In the State of California, many acts are considered sex crimes. This article will define each and explain the elements of the crime.
Rape is unlawful sexual activity that can be carried out through force or threats of force and includes non-force methods such as deception. It is also considered rape if the victim was unable to provide consent.
While most consider rape when it occurs under threat of violence or fear, an offender may also be charged with rape if they engage in sexual intercourse with another person under any of the following circumstances:
Mental Disorder/Physical Disability
The victim is incapable of giving consent because of a mental disorder or physical disability, and the offender was aware of the disability.
· An example of this type of rape would be a home health care practitioner having sexual intercourse with a mentally ill patient and unable to provide consent.
When the victim cannot resist due to intoxication or an anesthetic substance, or any controlled substance, and the offender knew or reasonably should have known of the victim’s condition.
· An example of this type of rape would be if someone was at a bar and obviously intoxicated. If the offender took this person home and had sex with them, they could be charged with rape because the victim was too intoxicated to provide lawful consent.
If the victim was unconscious to the nature of the act, and this was known to the offender.
· An example of this type of rape would be if the victim became unconscious because of drinking or doing drugs and the offender had sex with the person.
If the victim submits to a sexual encounter under the belief that the offender is someone known to the victim other than the offender, this false belief was intentionally induced by the offender’s artifice, pretense, or concealment.
· An example of this type of rape would be if the offender pretended to be someone they were not. For instance, if at a Halloween party, the offender dressed up and presented themselves as another person to “trick” the victim into having sex with them.
The threat of Future Violence
This type of rape is accomplished when the offender threatens to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the offender will execute the threat.
· An example of this is if the offender (a former boyfriend/girlfriend and coworker) threatens to spread false rumors around the office to get the victim fired from their job if they refuse to have sex with them.
Under the Color of Authority
Suppose a person uses their position of authority as a public official or impersonates a public official to force a victim to have sex. This type of rape is when the offender will use their power to arrest, incarcerate or deport the victim if they refuse to have sex with them. Even if there is no threat, it could still be considered rape because the offender is in a position of authority over the victim.
· An example of this type of rape is if a correctional officer has sex with an inmate. Even if it was consensual, the guard is in a position of authority, which means the inmate (victim) would feel pressure/threat of retaliation if they refused to comply with the request.
Rape of a Spouse
Rape can be charged even if the couple is married. Similar to the categories of rape above, if the offender uses force, violence, duress, menace, or fear to engage in sex with their spouse, they could be charged with rape. If the victim (spouse) cannot resist due to intoxication, unconsciousness could constitute spousal rape.
· An example of this would be if a husband repeatedly asks his wife to have sex and she refuses. So, he starts drinking with her in hopes she will become intoxicated. When she passes out, he has sex with her. This would be an example of spousal rape.
The crime of sodomy is defined as sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.
Forcible Acts of Sexual Penetration
An offender commits the crime of forcible acts of sexual penetration by committing an act of sexual penetration against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. It can also occur if the victim is unable to provide consent due to mental deficiency, physical disability, or being unconscious.
The crime of oral copulation involves copulating the mouth of one person with the sexual organ or anus of another person.
An offender commits the crime of sexual battery in the following circumstances:
· By touching an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, the touching is against the will of the person touched, and the touching is for sexual arousal, sexual gratification, or sexual abuse.
· By touching an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, the touching is against the will of the person touched, and the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse.
· By touching an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.
· By causing a victim to masturbate or touch an intimate part of the offender, the victim, or a third person for the purpose of sexual arousal, sexual gratification, or sexual abuse, where the victim is either unlawfully restrained by the offender or an accomplice or is institutionalized for medical treatment and is seriously disabled or medically incapacitated.
· By touching an intimate part of another person where the touching is against the will of the victim and the touching is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.
Sexual battery does not include rape or forcible acts of sexual penetration; these are separate crimes.
Statutory Rape or Unlawful Intercourse with a Person Under 18
Often called statutory rape, this crime is when a person over the age of 18 has sex with another person under the age of 18. Because 18 years is the age of consent, anyone under the age of 18 cannot provide legal consent to engage in sexual activity. The age gap between the offender and the victim plays a role in the seriousness of the offense.
· When the minor is not more than three years older or three years younger than the offender, the crime is a misdemeanor, punishable by no more than one-year imprisonment.
· When the minor is more than three years younger than the offender, the crime is either a misdemeanor (punishable by no more than 1-year imprisonment) or a felony (punishable by imprisonment of 16 months, two years, or three years).
· When the offender is 21 years old or older, and the minor is under 16 years old, it is either a misdemeanor (punishable by no more than 1-year imprisonment) or a felony (punishable by imprisonment of 2, 3, or 4 years).
Aggravated Sexual Assault of a Child
An offender commits aggravated sexual assault of a child by committing the following crimes on a child under the age of 14 or who is seven or more years younger than the offender. Technically, this offense is rape, sodomy, oral copulation, or forcible acts of sexual penetration on a child, and therefore the penalties are significantly higher. Aggravated sexual assault of a child is a felony, and it is punishable by imprisonment in state prison for 15 years to life. Further, an offender is subject to consecutive sentences for each offense under section 269 of the California Penal Code, whether the crimes involve separate victims or the same victim on different occasions.
Sexual Acts with a Child 10 Years or Younger
When the offender is at least 18 years old, and the victim is ten years old or younger, and the offender commits the crime of rape, sodomy, or oral copulation, the offenses are re-classified as sexual acts with a child ten years or younger. When the offender is at least 18 years old and engages in sexual intercourse or sodomy with a ten-year-old child or younger, the punishment is imprisonment for 25 years to life. When the offender is at least 18 years old and engages in oral copulation or sexual penetration with a ten-year-old child or younger, the punishment is imprisonment for 15 years to life.