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A class of sexual conduct prohibited by the law.
Since the 1970s this area of the law has undergone significant changes and reforms. Although the commission of sex offenses is not new, public awareness and concern regarding sex offenses have grown, resulting in the implementation of new RULES OF EVIDENCE and procedure, new police methods and techniques, and new approaches to the investigation and prosecution of sex offenses.
Forcible Sex Offenses
Forcible rape and sodomy are sexual offenses that have been widely recognized since the beginning of American common law. Rape was defined as an act of forcible sexual intercourse with a female other than the perpetrator's wife. Modern legislation in the United States has expanded that definition to include the act of forcible sexual intercourse with any person, even the spouse of the actor. The offense of rape combines the crime of assault (fear of imminent bodily harm) with the elements of fornication (sexual intercourse between two unmarried persons) or adultery (sexual intercourse with someone other than the actor's spouse).
Sodomy is defined as anal intercourse but is often used in the law as a generic classification including bestiality (sexual intercourse with an animal) and fellatio and cunnilingus (two forms of oral sex). These forms of sexual conduct were outlawed because widely accepted religious beliefs and moral principles dictate that they are unnatural forms of sexual activity, often called "crimes against nature." Forcible rape and sodomy are generally perceived as similarly grave offenses.
Most state criminal statutes require some physical penetration in order to consummate the crime of rape or sodomy, but many statutes have a low threshold for demonstrating penetration, calling only for a showing of "some penetration, however slight." Completion of the sex act as evidenced by orgasm, ejaculation, or achievement of sexual gratification, however, is not required to prove a rape or sodomy case.
Most forcible sex offense statutes do require some forcible compulsion to submit and earnest resistance. However, courts will consider the circumstances of the attack, including the characteristics of the perpetrator and the victim, the presence of a weapon, threats of harm, and the assault itself, in assessing the victim's resistance. Statutes do not require victims to resist if to do so would be futile or dangerous.
Although modern statutes have eliminated the marital rape exception, some states still have some form of restrictions in the prosecution of the crime of marital rape. For example, some states will only prosecute marital rape claims if the couple is legally separated or have filed for divorce. However, due to legal criticism and growing public awareness of spousal abuse, the trend in the United States is toward the elimination of all exceptions to the prosecution of these crimes.
In the 1990s, the public became more aware of issues involving violence in the home among family members. Many studies showed that women are far more likely to be victims of violence at the hand of a husband or boyfriend than by a stranger. Victims of domestic violence or rape are believed to be reluctant to report these crimes for fear of continued or retaliatory violence. In response to these issues, Congress enacted the violent crime control and law enforcement act of 1994 (42 U.S.C.A. §§ 3796dd et seq.). One part of that act is the section entitled the Safe Homes for Women Act of 1994 (18 U.S.C.A. §§ 2261 et seq.). This section created new federal crimes and penalties for domestic violence.
Non-Forcible Sex Offenses
Non-forcible sex offenses include sexual conduct with individuals that the law assumes are not capable of giving consent to sexual acts. Because of this legal principle, it is said that in non-forcible sex offense cases, lack of consent by the victim may be a matter of law. In other words, statutes will assume that underage, physically helpless, and mentally incompetent victims are incapable of giving consent to sexual acts and will not consider consent as a valid defense to the crime.
The age at which criminal statutes acknowledge that an individual is capable of consenting to sexual acts varies by state. Most jurisdictions have special statutes for sex offenses committed with an underage victim, usually termed statutory rape laws. In some states non-forcible sexual acts with an underage individual are considered as serious as forcible sexual acts. In other states forcible sexual acts are deemed more serious and are punished more severely. Where the offense is committed forcibly with an underage individual, the more serious statute and punishments will apply. It does not matter if the perpetrator reasonably believed that the victim was of the age of consent because mistake of fact is no defense in a statutory rape case.
