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Sex Crimes

Sexual Assault convictions can bring severe penalties and stigma.  If you or a loved one is facing an allegation of sexual assault, you need an experienced trial lawyer.  George Freeman is a seasoned Fairfax Criminal Defense Attorney and will gladly discuss your case with you.

Here are some points to consider regarding sexual assault offenses:

  • Some offenses do not require registration on the Virginia Sex Offender Registry, but most do.  And, of those offenses that require registration, many require registration for life.  
  • Sometimes the Commonwealth has forensic evidence, like DNA, or is able to use statements from the alleged victim that would otherwise be inadmissible.  The Rules of Evidence in Virginia permit some evidence is sexual assault cases involving children that would not be admissible in a typical case.
  • The Commonwealth can also seek enhanced penalties with relative ease for more serious offenses.  A person charged with a sexual assault needs representation from an experienced Fairfax Sex Crimes Defense Lawyer in handling such matters.
  • Some cases of sexual assault do not require any sexual intent; the act alone constitutes the offense.  Other offenses do not require a criminal intent nor do some require the alleged victim to protest or resist.  
  • What's more, under Virginia law, an alleged victim's proclamation that he or she was assaulted is all that is needed to sustain a conviction.  Corroboration of the alleged victim's assertion is not required. This does not mean a jury will necessarily convict in such a case, but it demonstrates how much impact the words of another person can have.

To read about Misdemeanor Sexual Battery, click here

To read about Abduction with Intent to Defile, click here.

Rape, in violation of Virginia Code § 18.2-61

Rape is an extremely serious offense.  In Virginia, if a person is convicted of Rape, they are facing a maximum penalty of Life in Prison.  The least penalty for this offense is 5 years – a judge can suspend some or all of that sentence in most instances.  However, if you are convicted of Rape and the victim is under the age of 13, the sentence a judge must impose is Mandatory Minimum Life.  If a person commits a Rape while also committing an Abduction, Burglary or Aggravated Malicious Wounding, the punishment is up to Life with a Mandatory Minimum period of confinement of at least 25 years.  A person convicted of Rape must register on the Virginia Sex Offender and Crimes Against Minors Registry. 

The Elements of Rape:

  • A person must have sexual intercourse with a “complaining witness” (i.e. – the victim)
    • Sexual intercourse is defined as penetration of the labia majora, no matter how slight, by the penis
  • (It is immaterial whether or not the person and the complainant are married)
  • AND, the act of sexual intercourse must be accomplished against the complainant's will (without consent) by
    • Force,
    • Threat, or
    • Intimidation
  • OR, the act of sexual intercourse must be accomplished through the use of the complainant's
    • Mental incapacity, or
    • Physical helplessness
  • OR, the act of sexual intercourse was with a child under the age of 13 years.

If an individual causes the complainant to have sexual intercourse through any of the scenarios set forth above, they too are guilty of Rape. 

Defenses to Rape:

  • No sexual activity occurred. An allegation of sexual assault needs corroboration, as a practical matter.  An individual accused may not even have actually engaged in sexual intercourse.  DNA evidence can become critical in such a case.
  • Consent – this is an absolute bar to a conviction for Rape. A complainant cannot retroactively decide that he or she regrets a consensual act in the morning, for example.  At the time of the activity, if the intercourse was consented to there can be no conviction for Rape, unless the victim was under the age of 13.  In such a case, children are deemed incapable of consenting.
  • For Mental Incapacity cases, the defense may be that the complainant had capacity.
    • Mental Incapacity is defined under § 18.2-67.10: a condition of the complaining witness
      • existing at the time of an offense
      • which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense; and
      • about which the accused knew or should have known
    • The law does not prohibit a person with a mental disability from engaging in consensual sexual activity. Only when the individual does not know what is involved in the sex act or does not understand that the sex act may have social, familial and societal consequences can they be mentally incapacitated.
      • It can be extremely difficult for the Commonwealth to prove this element.
    • For Physical Helplessness cases, the defense may be the complainant was not helpless.
      • Physical Helplessness is defined under § 18.2-67.10: unconsciousness or any other condition existing at the time of an offense which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known.
        • A person who is unconscious is clearly physically helpless; so is a person who is in a coma or that is sleeping. But an intoxicated person may also be physically helpless depending on how drunk they are.  These cases can be very difficult for the Commonwealth.  Being drunk alone does not make one physically helpless.  A person who is drunk can still engage in consensual sexual activity so long as the are able to perceive and understand what is occurring and they consent.
        • Remember, if a person is awake and able to respond, react, and communicate they cannot later claim to have been physically helpless.
      • Identity – depending on the facts of the case, identity of the alleged perpetrator is always an issue.
      • Age of the Victim – This is NOT a defense. Under Virginia law, it does not matter if the defendant was not aware, or honestly believed, the victim was older than he or she actually was.  This is known as strict liability. 

