What Is Considered a Sex Crime?
State and federal laws define, prohibit, and punish many types of sexual offensesBy Canaan Suitt, J.D. | Last updated on November 28, 2023 Featuring practical insights from contributing attorney N. Trey Pettlon, III
Use these links to jump to different sections:
- Are Sex Crimes Prosecuted at the State or Federal Level?
- Sexual Assault
- Statutory Rape
- Sex Crimes Involving Children
- Indecent Exposure and Public Indecency
- Solicitation and Prostitution
- Sex Trafficking
- Sex Offender Registries
- Find an Experienced Criminal Defense Lawyer
Sex crimes involve illegal sexual activity against another person. As Kansas criminal defense attorney Trey Pettlon says, “Typically, what distinguishes a sex crime [from non-sexual offenses] is that the act is done for the sexual arousal of the offender or the attempted sexual arousal of the alleged victim.”
Sexual activity may be illegal due to:
- A person’s lack of consent to the sexual conduct;
- A person’s lack of capacity to give consent; or
- Coercion or violence.
Federal and state statutes define, prohibit, and punish various sex crimes, which range from misdemeanors to more serious offenses, including first-degree felonies. At both the federal and state levels, penal codes establish:
- Prison sentences; and
- Statute of limitations for bringing criminal charges against an alleged sex offender.
Individuals convicted of a sex crime are considered sex offenders. They are required to register with their state or federal sex offender registry, which can seriously impact their ability to get a job, own a home, or travel freely.
Are Sex Crimes Prosecuted at the State or Federal Level?
Both. Pettlon says the vast majority of sex crimes are prosecuted in state courts. When it comes to federally prosecuted sex offenses, they “generally involve interstate travel.” For example:
- When someone goes across state lines to meet up with a minor
- When there’s possession or dissemination of child sexual abuse material on the internet
- Sex trafficking cases
If the sex crime occurs on federal property, then it will be prosecuted in federal court regardless of the offense. In federal court prosecutions, defendants can also be tried for violations of relevant state sex crime laws.
Sexual assault is an umbrella term referring to offenses involving nonconsensual sexual acts. Most states distinguish between sexual contact and sexual penetration in classifying sexual assault offenses:
- Unwanted sexual contact includes forced kissing, touching someone’s genitals, or touching a woman’s breast without their consent;
- Unwanted sexual penetration includes intercourse, anal sex, or any other form of penetration with a body part or object.
Other states do not have sexual assault as a distinct crime, instead dividing it into separate offenses, including sexual battery, sexual abuse, and rape.
Under Kansas law, for instance, Pettlon says that sexual battery occurs when “a person touches someone in a sexual way—typically their private areas, though it doesn’t have to be.” It can be a gray area to determine whether touching is a sexual battery or a simple battery. For example, “say a person in a sporting event pats somebody else on the rear end. That act may be offensive to the person who is touched, but [the key question is whether] the state will be able to prove beyond a reasonable doubt that the act was done in a sexual way.” Proving the sexual nature of the act has significant consequences, as someone convicted of sexual battery, as opposed to simply battery, will have to register as a sex offender.
The labels for sex crimes matter less than how each state defines them and the penalties attached to them.
Generally, the crime of rape involves any nonconsensual:
- Vaginal sex;
- Anal sex; or
- Other sex acts involving penetration with a body part or object.
An outdated definition of rape confined it to instances when a man forced intercourse on a woman who was not his wife. Most states have updated the definition to make the fact of being married, one’s gender, and use of force irrelevant. These changes mean that spousal rape is no longer excluded by definition and can be prosecuted. It also means that rape is not confined to cases where the perpetrator is male and the victim female or where physical violence is involved.
Rape is typically a felony and is taken very seriously by law enforcement. Penalties can be increased depending on specific circumstances, such as using threats, violence, or restraint, the victim’s age, or taking advantage of one’s authority to coerce someone into sexual acts.
A couple of common defenses to rape include:
- Claiming there was consent;
- Claiming mistaken identity.
Statutory rape refers to sexual relations with individuals under the legal age of consent, who are considered legally incapable of giving their consent to sexual activity.
The age of consent varies by state law but is typically between 16 and 18 years of age. Some state laws provide the defense of honest mistake to statutory rape, which allows the accused perpetrator to argue that they genuinely thought the person was old enough due to various factors. However, other states do not recognize this defense and hold that the perpetrator’s knowledge of the victim’s age is irrelevant.
Sex Crimes Involving Children
In addition to statutory rape, there are several other sex crimes involving minors.
1. Child Molestation
Child molestation refers to sexual acts committed against a child. Like sexual assault, the exact definition of child molestation varies by state law. In general, however, molestation can include:
- Sexual intercourse or penetration;
- Inappropriate touching or contact;
- Using the child to gratify or stimulate oneself sexually;
- Making the child watch sex acts.