The law also considers physically helpless and mentally disabled victims to be incapable of giving consent to sexual acts. Physically helpless individuals include those who are unconscious, paralyzed, restrained, or otherwise incapable of resisting the sexual acts. Mentally disabled victims may include those who are permanently mentally disabled or those who are drugged and in a temporary state of mental disability. Some state statutes even include involuntarily intoxicated individuals in the category of temporarily mentally disabled victims. Although mistake of fact is no defense for sexual offenses with a minor, it is a defense for a physically helpless or mentally disabled adult victim if the perpetrator can show that he reasonably believed that the victim was not physically helpless or mentally disabled.
Fornication and Adultery Fornication (sexual intercourse between two unmarried persons) and adultery (sexual intercourse with someone other than one's spouse) are non-forcible sex offenses that have been recognized since early American common law. These acts are still unlawful under some state statutes. Fornication, however, has been eliminated as a criminal offense in most jurisdictions as a result of a more liberal view of the role of public law in mandating moral principles. However, neither fornication nor adultery is prosecuted with much regularity. The requirements of penetration that must be proved in other sexual offenses involving sexual intercourse also must be proved for fornication and adultery.
Consensual Sodomy Consensual sodomy statutes outlaw the act of sodomy even when it is consensual, meaning that it is accomplished without the use of force. The view supporting these statutes, which still exist in a minority of states, is that sodomy is an unnatural act, and when the act is consensual, all participants are guilty of wrongdoing. However, since the 1980s, most state courts have overturned consensual sodomy laws, calling them unconstitutional prohibitions of sexual conduct between two consenting adults.
The Supreme Court addressed the issue of the constitutionality of consensual sodomy laws in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). In Bowers two consenting men were found engaged in sodomy in a private home in a state that had an antisodomy law. The Supreme Court found no basis in the Constitution supporting the argument that homosexuals have a fundamental right to engage in sodomy. In 2003, however, the Court reversed its ruling in Lawrence v. Texas, 538 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). The situation of the case was similar to Bowers: two men were found having consensual sex in a private home by Houston police, who had been called to the residence on a reported weapons disturbance. The men were arrested because a Texas statute made it a crime for two people of the same sex to engage in "deviate sexual intercourse." In a 6–3 decision, the Court ruled that the Texas statute outlawing a same sex couple from having intimate conduct was unconstitutional under the Due Process Clause.
Polygamy polygamy, another non-forcible sex offense, is the crime of marrying more than one spouse while the marriage to a first spouse is still valid and existing. Bigamy is when a person has exactly two spouses at the same time. Bigamy per se consists simply of a person's attempt to marry another person while already married. Bigamy per se does not require a showing of living together as husband and wife or of sexual intercourse. Most statutes state that the person must know of the continued validity of the first marriage to be guilty of bigamy. Thus, if a woman reasonably believed that her husband was dead, which would have ended their marriage, she could marry another man without violating bigamy/polygamy statutes.
Indecent Exposure Indecent exposure, also called public lewdness, is the intentional exposure of one's genitals to unwilling viewers for one's sexual gratification. This crime is generally classified as a misdemeanor (a less serious crime).
Obscenity and Pornography obscenity and pornography are non-forcible sex offenses that have proven very difficult for the legislatures and courts to define. In miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court held that material is pornographic or obscene if the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest, that it depicts sexual conduct in a patently offensive way, and that taken as a whole, it lacks serious literary, artistic, political, or scientific value. The Supreme Court has also held that obscenity and child pornography are not protected by the First Amendment.
With the advent of new technology, the law has changed to address and encompass more methods of disseminating obscene and pornographic materials. For example, current laws forbid obscenity and pornography transmitted via television and cable television programs, telephone services, and the Internet.
The Internet in particular is one of the fastest-growing media for the transmission of information. Because the Internet is easily accessible to children as well as adults, many leaders advocate the restriction of obscene or pornographic material via the Internet. In 1996, Congress passed the Communications Decency Act (47 U.S.C.A. §§ 230, 560, 561), which made it a felony to place indecent or patently offensive material on the Internet that is accessible to children. However, this act came under fire almost immediately as violating the First Amendment. In 1997, the Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 1025, 117 S. Ct. 2329, 138 L. Ed. 2d 874, struck down the indecent and patently offensive provisions of the act as unconstitutional.
