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Sexual Battery

UPDATED: June 19, 2018

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Sexual battery is generally defined as unwanted or non-consensual sexual contact. Some states also define sexual battery as any sexual contact with a child under sixteen years of age, regardless of whether the victim consented to the contact. Read further to understand how sexual battery is charged, the potential defenses, and the punishment consequences of a sexual battery conviction.

What is Sexual Battery?

Every state has its own sexual battery statute which sets out what conduct is considered sexual battery. Some states use the term sexual battery, and other states may use terms like rape or sexual assault. If the battery involves a child, some states will use the same term, sexual battery, while others use alternate terms such as sexual assault of a child, indecency with a child, or child molestation.

Sexual battery is generally defined as the non-consensual touching of another with intent to arouse or gratify the sexual desire of the offender. Many states will consider any sexual conduct, such as groping, touching genitals over or under clothing, etc., to be sexual battery. Other states only consider acts involving penetration as sexual conduct. This distinction can be the difference between being charged with a felony versus a misdemeanor offense. Sexual conduct is the first element of this type of charge. The charges must involve some sexual contact plus one other circumstance. Most states will list multiple situations which constitute sexual battery.

Sexual Battery Categories

The first category involves the use of force. Virtually every state considers forced sexual contact to be sexual battery. This involves a person using physical violence or the threat of physical violence to compel a victim to submit to a sexual act. Most appellate courts will review the factors surrounding the event from the victim’s point of view to determine if she felt threatened into the sexual act. Sometimes acts by a defendant can be interpreted two different ways, but how a victim would see the intent of the act will control the interpretation on appeal.

The second category of sexual battery relates to victims with limited mental capacity. If the victim has a mental defect such that she cannot consent, then any sexual act committed with this type of victim will be considered sexual battery, regardless of whether the victim consented. Some states focus on victims with permanent mental deficiencies, however, others will protect victims of temporary mental deficiencies like those that are drugged by the defendant or intoxicated on their own. If a state does not equate drugged victims to victims with mental defects, it will carve out another category of sexual battery charges for victims who are drugged by a defendant. These statutes do not require the use of a date rape drug, but instead focus on the use of any drug use to facilitate the offense.

The third category of sexual battery involves the age of the victim. Each state has set an age of consent. For example, children under sixteen years of age cannot consent to sexual contact in Mississippi. Other states consider fourteen years of age to be the age of consent. Statutes which create automatic, or per se, liability for sexual contact with a minor are frequently referred to as statutory rape laws. A defendant can be charged and convicted of sexual battery if the victim is underage, even if the victim consented to the sexual contact. However, some limited consent defenses are available when the sexual battery is only based on the age of the victim.

Defenses for Sexual Battery Charges

Consent is usually the first defensive theory raised in a sexual battery charge and is available as a defense for an adult victim who does not suffer from a mental defect. If the adult victim suffered from some mental illness, then most states will not extend consent as a defense. Similarly, if the victim was drugged or incapacitated such that she could not consent, many states will not extend consent as a defense. Even though sexual battery laws have toughened over the last several years as applied to children, more states have enacted Romeo and Juliet defenses. If a defendant is within a certain age of the victim, usually around three years, and the sexual contact was otherwise consensual, then many states now offer defendants an affirmative defense to a sexual battery charge.

The most common defense to a sexual battery charge based on a child’s age is the mistake of fact defense. Defendants using this defense claim that they did not know the victim's actual age. Even though this seems like it would be a viable defense, most state statutes do not require the state to prove that a defendant actually knew the age of the victim; only that the sexual contact occurred. If a state allows a defendant to use a mistake of fact defense in a sexual battery case, then the burden of proof is on the defendant, not the state.

Some states will not entertain a mistake of fact defense in a sexual battery case. In these states, defendants present evidence of the consensual nature of the sexual battery and ask the jury to nullify the conviction. This is when a defendant admits the conduct, but asks a jury to excuse it and ignore the written text of the law. Even though this may seem like it’s worth the gamble, a nullification defense needs to be thought through carefully because some judges will not allow the introduction of testimony needed to make the nullification argument.

The third common reaction or defensive theory is to paint the victim as less than credible by dredging up her prior sexual history. Several years ago, many states actually had promiscuity listed as a defense to sexual battery. However, since that time, more states have passed rape shield laws which prevent a defendant from presenting evidence of a victim’s prior sexual history, except under very limited circumstances.

The fourth defensive theory is to test the evidence. Defendants can request re-testing of any forensic evidence used against them, including semen, DNA samples, hair combings, and clothing. Numerous defendants have been exonerated with the use of modern DNA testing techniques. Each state has its own procedure for requesting re-testing. Before making this request, however, a defendant should keep in mind that re-testing can sometimes backfire. Even though many defendants have made the headlines for being exonerated by DNA testing, just as many have sealed their convictions with additional expert testimony through re-testing.

Punishment and Possible Consequences

A defendant’s life is rarely the same after a sexual battery conviction. The first major consequence is the sentence imposed. Sentencing can range from two years up to forty years for a basic conviction. If a person has been placed on probation or been convicted of a prior sexual battery type offense, then some states will impose an automatic life sentence on a defendant for a second sexual battery conviction.

Defendants sentenced to prison time are usually required to serve a larger portion of their time before becoming eligible for parole. If a defendant is placed on some type of probation, he is usually required to submit to intensive supervision which can include monthly polygraphs, sex offender counseling, weekly reporting requirements, and electronic monitoring. They will also be subject to more restrictions which can include not living within 1,000 feet of a school, having no contact with children, and not being allowed to drive through parks where children gather.

The second major consequence for a sexual battery charge, regardless of the sentence imposed, is a sex offender registration requirement. The time period requirement to register as a sex offender after a sexual battery charge can last from ten years to a lifetime. Many employers and apartment communities will reject applicants who are required to register as sex offenders. A defendant who fails to register as required can face new state or federal felony level charges.

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