If you are facing a Rape charge, you need to consult with an experienced Sexual Assault Attorney.  George Freeman is a Fairfax Criminal Defense Attorney and Former Fairfax County Prosecutor.  He has handled hundreds of serious felony crimes cases.  Call him today for a free consultation.

Carnal Knowledge, in violation of Virginia Code § 18.2-63

Carnal Knowledge is punishable by up to 10 years confinement but not less than 2 years.  A judge can suspend some or all of the sentence.  It is sometimes to referred to as statutory rape.  This offense is a strict liability offense; this means the volitional act is all that is required.  You do not have to have a specific intent and lack of knowledge regarding the defendant's age is no defense.

These are the elements of Carnal Knowledge:

  • A person who “carnally knows”
  • Without the use of force
  • Any child age 13 or 14 years old

“Carnal Knowledge” means sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and object sexual penetration. 

All the Commonwealth must prove is the act.  Because this is a strict liability offense, it does not matter whether the defendant believed, even reasonably, that the child was older.  For example, even if the child told the defendant he or she was 18, or whatever age, it is not a defense.

In situations where the defendant is also a minor, the penalty is less severe and in some instances is chargeable as a misdemeanor.

Forcible Sodomy in violation of Virginia Code § 18.2-67.1

Forcible Sodomy is punished the same as Rape.  The elements and defenses are the same as well.  Instead of addressing the act of sexual intercourse, Sodomy deals with the acts of cunnilingus, fellatio, anilingus, and anal intercourse.  If any of those acts are committed in the manner prohibited the same as for Rape, a person is guilty of Forcible Sodomy.

Object Sexual Penetration in violation of Virginia Code § 18.2-67.2

Object Sexual Penetration is punished the same as Rape.  The elements and defenses are the same as well.  Instead of addressing the act of sexual intercourse, Object Sexual Penetration deals with acts of penetration of the labia majora or anus of any person, regardless of whether an animate or inanimate object is used.  If any of those acts are committed in the manner prohibited the same as for Rape, a person is guilty of Object Sexual Penetration.

Aggravated Sexual Battery in violation of Virginia Code § 18.2-67.3

Aggravated Sexual Battery is punishable by up to 20 years but not less than 1 year confinement.  Some or all of the sentence may be suspended by the judge. 

Unlike Rape, Sodomy, and Object Penetration – Aggravated Sexual Battery is a specific intent crime.  The other offenses described above prohibit only sexual acts committed in particular ways.  Aggravated Sexual Battery prohibits certain acts committed with sexual intent.  Therefore, intent is a major issue with an Aggravated Sexual Battery offense.  The defendant must have a specific intent to sexually abuse when he or she commits the act. 

Before setting forth the elements, sexual abuse is defined as: an act committed with the intent to sexually molest, arouse, or gratify any person, where:

  • The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts;
  • The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts;
  • If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or
  • The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts.

Here are the elements:

  • A person sexually abuses a complainant; AND 
    • The complainant is under the age of 13 years; or
    • The act is accomplished through the use of the complainant's mental incapacity or physical helplessness (see above for those definitions); or
    • The offense is committed by a parent, step-parent, grandparent, or step-grandparent AND the complainant is at least 13 years of age but not 18 years of age; or
    • The act is accomplished against the will of the complainant by force, threat, or intimidation; AND
      • The complainant is at least 13 years of age but less than 15 years of age; OR
      • The person causes serious bodily injury OR mental injury to the complainant; OR
      • The person uses or threatens to use a dangerous weapon; or
    • The act is not a recognized form of treatment in the profession and, without the consent of the patient, is committed by a massage therapist, practitioner of the healing arts, or physical therapist.

Without sexual abuse, demonstrating a specific intent to sexually molest, arouse, or gratify any person, the acts do not matter.  However, a touching that may not constitute an Aggravated Sexual Battery could still be a Misdemeanor Sexual Battery or an Assault & Battery. 

Intent, particularly specific intent, can be difficult to prove.  Often, it is not known what a person's intentions are unless they tell us.  But don't be misled – the law permits judges and juries to use their common sense.  You may infer one intends the natural and probable consequences of their actions.  And you may look at surrounding facts and circumstances to determine one's intent. 

Aggravated Sexual Battery cases are extremely fact specific.  Every detail matters.  Details can show intent or lack thereof.  Such cases typically involve groping and touching without much more – if more were involved the charge would likely be elevated to a Rape, Sodomy, or Object Penetration. 

If you are facing an Aggravated Sexual Battery charge, you need to consult with an experienced Sexual Assault Attorney.  George Freeman is a Fairfax Criminal Defense Attorney and Former Fairfax County Prosecutor.  He has handled hundreds of serious felony crimes cases.  Call him today for a free consultation.

