Sexual Assault: Law, Punishments and Penalties

Sexual assault crimes are the most abhorred classification of crimes outside of murder. When a criminal defense attorney for a drug dealer is desperate for a plea of leniency, the closing argument will usually consist of, “at least my client is not a sex offender.” Because of high profile child sexual assault cases, the defenses, punishments, and registration requirements have significantly changed over the last several years.

Changes to Defenses to Sexual Assault Crimes

The most significant change in defenses to sexual assaults has been in the area of rape shield laws. Twenty plus years ago, a common defense was the child or woman was promiscuous and her entire sexual history was admissible as evidence of that defense. Under modern rape shield laws, the victim (child or adult) is protected from the embarrassment of his or her history. 

Many state statutes now bar promiscuity as a defense, except under very limited circumstances. This limitation frustrates many defendants because they may know of multiple other men that a victim has had consensual sexual relations with, but absent an exception, the evidence is not admissible, even in consent defense cases.

Common Defenses in Adult Sexual Assault Cases

A common defense in adult sexual assault cases is consent. This essentially involves a defendant agreeing that sexual relations occurred, but that they were voluntary. The idea seems simple, until there is an overlap with child sexual assault cases. Many states have deemed that children of certain ages are not able to consent—even if they wanted to. For example, a thirteen-year-old child cannot legally consent to sexual relations in Texas.  If he or she has otherwise consensual sex with a seventeen year-old, the older teen could be charged with sexual assault. 

Fortunately, the extreme application of this result has led to more statutory defenses, also known as the “Romeo and Juliet” defense. This defense excuses or minimizes the sexual assault if the defendant can demonstrate that the victim and the defendant were close in age and the conduct was otherwise consensual (i.e. statutory, rather than forced rape).

DNA Defense in Sexual Assault Cases

Even though consent is the most common defense in sexual assault cases, many defendants also benefit from an actual innocence defense using DNA. As compared to years past, more law enforcement agencies are requiring or requesting victims to submit to sexual assault exams to preserve DNA evidence. This means material that is more physical is available to defendants for testing to prove that they did not participate in the alleged sexual assault. 

Penalties for Sexual Assault Crimes

If a defendant is found guilty of a sexual assault, the penalties for sexual assault will vary depending on state laws and any aggravating circumstances relating to the assault. As mentioned, because of gruesome headlines involving abductions and child sexual assaults, many states have significantly stiffened the penalties for sexual assault offenses. Florida attempted to lead the charge with one of the toughest child sexual assault punishments by assessing the death penalty for certain types of sexual assaults. The Supreme Court has knocked down death penalty cases, so far, for sexual assault cases that do not result in the death of a victim. However, they have not invalidated stiff or extreme penalties, which include life without parole type sentences. 

Sentences for Sexual Assault Crimes

How much time a defendant will actually have to serve in jail will depend on aggravating circumstances. In the “Romeo and Juliet” scenario discussed above, a defendant will have a better chance of getting a deferred or probated sentence because intercourse was not forced and the defendant is younger in age. The younger the child or the higher level of force used will usually result in a higher, or aggravated sentence, which can range from a couple of years in prison, up to a life sentence. 

Some states have even enacted minimum required sentences. For example, if you are convicted of the continuous sexual abuse of a child in Texas, the minimum sentence allowed is twenty-five years in prison. If a defendant has previously been convicted of a sexual assault, then the defendant will automatically be assessed a life sentence upon conviction.

Sex Offender Registration for Convicted Sex Offenders

Regardless of how much time a defendant is ordered to serve in prison or on community supervision, most states now require some type of sex offender registration. Like punishment ranges, registration requirements tend to vary in relation to the severity of the crime. Lower level sexual assault offenders generally register for short periods, whereas more violent sex offenders are required to register for life. This is not a requirement that should be taken lightly before making a final decision on your case. 

Failure to comply with registration requirements usually result in the filing of new charges. Even if new charges are not filed, registration information is frequently posted on the internet—which makes it incredibly difficult for offenders to hide from their past and apply for certain housing or employment opportunities.

Getting Help

Virtually every state re-evaluates and updates its sexual assault laws every other year. Do not assume that you know the current laws. Even a basic consultation with a criminal defense attorney can help prevent unwelcome lessons with new sexual assault or sex offender registration laws in your state.