The article, “Sexual Offenses In United States” authored by Nilanjana Banerjee aims to briefly discuss all the sexual offenses as are exist in United States. However, this article focuses more on rape as a sexual offense. Not every offense relates to the public arena of an individual’s life. There are certain offenses that meddle with private arenas of… Read More »

The article, “Sexual Offenses In United States” authored by Nilanjana Banerjee aims to briefly discuss all the sexual offenses as are exist in United States. However, this article focuses more on rape as a sexual offense. Not every offense relates to the public arena of an individual’s life. There are certain offenses that meddle with private arenas of life, like sexual offenses. Every individual has the right to choose their sexual partner. Further, everyone reserves the right...

The article, “Sexual Offenses In United States” authored by Nilanjana Banerjee aims to briefly discuss all the sexual offenses as are exist in United States. However, this article focuses more on rape as a sexual offense. Not every offense relates to the public arena of an individual’s life.

There are certain offenses that meddle with private arenas of life, like sexual offenses. Every individual has the right to choose their sexual partner. Further, everyone reserves the right to give as well as withdraw consent for sexual activities. But not everyone respects these boundaries and hence interferes with private lives.

Some of such sexual offenses are rape, incest etc. Not necessarily every statute will explicitly bestow this right to an individual being. But it can be found to be implicitly existing in right to expression and the right to live with dignity.

Introduction

There are several national and international legal provisions which protect liberty and dignity of individuals. But hardly anyone of them talks about sexual rights and liberties. But these rights are equally important as the other rights are. But such rights do not find direct mention in the provision.

It is implied in those legal provisions which penalise sexual offenses. These are the offenses which violate the sexual rights of an individual. Before moving into other technicalities, it is important to know what are the different sexual rights, which when violated can lead to an offense.

Every individual should have the right to choose their sexual partner as well as they should reserve the right to give and withdraw consent. It is when these rights are violated, sexual offenses occur. There are various sexual offenses like rape, sodomy, incest, spousal rape etc. But this article will focus on rape and discuss briefly about other offenses.

What Are Sexual Offenses?

A proper definition of sexual offenses is- It occurs when the physical body is interfered with in an inappropriate manner by another person deliberately either by touching any part sexually or in sexual intercourse without permission.

Earlier, it was a myth that being in marriage or relationship could save the offender as it acted as a defence. But it is no longer any defence and the spouse can be dragged to court, also convicted for it. Such offenses can be committed by forcing the victim, luring, enticing, threatening or even by using the position of trust.

The offender can be anyone, including family members, friends and strangers too. And depending upon who does it there are two specific sexual offenses i.e. incest and spousal rape. These require a specific criminal act as well as intent like every other crime does.

Chapter 109A of US Code deals with sexual abuse. Sec 2241 of US Code Chapter 109A specifically deals with the aggravated form of sexual abuse. Moreover, the code gives attention to sexual abuse against minors. US Law also recognises repeated offenders and penalises them differently.

Different Sexual Offenses

Sodomy

It is that sexual offense which is made offense on religious grounds. Prior to 1962, sodomy was felony, then gradually it was protected and finally, it was struck down in Lawrence v. Texas.[1] In this case, the court ruled the criminal punishment for sodomy as unconstitutional.

Such sexual acts were protected under ‘Right to Privacy’ as was done prior in Roe v. Wade. By 2002, almost 36 states have either repealed the sodomy laws or the courts have overturned them.

Rape

Rape is defined as sexual intercourse or other forms of sexual penetration committed by the perpetrator without the victim’s consent. Earlier, rape was considered a capital offense.

It required evidence of the defendant’s force on the victim. Marital rape was not considered an offense in earlier times but got recognised subsequently. Rape and its elements will be discussed in detail in subsequent sub-headings.

Incest

It is the sexual activity between family members or close relatives. The law concerning the legality of incest vary significantly between jurisdictions, type of sexual activity, nature of the relationship involving as well as their age. In most of the states of US, sexual activity between a lineal ascendant and lineal descendant in penalised as incest.

While in other states, only incestuous marriage is prohibited. In some of the states, incest laws also apply to stepfather, stepmother, step-siblings, in-laws, people in adoption. It is generally graded lower than forcible rape or sexual assault because lack of consent is not required.

Rape

The word rape is derived from the Latin word rapere which means to seize. As already defined, rape involves a sexual activity by the perpetrator with the victim without consent. Before 1970, convicting with rape charges used to be difficult but thereafter, several charges were brought in which made it easier to convict the offenders.

The prominent changes were the creation of rape shield laws, eliminating the exemption of marital rape, eliminating the need to corroborate the rape victim’s testimony with the evidence.

There are two basic elements i.e. the act and the intent. The other two are causation and harm. The criminal act element of rape is sexual intercourse with threat or force. It can even be done by involving any dangerous weapon, suffocating or strangulating her or even putting the victim in imminent fear of death.

Rape in connection with burglary is also penalised.[2]. Moreover, the code also specified that it does not have to be a penile penetration. It can be by other body parts or objects.

