What Is Considered a Sex Crime?
There are different kinds of sex offenses and penaltiesBy Canaan Suitt, J.D. | Last updated on July 12, 2022
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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.”
The sexual activity could be illegal due to:
- A person’s lack of consent to sexual conduct
- A person’s lack of capacity to give consent
- Coercion or violence
Federal and state statutes define, prohibit, and punish various sex crimes. Title 18 of the United State Code is the main criminal code of the U.S. federal government. Chapters 109-110 cover sex crimes specifically. Each state also has its own penal code.
At both the federal and state level, penal codes:
- Set prison sentences for offenses
- Set a time limit (called the statute of limitations) for bringing criminal charges against an alleged sex offender
Sex crimes range from misdemeanors to more serious offenses, including first-degree felonies.
Individuals convicted of a sex crime are considered sex offenders. They may be required to register with their state or federal sex offender registry. Being on such a registry can seriously impact one’s ability to get a job, own a home, or move freely in the future. Sex crimes can thus have consequences beyond serving a prison sentence.
For individuals facing criminal charges for alleged sexual offenses, finding an experienced criminal defense attorney is essential to understand the charges and formulate a defense strategy.
This article will cover the different sex crimes and discuss further legal resources.
Types of Sex Crimes
Defendants can be prosecuted for alleged sex crimes in either federal or state court.
Pettlon says the vast majority of sex crimes are prosecuted in state courts. When it comes to federally prosecuted sex offenses, he adds, “generally it’s going to 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 pornography 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.
Consent is a crucial element in sexual assault. Consent may be lacking because the offender does something to someone against their will or because the victim does not have the legal capacity to give consent.
It’s important to realize that the exact definition of sexual assault varies by state law. For example, most states distinguish between sexual contact and sexual penetration in classifying offenses:
- Unwanted sexual contact can include forced kissing, touching someone’s genitals, or touching a woman’s breast without their consent
- Unwanted sexual penetration can include 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 breaking it into separate offenses, including sexual battery, sexual abuse, and rape.
Under Kansas law, for example, Pettlon says sexual battery occurs when “a person touches someone in a sexual way—typically their private areas, though it doesn’t have to be.”
There can be a gray area in determining whether touching is sexual battery or simple battery, Pettlon says. 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 will have to register as a sex offender.
The labels for these sex crimes matter less than how each state defines them and the penalties attached to them. It’s important for individuals accused of a sexual offense to seek legal advice from a criminal defense lawyer with experience in sex crime cases.
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 outmoded 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. For example, in some cases of date rape, the incident may have occurred without force and yet still be nonconsensual.
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
Whether there was consent is often crucial in rape cases and can be challenging to prove. Given the difficulty and sensitivity of these cases, it is best for all parties to seek legal advice from an attorney with experience in sex offenses.
Statutory rape refers to sexual relations with individuals under the legal age of consent. People under the age of consent 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. This defense 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.
In addition to statutory rape, there are several other sex crimes involving minors.
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
- Using the child to gratify or stimulate oneself sexually
- Inappropriate touching or contact
- Showing a child pornography or making them 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.
Both federal and state laws criminalize the production, distribution, or possession of pornography involving individuals under 18. Child pornography laws apply to physical materials as well as possession or dissemination on the internet.
Child pornography laws are designed to protect children from sexual exploitation. The penalties for distributing or possessing child pornography are severe, including lengthy prison sentences and mandatory sex offender registration.
Child pornography can be prosecuted at either the state or federal level. Typically, child pornography 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 pornography. 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 child pornography 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
- 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.
Questions for an Attorney
If you have been accused of a sex crime, it is essential to speak with a criminal defense attorney with experience in sex offenses as soon as possible.
Many attorneys provide free consultations to prospective clients. These consultations allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.
To see whether an attorney or law firm is a good fit, ask informed questions such as:
- What are your legal fees, and what billing options do you offer?
- What is your experience with sex crime cases?
- What is the statute of limitations in my case?
- What are the penalties for the offense I am charged with?
- What are my best defenses?
You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
Look for a sex offense attorney in the Super Lawyers directory if you are facing sex offense accusations.
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