Sexual assault occurs when someone touches another person in a sexual way without their consent. While such actions generally involve force, threat of force, or violence, it is important to understand that those factors need not be present to constitute sexual assault. Additionally, while sexual battery requires penetration, the crime of sexual assault does not.
Sexual assault is made illegal under federal law. Moreover, each of the states has laws criminalizing sexual assault; as a result, there is variation among the states concerning how to treat sexual assault. Some state laws consider sexual assault to be aggravated assault if force or violence causes bodily harm or injuries to the victim. Aggravated assault is generally punished with harsher penalties than sexual assault, including lengthier prison sentences.
Sexual assault happens when any sexual activity occurs without clear consent from both parties. Sexual assault laws forbid sexual activity with a person who is unable to consent. This would include people who have a mental illness, are under the age of 18, or are intoxicated. Some specific examples of the many activities that would be considered sexual assault include:
- Rape
- Molestation
- Forced sodomy
- Incest
Is Sexual Assault a Criminal or a Civil Crime?
Sexual assault, as well as sexual battery, can be tried as both a criminal and a civil crime. When sexual assault is tried as a criminal matter, the result for the defendant can be incarceration, significant fines, or both.
When sexual assault is tried as a civil suit, the goal is to obligate the defendant to pay for any expenses the plaintiff suffered because of the sexual assault, such as medical treatment or lost work days. The victim can also request an award of money for pain and suffering.
What Does “Sexual Touching or Contact” Include?
In a legal context, sexual touching or sexual contact is defined as the “knowing, purposeful touching of an intimate or private part of another in order to arouse sexual desire.” Touch may be accomplished either directly to the person’s body or through their clothing.
An example of an act that constitutes sexual touching would be inappropriately grabbing someone’s genitals. This is true even when their clothes cover the area. Other examples include kissing someone without their consent or threatening unwanted sexual conduct.
It is important to note that there are some situations in which touching or contact involving another person would not count as sexual assault. One key exception is the “medical personnel exception.” If a medical person is performing a clinical examination of a patient, any touching of the patient’s private parts would not be considered contact of a sexual nature.
The medical personnel exception does not apply if a person falsely represents themselves as a medical professional. This also would not apply when an actual medical professional touched someone inappropriately, outside the scope of the medical treatment.
Another notable exception is the parental exception. If a child’s parent is performing necessary domestic functions, such as changing a diaper or giving a bath, then any touching of a child’s private parts would not be considered contact of a sexual nature. However, if the touching is not being performed for the necessary care of the child, then the touching could rightfully be considered sexual assault and child abuse.
What Is a Sexual Assault Policy for Schools?
Federal law requires all institutions of higher learning, such as universities or colleges, to have a sexual assault policy in place. The policy must describe how the institution will address particular reports of sexual assault, as well as the general steps the school will take to protect its students.
To maintain federal funding and remain in compliance with federal law. Additionally, they must appropriately and adequately address any issues that may deny their students access to education.
In 2018, the Department of Education Office of Civil Rights investigated roughly 60 universities whose sexual assault policies were considered to be inadequate and were possibly in violation of Title IX. Title IX is a federal law abolishing gender discrimination in public schooling. Title IX states that:
No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
According to Title IX, a university deprives a person of free and equal access to education based on sex by:
- Shaming the victim
- Failing to investigate sexual assault claims adequately
- Improperly handling sexual assault claims
- Failing to enforce their sexual assault policy to the letter
- Making exceptions for particularly wealthy or notable students, staff, faculty, etc.
- Not taking adequate measures to protect individuals from sexual harassment, rape, or other crimes of sexual violence.
According to Title IX, the school must conduct a prompt investigation and take appropriate measures if a complaint is made. The same is true if the school if no complaint is filed, but the university becomes aware of an instance of sexual violence. Failure to adhere to this law could result in the university facing a civil lawsuit, monetary damages, and equitable remedies.
If the school refuses to cooperate with those who have concerns regarding Title IX and sexual assault policies, there are a few agencies that should be contacted. These agencies include:
- District officials, such as superintendents
- The Department of Education’s Office of Civil Rights
- University officials, such as the dean
The Department of Education conducts investigations into possible discrimination practices, as well as failure to provide a safe and equitable learning environment.
Are There Any Defenses for Sexual Assault?
In terms of personal responsibility, there are some defenses available for individuals charged with sexual assault. The most common examples would be:
- Actual innocence
- The prosecution or the court suppressed key evidence concerning the defendant’s culpability
- The alleged victim consented to the behavior or act(s)
- The defendant had a mental incapacity that caused them to act inappropriately
- Insanity
In terms of public schools failing to establish or adhere to an adequate sexual assault policy, there are very few defenses available. All schools know Title IX and what that entails for their institution. One defense that a school may have would be that they were not aware of the instance of sexual assault and, therefore, could not take action according to their policy.
Do I Need an Attorney for Issues Involving a Sexual Assault Policy?
If you have been a victim of any type of sexual assault, you should immediately speak with an assault attorney in your area. You should also consult with an attorney if you feel that you were treated improperly by an investigating agency or that an investigation was poorly conducted.
An experienced local criminal defense attorney would be best suited for understanding your state’s specific laws regarding sexual assault. Your attorney can communicate with the proper authorities and file a lawsuit. Your attorney can also represent you in court if necessary.
If you are a person needing to draft a sound and comprehensive sexual assault policy, you should consult with a knowledgeable attorney who has experience in such matters. You must draft a policy that clearly states that sexual assault is not tolerated and that the policy will be given full effect.
