meaning that the defendant doesn’t have to prove their innocence. Instead, the defense simply has to raise some shadow of a doubt, as the prosecutor must prove that the crime occurred without reasonable doubt.
Some ways that this can be proved are rape kits, phone records, recordings, DNA, other incidents – even from other victims, and evidence gathered from search warrants. However, there often is not any physical evidence of this crime, making it difficult to prove.
Defenses may include alleging that the crime didn’t happen, that it was impossible for the perpetrator to commit the act, or that consent did in fact occur.
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Like most other crimes, the punishment for sexual assault cases varies greatly depending on the circumstances. These may be what determines what degree the conviction will be, which greatly affects the consequences. Depending on the amount of physical and emotional damage done in a rape, prison sentences can range from a year to life in prison. State laws will also determine whether or not there will a minimum prison sentence before being released early or even no chance of being released on probation or parole.
Sexual battery and lesser offenses without penetration will come with slightly less serious convictions, meaning less time served. However, if there are injuries or weapons used, these may result in separate charges and more penalties.
If the conviction results in a misdemeanor, they may only be required to serve a year in jail with no time in prison and perhaps a fine.
The other major penalty involved is registration on the sex offender registry. This is available to the public, and is often used to be aware of where sex offenders live in their state. Cases with penetration, sexual contact, or involving children are almost always required to register, but some lesser crimes may not. The time on the registry may also differ by the circumstances as well. Entries will have the offender’s name, address, and information about the crime committed.
There will also be other consequences, such as being fired from a place of work, expelled from school or university, or not allowed to live in certain apartment complexes. It may also come with not being allowed in certain places that children frequent and required counseling.
Statute of Limitations
In some states, there is a certain allotted amount of time allowed before it is not possible to press charges any longer. Any attempts to persecute must be made within this time frame, and the time is determined differently by each state. Some factors states consider when making these time frames include:
- The severity of a crime
- Whether the clock starts when the offense happened or when the victim discovers or realizes what happened (often more applicable for child abuse cases)
- Whether the individual was able to press charges depending on the relationship between the two and whether safety would be threatened by following through too early
- If there are other aspects of the crime that take time to consider
This is put into place to discourage unreliable testimony from old memories being used to press charges. However, as evidence becomes more and more long lasting, states are changing rules to accommodate that. RAINN provides a state by state guide for statutes of limitations.
Sexual Assault Statistics
There is a lot of data on sexual assault; however, it’s difficult to know just how accurate they are, as sexual assault is one of the most unreported crimes. There is a stigma and fear involved that prevents many victims from coming forward. However, it may happen more often than you’re aware of.
- The rate of sexual assault has actually decreased 63% from 1993.
- An American is sexually assaulted every 73 seconds, making 33,648 victims above the age of 12 each year.
- 1 out of 6 women and 1 out of 33 men are victims of sexual assault.
- CPS reports that there may be 63,000 children every year that are the victims of child sexual abuse, most being aged 12-17.
- 55% of sexual assaults happen near the victim’s home, with 48% happening when sleeping or performing an activity at home.
- Ages 12-34 are the most at risk of being victims of sexual assault.
- Transgender students and Native Americans are particularly at risk.
- PTSD occurs in 94% of female rape victims for at least two weeks, leading to severe changes in behavior, heavier drug use, distanced relationships, and more major consequences.
- 8 out of 10 rapes are by someone the victim knows, whether it be an acquaintance, current or former partner, or a relative.
- Half of perpetrators are over the age of 30.
- Most offenders are serial criminals, with almost 40% being repeat offenders.
- 60% of those released for a sex crime are arrested for a new crime within 5 years, and more than half already have one conviction, usually 2-4 instances of sexual assault.
- 11% of sexual assaults involve a weapon.
- Out of 1,000 sexual assaults, 995 will not be charged, making them less likely to go to prison for their crime than other perpetrators.
- Only 230 of these 1,000 assaults will even be reported, usually out of fear for retaliation.
- College women aged 18-24 are 3x more likely to be a victim of sexual assault.
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Crimes of a sexual nature are some of the most serious, and they rightly come with some of the most serious consequences. These can vary greatly by the state legislation, type of crime committed, and circumstances surrounding it, especially considering the age and capacity to consent of the victim. It’s sorted into four different degrees, ranging from the possibility of life in prison to a misdemeanor with a little jail time and a fine. Prosecutors must prove without reasonable doubt that the crime was committed, alternate to the general responsibility of the defendant to prove their innocence. The statute of limitations is another aspect that varies by state, but is also important in the process of charges being pressed. Penalties can include severe jail time, fines, sex offender registration, loss of job, and restrictions placed on life.
If you or someone you know is a victim of sexual assault, call the National Sexual Assault Hotline at 1-800-656-4673.