Indecent Liberties with a Minor in violation of Virginia Code § 18.2-370

This offense requires registration as a sex offender and though no physical contact necessarily may occur, is a felony punished as a sex offense.  Indecent Liberties with a Minor is punishable as a Class 5 felony – up to 10 years confinement.  Similar to Aggravated Sexual Battery, Indecent Liberties is a specific intent crime.  This means the perpetrator must not only commit an act but must do so with a particular purpose.

The Elements:

  • A person 18 years of age or over
  • with lascivious intent (the specific intent requirement)
    • Lascivious means a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite
  • knowingly and intentionally commits any of the following acts with any child under the age of 15 years:
    • Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or
    • Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or
    • Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act of bestiality or incest; or
    • Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth above

Additionally, any person

  • 18 years of age or older
  • with lascivious intent
    • Lascivious means a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite
  • knowingly and intentionally receives money, property, or any other remuneration for allowing, encouraging, or enticing any person under the age of 18 years to perform in or be a subject of sexually explicit visual material; or
  • who knowingly encourages such person to perform in or be a subject of sexually explicit material is guilty of Indecent Liberties

This theory of Indecent Liberties punishes those that encourage a minor to engage in the production of child pornography.  This is separate and apart from the offense of actually producing child pornography.

Any person who is convicted of a second or subsequent violation of Indecent Liberties is punished under a Class 4 felony – up to 10 years but not less than 2 years.  The subsequent violation must be separate and apart from the first violation.  In other words, if you are charged with multiple counts in one instance that would not count as a subsequent charge.

Parents, grandparents and step-parents and step-grandparents face an enhanced penalty – Class 4 felony – for violation of the Indecent Liberties statute if the child is less than 15 years.  Additionally, if the child is 15 years but less than 18 years, the offense is a Class 5 felony.

Custodial Indecent Liberties with a Minor in violation of Virginia Code § 18.2-370.1

Custodial Indecent Liberties prohibits certain acts with a specific intent but requires the perpetrator to have a custodial or supervisory relationship over the minor.  Further, this section applies to all minors.  Whereas most forms of Indecent Liberties require the minor to be under the age of 15 years, Custodial Indecent Liberties applies to any minor.  This offense also requires registration on the sex offender registry.  This offense is punishable as a Class 6 felony – up to 5 years confinement.

The Elements:

  • A person 18 years of age or older who
    • maintains a custodial or supervisory relationship over a child under the age of 18 (and is not legally married to such child and such child is not emancipated)
    • with lascivious intent
    • knowingly and intentionally
      • proposes that any such child feel or fondle the sexual or genital parts of such person or that such person feel or handle the sexual or genital parts of the child; or
      • proposes to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense of incest or bestiality; or
      • exposes his or her sexual or genital parts to such child; or
      • proposes that any such child expose his or her sexual or genital parts to such person; or
      • proposes to the child that the child engage in sexual intercourse, sodomy or fondling of sexual or genital parts with another person; or
      • sexually abuses the child (see sexual abuse definition above under Aggravated Sexual Battery section)

Any person who is convicted of a second or subsequent violation of Custodial Indecent Liberties is punished under a Class 5 felony – up to 10 years.  The subsequent violation must be separate and apart from the first violation.  In other words, if you are charged with multiple counts in one instance that would not count as a subsequent charge.

What constitutes as a custodial or supervisory relationship may be a legal question, but could also be a fact question for a jury to decide.  Relationships include sports coach, teacher, babysitter, potentially an employer, or any person in a position of authority over the minor.  But certain non-familial relationships can become somewhat a blur whether a custodial or supervisory relationship exists.

Contributing to the Delinquency of a Minor in violation of Virginia Code § 18.2-371

Contributing is a Class 1 Misdemeanor and does not require registration on the sex offender registry.  Contributing covers a large array of conduct.  For example, a person who unreasonably leaves a child unattended and without supervision is Contributing.  So is a person who provides a child with a cigarette; or who commits a larceny with a child as an accomplice.  The statute is vast but for this section we will discuss Contributing as it relates to consensual sexual activity.

The Elements:

  • A person 18 years of age or older
    • engages in consensual sexual intercourse or anal intercourse with or performs cunnilingus, fellatio, or anilingus upon or by a child 15 or older not his spouse, child, or grandchild.

The Contributing statute excludes conduct between an adult spouse and emancipated minor who is married – thus, there is no crime.  The Contributing statute also excludes conduct between child and grandchild – there is a crime, however.  In the latter instance, the charge is a felony punishable as Incest.

Though not always the case, Contributing charges often arise between young people in a scenario where one person is just into adulthood and the other has not quite gotten there yet.  These cases can be emotionally charged and involve the entire family.

If you are facing a sexual offense charge, you need a seasoned trial attorney to defend your case and explain your options.  George Freeman is a Fairfax Criminal Defense Attorney and former prosecutor.  Contact him today for a free consultation to discuss your matter.

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