Child molestation is a serious sex crime. Many states have mandatory reporting laws, requiring professionals such as social workers, counselors, clergy, and medical practitioners to report child molestation to law enforcement.
2. Child Sexual Abuse Material
Both federal and state laws criminalize the production, distribution, or possession of sexual material involving individuals under 18. Child pornography laws apply to physical materials as well as possession or dissemination on the internet and are designed to protect children from sexual exploitation. The penalties for distributing or possessing child sexual abuse material are severe, including lengthy prison sentences and mandatory sex offender registration.
Possession of child sexual abuse material can be prosecuted at either the state or federal level. Typically, child sexual abuse material has to cross state lines via mail or the internet for federal law enforcement to get involved.
Depending on state law, sexually explicit images of children or minors shared on social media may be considered child sexual abuse material. Factors determining this include who shares the content (the minor or an adult) and how widely the content is distributed.
“Prosecutors have a lot of discretion,” Pettlon says. “They typically aren’t going to charge a 17-year-old with [possessing child sexual abuse material] for having nude photos of his 16-year-old girlfriend unless there are aggravating circumstances, such as sharing the photos with a lot of people.”
Indecent Exposure and Public Indecency
In general, indecent exposure and public indecency laws criminalize displaying one’s genitals or private parts in public. In some states, such as Kansas, public indecency is referred to as “lewd and lascivious behavior.” Whatever its label, “the money question in this type of case is whether the act was done for sexual arousal,” says Pettlon. For example, urinating behind a bush and thinking that no one is present would not count, whereas urinating in the presence of others for sexual arousal would.
While exposing one’s breasts in public can be included in indecent exposure laws, many states provide exceptions for breastfeeding individuals. Some states also have defenses related to nudity in an artistic performance.
“Lewd conduct” is another category in some states that goes beyond mere nudity to target specific sexual acts in public, such as intercourse. Penalties for indecent exposure can range from a misdemeanor (involving jail time or a fine) to a felony (involving a longer prison sentence) depending on the circumstances. A conviction for public indecency can also carry the potentially lifelong stigma of being on a sex offender registry.
Solicitation and Prostitution
Generally speaking, prostitution is the exchange of sexual acts for money or some other form of compensation. Every state except some regions of Nevada criminalizes prostitution. Even in Nevada, the state strictly regulates the industry. The federal government also prohibits prostitution near naval or military bases.
Although state laws vary, they generally criminalize:
- The act of prostitution;
- Soliciting or arranging for prostitution; and
- Operating a facility for prostitution.
In most states, the mere offer or exchange of sexual services for compensation counts as prostitution, regardless of whether the sexual activity occurs.
Solicitation is a separate crime that is often paired and prosecuted with prostitution. Solicitation is requesting or encouraging someone else to engage in criminal activity with the intent to assist in committing the crime.
State laws vary on whether the request has to be accepted or if making the request with intent to engage in criminal activity is sufficient for committing solicitation. The critical thing to realize about the crime of solicitation is that it doesn’t matter if the individuals actually engage in the proposed criminal activity. The act of solicitation is a separate crime by itself. So, someone who solicits prostitution without engaging in the sexual act may not be prosecuted for prostitution, but they can be prosecuted for solicitation.
The penalties for prostitution and solicitation can range from fines and jail time to extended prison sentences depending on repeat offenses or other aggravating circumstances.
States typically handle the prosecution of prostitution. However, the federal government will take the case if children or sex trafficking schemes are involved. Several federal criminal and immigration laws target human trafficking, including sex trafficking.
Sex Offender Registries
Beyond paying a fine, serving a prison sentence, or having a misdemeanor or felony offense on their criminal record, a convicted sex offender may also be required by state law to join a sex offender registry. Sex offenders typically have to provide their name or aliases, current residence address, occupation, and offenses. Some states might have other requirements as well.
The federal Sex Offender Registration and Notification Act (SONRA) requires states to maintain registry systems for monitoring and tracking sex offenders once they are released into the community. SORNA enables state sex offender registries to link up for state law enforcement to collaborate. The Department of Justice (DOJ) maintains a National Sex Offender Public Website (NSOPW) where individuals can search sex offender registries nationally.
State laws and SORNA make failure to register as a sex offender a separate crime. Failing to update one’s information in the registry when taking a new job or moving to a new residence is also a crime. Depending on the law and specific violation, penalties for violating sex offender registry laws can include fines and prison time.
Find an Experienced Criminal Defense Lawyer
If you have been accused of a sex crime, it’s imperative to seek legal advice from a criminal defense attorney as soon as possible. Many sex crime attorneys provide free consultations to learn more about your case, discuss options, and formulate a defense strategy. Visit the Super Lawyers directory to find an experienced criminal defense lawyer in your area. To learn more about this area of law, see our overview of criminal law and related content.
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