Sex Offenses

Author:Jeffrey Lehman, Shirelle Phelps

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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

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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

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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 enactment of state and federal sex offender notification and registration laws came at a furious pace in the 1990s and has continued through the 2000s. Legislators and their constituents have endorsed notification and registration as simple but effective ways of protecting public safety. Even though support for such laws has been over-whelming, concerns have been raised by some legal commentators that these laws invade the privacy of released sex offenders and make it difficult for them to rebuild their lives.

Defenders of these laws note that requiring released offenders to register with the police is an easy way for police to keep tabs on potentially dangerous persons. With the release of large numbers of sex offenders into the general population, public safety demands that the police know where these potentially dangerous persons live. In the event of a new sex offense, the police have the ability to round up possible suspects quickly. Registration also gives police in nearby towns and cities the opportunity to share information on suspects and to help locate suspects for questioning.

The law's proponents believe, however, that notification is the most important element. Prior to the passage of MEGAN'S LAW in New Jersey, as well as similar laws throughout the United States, citizens did not know when a released sex offender moved in next door or down the block. Because certain sex offenders are likely to commit criminal acts again, no notification means that offenders can use their anonymity to help conceal their criminal pursuits. Community notification laws rob the released offender of anonymity by letting neighbors know the offender's criminal history and his place of residence. Public safety is enhanced, and, armed with this information, neighbors can be on guard and assist in the monitoring of the released offender's activities.

Communities also use notification to prevent a released offender from moving into the neighborhood. Once a public hearing is held and information is distributed, landlords often become reluctant to rent housing to a person who makes community members apprehensive. Even if the released offender does move into the community, the person will be isolated from his neighbors. Communities are therefore empowered to take control of their neighborhoods and assert their right to safe and secure homes.

Defenders of these laws agree that registration and...

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