Another sex-related offense is incest (sexual intercourse with a close relative). Generally, laws against incest forbid sexual intercourse with those close relatives that the law forbids one from marrying.
Prostitution is another offense in and of itself, but that crime is often intermingled with other sex offenses, such as statutory rape or adultery where the prostitute or the john (the customer) is underage or married to someone else, respectively. Another criminal offense commonly charged in conjunction with other sex offenses is the offense of impairing the morals of a minor. Prosecutions for that offense are generally pursued when the evidence is insufficient to support a statutory or forcible rape or sodomy charge.
Child Sexual Assault
Child sexual assault, long considered to be one of the most horrific of sexual offenses, presents many difficult issues to courts and legislatures. One controversial issue is the balancing of the defendant's right to confront an accuser versus the need to protect child witnesses from undue trauma in facing their abusers. The Supreme Court has considered this issue in several cases. In Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), the Court held that it is a violation of the right of confrontation to allow a child victim to testify in court separated from the defendant by a screen. But in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the Court upheld the use of a one-way closed-circuit television to receive the out-of-court testimony of a child witness. In Craig the Court held that the defendant does not have an absolute right to confront his accuser face-to-face, especially where it is necessary to protect a child victim from trauma.
In 1990, in response to the alarming increase in reported child abuse cases, Congress enacted the Victims of Child Abuse Act, 42 U.S.C.A. §§ 13001 et. seq. It requires professionals who work with children to report all suspected cases of child abuse. It also amended the United States Criminal Code to ensure that the rights of children are protected in court proceedings. As a result, the Justice Department created model rules to guide law enforcement officers, investigators, prosecutors, and any person officially involved in a child abuse case, in the "proper and appropriate treatment of child victims and witnesses." For example, a child witness does not have to be physically present in an open court. He or she may present testimony via closed-circuit television or videotaped deposition.
Every state, and the District of Columbia, Puerto Rico, and the Virgin Islands have mandatory reporting statutes that require certain individuals who work with children to report suspected cases of child abuse or neglect. The general definition of child abuse is any non-accidental injury or pattern of injuries, including sexual molestation, to a child under the age of 18. The individuals who must report these cases include doctors, teachers, social workers, child care providers, and psychologists. In some states priests, ministers, coroners, and attorneys are included. Individuals who report suspected abuse or neglect, even if their suspicions turn out to be false, are protected by immunity against legal action as long as they acted in good faith. Reporters may also ask to be kept anonymous when making such allegations.
Prosecution of Sex Offenses
The prosecution of sex offenses differs in many respects from the prosecution of other crimes. The experience of the victim is very different from that of the victims of other crimes, the reaction of the police may be different, and sex offense prosecutions present many difficult issues. The Uniform Crime Reports and other national studies indicate that rape is the most underreported crime. Because of the victims' emotional trauma and the widespread bias in the legal system, whether perceived or real, many rape victims do not want to report the crime because they do not want to undergo the ordeal of testifying at the criminal trial.
Well-trained police officers are taught about the difficulties presented in sex offense investigations and prosecutions, including their own susceptibility to societal biases toward sex offenses. Some police departments have specially trained sex offense detectives, including female officers, who may reduce the amount of trauma victims undergo in reliving and recounting their injuries.
Investigators' biases may be manifested in several ways. They may disbelieve or doubt the victim, which may discourage the victim from cooperating with police investigations. In child sex offense cases, defendants often have argued that the police officers or prosecuting attorneys coerced or powerfully suggested certain facts until the child victim adopted them as real.
Prosecution of Non-Forcible Sex Offenses
Some non-forcible sex offenses have been called victimless crimes, because the victim has been difficult to identify. For example, in the case of prostitution, it is argued that neither the prostitute nor the customer is a victim because they each willingly enter into the agreement. However, some argue that society itself is the victim of such crimes. Others argue that the prostitute is in fact the victim, even though she willingly commits the act, and that statutes should protect the individual from herself.