The model penal code defines the criminal act as sexual intercourse which is inclusive of ‘intercourse per os or per annum.[3] This means the Model Penal Code includes oral as well as anal intercourse. Earlier it was believed that only men can be perpetrators and women are victims.

Although the threat is an indispensable part of a criminal act in rape, it can include such situations too where the victim is intoxicated, unconscious or at a very tender age. All these make the victim extremely vulnerable and Model Penal Code takes into consideration these conditions too.[4]

Elaborating the Use of Force and Vulnerable Position with Examples

  1. Rebecca was returning from the office at night and she booked a cab. The cab driver stopped midway and took out a knife. He threatened to kill her if she does not get undressed and involves in sexual activity. In this, the use of a knife to threaten Rebecca is considered the application of force.
  2. John and Ana were attending a party. John had already drunk a lot of alcohol and Ana administered him some drugs. After consuming it, John fell unconscious and Ana was involved in sexual activities with him. This is rape where the victim is in a vulnerable position.

The criminal intent element required is ‘knowingly performing acts’. In some states, negligent intent acts as a defence. It means that the victim did not resist and kept quiet which was mistaken as consent by the perpetrator. Also, it creates the defence of mistake of facts.

For successfully using this defence, the facts must show the defendant honestly believed that the victim gave consent to such sexual acts. The harm element in most of the jurisdiction is penetration, no matter how slight it is. Therefore it precludes virginity as a source of defence.

Rape Attendant Circumstance

‘Rape Attendant Circumstance’ element required for rape is the lack of consent by the victims. If this element is missing, then the victim’s consent can operate as an affirmative defence.

To prove the ‘lack of consent’ element, there are two components to be testified. The first one is that the victim should be capable of giving consent and secondly, consent if given was given involuntarily.

To prove the element of capability to give consent, it must be established that the victim is of the legally capable age, mentally fit, not under intoxication (permanent or temporary). If these are established, then the second component needs to be proved.

Otherwise, there would be no requirements of establishing a ‘lack of consent’. The second component further includes two different things. Involuntary consent can be of two types i.e. fraud in factum and fraud in the inducement. The former is due to the defendant’s fraud or trickery.

In this, the victim is generally unaware of the nature of the act of sexual intercourse. While the latter is fraudulently responsible regarding the situation in which sexual intercourse occurs. Like the false statement, ‘sexual intercourse will cure a medical issue.’

The prosecution generally proves that consent is involuntary by producing evidence of the victim’s resistance. In the circumstances of involuntary consent by force or threat, the victim is expected to resist to the same extent as a reasonable person would do under such circumstances.

However, the victim does not have to resist in those cases where he or she experiences fear of serious bodily injury or death.

Value Of Victim’s Testimony

At the early common law, the victim’s testimony was considered insufficient to prove the elements of rape inclusive of the lack of consent. Corroborative evidence had to be provided in support of the victim’s testimony. But the modern jurisdiction has done away with this system and allows the victim’s testimony alone to prove the elements of the rape (as was said in State v. BorthWick).

However, it is important to note that technically victim’s testimony need not be corroborated, but it is suggestible that the victim immediately reports the rape to authorities, submit to testing and provide relevant rape evidence.

Rape Shield Laws

Rape prosecutions can be extremely stressful for the victims. Specifically when there is consent defence by the defendant. That is why rape shield laws are framed in 1970 rape reforms. It prohibits the admission of the victim’s past sexual conduct to prove the consent element in the trial, except for when the judge allows an in-camera hearing.

It also grants several other protections to the victims in their rape trials. It allows for the exclusion of the victim’s dressing style to prove consent and many more such protection as is important for the victim’s dignity. Before these sets of laws came, the victims fearing humiliation kept the rape incident unreported.

However after these laws came, it became easier for the victims to report the cases as well as save themselves from humiliation. During the 1970s rape reforms, several states eliminated the exemption of spousal rape. But the Model Penal Code did not recognise spousal rape as a crime. Its link can be traced back to policy by Matthew Hale, which says –

“the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, wife hath give up herself in this kind unto her husband, which she cannot retract.”[5]

Conclusion: Sexual Offenses in United States

Like every other right, sexual rights are also vital. Though they are not explicitly mentioned as the other rights are, but the sexual offenses implicitly talk about such rights. There are several sexual offenses as are recognised by US. They are sodomy, rape, spousal rape, incest etc. Sodomy laws have been struck down by several states.

Rape is identified in every state and to make things simpler for victims, the rape shield laws were brought in several other reforms were introduced. Spousal rape is exempted by Model Penal Code, but certain states have expanded the view that one spouse can rape other. Incest is sexual activity among close relatives and some jurisdiction punishes it. There are specific sections that deal with sexual offenses in US.


Reference

[1] 539 U.S. 558 (2003).

[2] Md. Code Ann. S.3-303 , (2011)

[3] Model Penal Code s. 213.0 (2), (1962)

[4] Model Penal Code s. 213. 1(1) , (1962)

[5] Matthew Hale , History of Pleas of the Crown , p-629.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 2021-08-07T08:00:54+05:30
Nilanjana Banerjee

Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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