53 RI Bar J., No. 5, Pg. 5 (March/April 2005). Surveying Sex Crimes Law In Rhode Island.

• Author: Robert H. Humphrey, Esq.

Rhode Island Bar Journal

Volume 53.

53 RI Bar J., No. 5, Pg. 5 (March/April 2005).

Surveying Sex Crimes Law In Rhode Island

March/April 2005pg. 5Surveying Sex Crimes Law In Rhode IslandRobert H. Humphrey, Esq.Robert H. Humphrey, Esq. practices from the Law Offices of Richard S. Humphrey in Tiverton.

The phrase, sex crimes, encompasses a broad range of divergent crimes. More than any other type of crime, sex crimes invoke a strong emotional response. For most people, these are difficult crimes to comprehend or to discuss in detail. This article serves as a broad survey of crimes that may be categorized as sex crimes. This survey is neither all-inclusive nor authoritative. This survey's purpose is to provide a reference for practitioners to use when performing more detailed research of a particular offense.

1. Sexual Assault

   1. R.I. Gen. Laws 11-37-2: Definition of guilt of first degree sexual assault.

      A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person and if any of the following circumstances exist:

      1. The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless;

      2. The accused uses force or coercion;

      3. The accused, through concealment or by the element of surprise, is able to overcome the victim; or

      4. The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation.

   2. R.I. Gen. Laws 11-37-3: Penalty for first degree sexual assault.

      Every person who commits sexual assault in the first degree shall be imprisoned for a period not less than ten (10) years and may be imprisoned for life.

      1. Superior Court Sentencing Benchmarks: One count with no injury - ten to fifteen (10 to 15) years; multiple counts with or without injury - fifteen to twenty-five (15 to 25) years; one count or multiple counts with aggravating circumstances including, but not limited to, excessive force or violence; the act having been committed in conjunction with other crimes; moderate to severe injury, mental or physical; or perpetration of acts which are particularly degrading or humiliating to the victim - over twenty (20) years.

   3. R.I. Gen. Laws 11-37-4: Definition of guilt of second degree sexual assault.

      A person is guilty of a second degree sexual assault if he or she engages in sexual contact with another person and if any of the following circumstances exist:

      1. The accused knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless;

      2. The accused uses force or coercion; or

      3. The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation.

   4. R.I. Gen. Laws 11-37-5: Penalty for second degree sexual assault.

      Every person who commits sexual assault in the second degree shall be imprisoned for not less than three (3) years and not more than fifteen (15) years.

      1. Superior Court Sentencing Benchmarks: One count touching/

      groping over clothing - less than jail; multiple counts touching/groping over clothing in same incident - less than jail; multiple counts touching/groping over clothing - one to three (1 to 3) years; one or multiple counts touching/groping under clothing - two to five (2 to 5) years; one or multiple counts touching/groping under or over clothing with aggravating circumstances - five to fifteen (5 to 15) years.

   5. R.I. Gen. Laws 11-37-6: Definition of guilt of third degree sexual assault.

      A person is guilty of third degree sexual assault if he or she is over the age of eighteen (18) years and engages in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, sixteen (16) years of age.

   6. R.I. Gen. Laws 11-37-7: Penalty for third degree sexual assault.

      Every person who commits sexual assault in the third degree shall be imprisoned for not more than five (5) years.

      1. Superior Court Sentencing Benchmarks: Less than jail to five

      (5) years, depending on age difference between perpetrator and victim and the presence or absence of aggravating circumstances.

   7. R.I. Gen. Laws 11-37-8: Penalty for assault with intent to commit first degree sexual assault.

      Every person who shall commit assault with intent to commit first degree sexual assault shall be imprisoned for not less than three (3) years or more than twenty (20) years. According to the above statutes, what distinguishes first degree sexual assault from second degree sexual assault is "penetration" as opposed to "sexual contact." What distinguishes third degree sexual assault from first degree sexual assault is the age and consent of the parties. The following cases help to define the terms of "penetration," "force and coercion," and "consent."

      In State v. Golden, (fn1) the defendant was convicted of common-law rape (former § 11-37-1) and assault with a dangerous weapon. "Common-law rape is the act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the victim's resistance is overcome by force or fear, or under other prohibited conditions. There can be no question that penetration is an element of the crime of rape and that this element must be proven beyond a reasonable doubt. However, it is well settled that penetration may be proven by circumstantial evidence." (fn2)

      In State v. Carvalho, (fn3) the Supreme Court held the following:

      Today the law does not expect a woman, as part of her proof of opposition or lack of consent, to engage in heroics when such behavior could be useless, fruitless, or foolhardy. Fighting to protect one's virtue can be a risky business. All that is required is that the woman offer such resistance as seems reasonable under all the circumstances. State v. Verdone, 114 R.I. 613, 621, 337 A.2d 804, 810 (1975). Resistance to the best of one's ability, in our opinion, is synonymous with the phrase "offer such resistance as would appear reasonable under the circumstances." An analysis of Verdone clearly indicates that resistance is a relative concept. A variety of factors must be considered, such as the comparative strength of the parties, the age and condition of the victim, and the degree of force exhibited by the assailant. If the woman believes that the resistance will lead to her being seriously injured, she is not required to test out this theory by screaming out or exhibiting force against the attacker.

      The evidence presented here was more than sufficient to support a finding that the prosecutrix did resist Carvalho's advances to the best of her ability. She testified that upon being grabbed from behind, she screamed for someone in the house before Carvalho clapped his hand over her mouth. He threatened to kill her if she made any noise. The force with which she was pulled off the porch and along the driveway and into the yard against her will is further substantiated by the police officer's discovery of a sock and shoe located approximately 5 feet apart on the driveway leading to the yard. The abrasions found on the victim's elbows, knees and sacral area are a further indication of the predatory conduct exhibited by Carvalho. (fn4)

      In State v. Babbitt, (fn5) the Supreme Court held that the repealing by the Legislature of the common-law rape statute and the reenacting of the statute as the sexual assault statute did not intend to pardon violators of the old statute. "Every element needed to prove a violation under the old statute for rape is also needed to prove first-degree sexual assault under the new statute. The new statute merely expands the meaning of sexual penetration by force to include, in addition to sexual intercourse, the intrusion of any part of a person's body into the genital or anal openings of another person's body." (fn6)

      In State v. Jacques, (fn7) the defendant was convicted of first degree sexual assault which statute requires use of force or coercion before penetration. "Proof of force beyond that which is used in the consummation of the act is required to sustain a conviction for first-degree sexual assault." "We note that the type of penetration is unimportant under the sexual-assault statute. The fact that only digital penetration occurred does not lessen [the victim's] fear and humiliation [or violation of her bodily integrity]." (fn9) Later, in Jacques v. State, (fn10) the Supreme Court held that the definition of "sexual penetration" required for first degree sexual assault through use of force or coercion was unambiguous and specific for the act of penetration. That statute defines sexual penetration as "sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any object, by any part of a person's body or by any object into the genital or anal openings of another person's body, but emission of semen is not required." (fn11)

      In State v. Burke, (fn12) the defendant was convicted of two counts of first degree sexual assault when the defendant used his position of authority as a uniformed police officer to intimidate the victim, an alcoholic young woman, into performing oral sex upon him. The Supreme Court held "the defendant's position of authority, in and of itself, carries with it an implied threat. . . An implied threat is as effective as a stated threat, sometimes even more so, especially when the apparent ability to carry out the threat is...