Society's responsibility to protect individuals from themselves is the rationale accepted for non-forcible sex offenses involving minors. These statutes simply assume that minors are not able to make sound judgments for themselves. Similar theories support statutes prohibiting sexual conduct with mentally impaired individuals.
For other non-forcible sex offenses such as adultery or bigamy, statutes are based on the premise that society strives to protect families and their stability. However, such justifications are not as easily applied to the sex offenses of fornication and consensual sodomy.
Prosecuting attorneys have some discretion to choose which non-forcible sex offenses to prosecute. Where the constitutionality of a statute is at issue, such as statutes forbidding consensual sodomy, prosecutors generally choose not to enforce those statutes through prosecution. Adultery and fornication are other non-forcible sex offenses that are rarely prosecuted.
Private individuals who are not the victims of the particular sex offense, whether forcible or non-forcible, do not have a legal right of action against the offender. Prosecuting attorneys carry out the public function of pursuing criminal complaints against sex offenders on behalf of the people of the state.
Many statutes making sexual conduct criminal have been attacked as unconstitutional. The most common claims made are that the statutes are too vague, violate personal rights to privacy, or violate the Equal Protection Clause.
The Supreme Court considered the argument that statutes violating sodomy are unconstitutionally vague in Rose v. Locke, 423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975). The Rose case involved a state statute that forbade "crimes against nature," and the defendants argued that the terms of the statute were imprecise and vague. The Supreme Court held that the statute did not violate the Constitution because even though the language may have been imprecise, it was still possible to determine the meaning of the statute so as to provide sufficient warning to people who may be affected by it. Courts have held that "crimes against nature" include sodomy, fellatio, and cunnilingus.
Statutes forbidding obscene language or conduct have also been challenged because they are vague. Specifically, critics claim that it is not clear what is considered obscene. State legislatures have attempted to define or describe the term obscene, but this often results in the use of other arguably vague terms such as lewd, lascivious, and wanton.
Sex offense statutes have also been challenged on the ground that they violate an individual's right to privacy. The Supreme Court addressed this argument in the 1986 case of Bowers v. Hardwick, when it held that there is no federal privacy right to engage in same-sex acts. Since Bowers many state courts issued similar rulings. However, the Supreme Court, in its 2003 landmark Lawrence decision, changed the landscape. According to the Court, private conduct is protected under the Due Process Clause, and as such, Bowers "should be and now is overruled." In his opinion, Justice Anthony Kennedy stated, "The petitioners are entitled to respect for their private lives."
Sex offense laws have also been challenged on the ground that they violate equal protection guarantees under the Constitution. Most courts have followed the Supreme Court's decision in Michael M. v. Superior Court, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981), that they do not.
The Michael M. case involved a state statutory rape law that prohibited sexual intercourse with a woman who is under 18 years old and who is not the perpetrator's wife. Thus, only males were liable under the law. The defendant was a 17-year-old boy who had sexual intercourse with a 16-year-old girl. The defendant argued that the statute violated the Equal Protection Clause of both the federal and state constitutions. The Supreme Court held that the "obviously discriminatory classification" was justified by the important state interest in protecting women who, unlike men, can become pregnant and suffer the harmful and inescapable consequences of pregnancy. It has also been held that non-statutory rape laws do not violate the Equal Protection Clause in the following cases: State v. Kelley, 111 Ariz. 181, 526 P.2d 720 (1974), cert. denied, 420 U.S. 935, 95 S. Ct. 1143, 43 L. Ed. 2d 411 (1975); Wilson v. State, 288 So. 2d 480 (Fla. 1974); State v. Lorenze, 592 S.W.2d 523 (Mo. Ct. App. 1979); State v. Rivera, 62 Haw. 120, 612 P.2d 526 (1980); Griffin v. Warden, 277 S.C. 288, 286 S.E.2d 145 (1982).
