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What Is Considered Sexual Assault?

Understanding your legal rights if you’ve been sexually assaulted

Sexual assault can take many forms and affects hundreds of thousands of Americans annually.

Regardless of the form sexual assault takes, it is never the victim’s fault. If you have experienced sexual assault, it is essential to take immediate steps to ensure your safety and to seek support from others.

It is also important to understand your rights and the legal action you can take. This article will give an overview of sexual assault and help point to further legal resources.

Types of Sexual Assault

Sexual assault is a general term that refers to any sexual act without the person’s consent. Sexual assault can take different forms and can be committed against anyone, regardless of age, gender, or sexual orientation.

Consent may be lacking because the person does not give it or because the person is considered to lack the legal capacity to give consent.

The legal definition of sexual assault depends on each state’s criminal laws. Some states do not have an offense specifically called sexual assault and instead use more specific categories such as sexual battery, sexual abuse, or rape.

Regardless of the exact legal specifications, sexual assault can include:

  • Unwanted sexual contact such as fondling, kissing, or touching (with or without clothing)
  • Unwanted sexual penetration, including sexual intercourse, anal sex, or any other form of penetration with a body part or object
  • Forcing someone to perform sexual acts, including oral sex or masturbation

It’s important to realize that forcing someone into sexual activity doesn’t necessarily mean using physical force. Emotional coercion, psychological force, and manipulation are also modes of pressuring someone into unwanted sexual activity.

State laws often distinguish between unwanted sexual contact and unwanted sexual penetration (rape), with the latter carrying more severe penalties.

Rape

Rape is a form of sexual assault involving sexual penetration without the person’s consent.

According to antiquated legal definitions, rape only occurred when a man physically forced a woman who was not his wife to have intercourse.

Under this definition, raping one’s spouse was technically legal. However, most states have updated their legal definition of rape so that marriage is no longer a defense. In other words, marital or spousal rape can be prosecuted in most states.

Modern definitions of rape have also removed references to physical force or gender. For example, the U.S. Department of Justice defines rape as “the penetration, no matter how slight, of the vagina or anus with any body part or object … without the consent of the victim.”

This means that rape is no longer confined to instances when the perpetrator is male and the victim female or where physical violence is involved.

Attempted rape is also a crime. Attempted rape occurs when the perpetrator intends to rape someone and acts towards that goal, but sexual penetration does not ultimately happen.

The critical element of rape is lack of consent to the sexual activity.

Date Rape

The term “date rape” simply refers to rape that occurs on a date. Like the related term “acquaintance rape,” it refers to the context and perpetrator of the rape.

Most rapes are acquaintance rapes, perpetrated by family members, coworkers, or dates. In terms of their legal definition and severity of penalties, date rape and acquaintance rape are no different than rape in other circumstances.

Statutory Rape 

As we saw above, the key element of rape is lack of consent to the sexual penetration.

Statutory rape occurs when the victim is under the legal age of consent. Each state sets the legal age of consent, but it is typically between 16 and 18 years of age. Individuals who are under this age are considered legally incapable of giving consent.

Some states have exceptions to statutory rape, including:

  • The honest mistake exception is when the perpetrator argues they believed the person was above the age of consent
  • When the perpetrator is only a couple of years older than the victim

Statutory rape laws protect minors from sexual violence and exploitation and can carry heavy penalties, including sex offender registration.

Sexual Assault and Sexual Harassment

Sexual assault is a crime that is defined differently under state laws. Sexual harassment is a civil matter defined under both state and federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964.

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment occurs whenever unwanted sexual conduct “explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

The key thing to realize is that sexual harassment in the workplace “doesn’t necessarily have to have a criminal element to it,” says Kansas criminal defense attorney Trey Pettlon. For example, sexual harassment could just involve “treating someone differently because of their sex. It doesn’t have to involve touching [or sexual battery].” However, “depending on how the sexual harassment is done, it can also be a crime.”

If sexual harassment does involve sexual assault, an alleged victim could press criminal charges in addition to bringing a civil lawsuit for workplace discrimination.

If you have experienced sexual harassment in the workplace, consider speaking with an employment law attorney who specializes in sexual harassment.

What To Do After a Sexual Assault

If you are a victim of sexual assault, it’s important to ensure your immediate safety and wellness.

Seeking medical care after sexual assault can be essential to protecting your immediate and long-term health. Health care workers are prepared to give compassionate and proper care and can also assist you with finding mental health resources. 

Getting a medical report soon after experiencing sexual assault can also benefit you in the long term if you choose to pursue legal action against the perpetrator. For example, getting a rape kit (or forensic rape exam) can assist law enforcement in their investigation and provide crucial evidence in criminal proceedings.

Once you have received medical care, you can file a sexual assault report with law enforcement to initiate an investigation. It is advisable to speak with a sexual assault attorney as soon as possible to ensure the best outcome in your case.

Questions for an Attorney

Filing a sexual assault claim and going to trial is complex and time-consuming. It is essential to have good representation if you choose to pursue legal action. 

Fortunately, 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?
  • How many years of experience do you have as a sexual assault lawyer?
  • What is the statute of limitations on my claim?
  • Should I pursue a civil lawsuit in addition to criminal charges?

You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location. 

If you have experienced sexual assault, look for a sexual assault attorney in the Super Lawyers directory.

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