A modern and revolutionary means of identifying criminal defendants in sex offense cases is the use of dna evidence, often called DNA fingerprinting. Most of the cells of the body and bodily fluids contain a copy of the individual's DNA. Because every person has unique DNA (with the exception of identical twins) it can be used as reliably as a fingerprint in identifying someone. The Florida District Court of Appeals, in Andrews v. State, 533 So. 2d 841 (1988), review denied, 542 So. 2d 1332 (1989), was the first appellate court in the country to uphold the admissibility of DNA evidence in a criminal case. The Andrews case involved DNA testing of semen left at the crime scene that matched the DNA of the defendant. The court permitted the admission of the DNA evidence on the ground that it was considered scientifically reliable. Most states now permit such evidence to eliminate an individual from the list of criminal suspects.
DNA testing has also been used to examine evidence from crime scenes gathered years before DNA testing was available. These tests have been successful in many post-conviction proceedings to show that the individual convicted and incarcerated was not the actual offender. Thus, DNA evidence has secured the release of many innocent people.
DNA evidence has been successfully challenged based on the laboratory's methods of running or performing the DNA tests. Human error can render unreliable results and make the basis for a challenge to such evidence in any trial. These attacks generally affect the weight of the evidence but usually do not make the evidence inadmissible.
Rape Shield Laws
Rape shield laws are state statutes that restrict the admission of a rape victim's sexual history into evidence in rape trials. British and American common law routinely admitted evidence of a rape complainant's past sexual history. It was believed that this evidence could bear adversely on the complainant's credibility as a witness. In addition, courts adhered to the belief that if a woman had consented to sexual activities in the past, it was an indication that she was more likely to have consented to the sexual acts alleged.
Rape law reform gathered momentum in the 1970s and resulted in the enactment of rape shield laws in every jurisdiction in the United States in little more than a decade. Some states enacted special laws and other states amended their existing evidentiary rules to greatly restrict evidence of a rape victim's sexual history. However, there are several general exceptions in which such evidence is deemed relevant and thus admissible.
If the prosecution raises the issue of the complainant's physical condition, by arguing that the defendant was the source of pregnancy, sexually transmitted disease, or semen found on the complainant, the defendant may bring up the complainant's sexual history to show that another man was the actual source. Defendants may also introduce such evidence to show the complainant's modus operandi (method of operating), most commonly used to demonstrate that the complainant regularly exchanged sexual favors for money; in other words, that she was known as a prostitute.
Another exception to most rape shield laws is using past sexual history of the complainant's sexual relations with the defendant to show that if she consented in the past, she was more likely to have consented on the occasion in which she alleges rape. Some states also permit evidence of prior sexual history to show that the defendant was informed of something that led him to believe that the complainant would readily consent to sex, thereby negating the defendant's mens rea (criminal intent) necessary to convict him. Past sexual history can also be introduced like any other evidence where it contradicts the witness's previous testimony, showing that the witness has been untruthful when testifying under oath.
Evidence that a complainant has previously fabricated sexual assault charges is also generally admissible to impeach the complainant's credibility as a witness. Finally, past sexual history may be admitted into evidence to show the complainant's motive to testify falsely. For example, a complainant may be trying to explain a pregnancy or hide the fact that she had sex with someone other than her boyfriend.
HIV and AIDS
Like other areas of law, sex offense law has been affected by the health concerns related to the human immunodeficiency virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) epidemic.
In 1990, Congress passed the Ryan White Comprehensive AIDS Resource Emergency Act (42 U.S.C.A. §§ 300ff et seq.), which requires states to prosecute people who knowingly or intentionally expose others to the virus through sexual contact, blood or tissue donations, or sharing of hypodermic needles. States must do so in order to be eligible for federal grant money.
Some states have used traditional criminal statutes to prosecute such offenders, by charging them with attempted murder or assault. For example, in State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989), the defendant was convicted of attempted murder for biting, scratching, spitting, and throwing blood on others with the intent to infect them with his HIV condition. In Zule v. State, 802 S.W.2d 28 (Tex. Ct. App. 1990), the court upheld the conviction of aggravated sexual assault and transmission of HIV where the defendant, who knew that he was HIV positive, engaged in sodomy with a 15-year-old boy who, two years later, tested positive for HIV.
Approximately half of the states have specific statutes that address the crime of knowingly transmitting HIV through sexual and other conduct. For a defendant to know that he is HIV positive is enough to establish intent under these statutes. Many of these statutes forbid "intimate contact" or conduct reasonably likely to result in the transmission of "bodily fluids." These statutes have withstood constitutionality challenges that they are vague (People v. Dempsey, 242 Ill. App. 3d 568, 610 N.E.2d 208 ; People v. Russell, 158 Ill. 2d 23, 630 N.E.2d 794 . Consent is generally a defense to these crimes; however, lack of medical evidence supporting a likelihood of transmission or a lack of actual transmission of the disease is not a defense.
Another legal development that has arisen over the public concern about HIV and AIDS is mandatory AIDS testing of accused and convicted sexual offenders. In 1990, Congress passed the Crime Control Act (42 U.S.C.A. §§ 3756 et seq.), which requires HIV testing of sex offenders when specifically requested by a victim of sexual assault. In response, most states enacted laws requiring individuals accused of certain crimes to be tested for AIDS. Some states mandate pre-conviction testing; others require post-conviction testing. In some states, testing is permitted if the alleged victim can demonstrate a compelling need to have the test results.
These laws have been challenged in the courts on the grounds that they violate privacy rights, Fourth Amendment rights against unreasonable searches, and the presumption of innocence of criminal defendants. Most courts have rejected such claims based on the Supreme Court's decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), that a routine blood alcohol test is not a substantial intrusion into one's bodily integrity. Reasoning by analogy, most courts have held that a blood test for AIDS, where necessary to further an important government interest in the health and safety of the victim, is constitutional.
Sexual Psychopath Legislation
Approximately 20 states have statutes that address dangerous sex offenders and sexual psychopaths. These statutes are designed to protect public safety by removing habitual sex offenders from society for extended periods of time. Criminal defendants treated differently from others based on their classification as sexual psychopaths have challenged these laws, arguing that they violate the Equal Protection and the Due Process Clauses, but the laws have withstood such challenges (Kansas v Hendricks, 521 U.S. 346 ; Seling v. Young, 531 U.S. 250 ).
These statutes require that the court must specifically find that the sex offender suffers from mental illness that leads to sexually deviant behavior, and that the behavior is likely to continue in the future, in order to classify the offender as a sexual psychopath. These statutes also permit the state to retain custody of the sexual psychopath, or sexually dangerous person, until he or she is cured of the mental illness. In effect, this allows the state to impose an indeterminate, and often lifetime, sentence.
Sex Offender Registration and Community Notification
Because of growing public concern, since the 1980s, over recidivism (repeated offenses) among sexual offenders, all states have enacted sex offender registration acts. In 1994, Congress passed legislation that required states to enact such laws in order to receive certain federal funding (42 U.S.C.A. § 14071).
Although these laws vary in scope and effect, they share the common goal of protecting the public by requiring repeat sex offenders to register their names and addresses with local law enforcement officials. Some statutes allow the public to have access to this information. Other statutes, commonly called community notification laws, mandate that all residents in a certain geographic area be notified before a convicted sex offender moves into their neighborhood.
There have been numerous constitutional challenges to sex offender registration acts; however, most courts have found no constitutional violations. Specific attacks that have been unsuccessfully made include the arguments that the statutes constitute cruel and unusual punishment, they are ex post facto laws (laws that retroactively punish behavior), they are bills of attainder (acts of the legislature to impose punishment without a court trial), they constitute double jeopardy (multiple prosecutions for the same offense), or they violate the offender's right to privacy.
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