Even though sexual battery concerns the basic allegation of rape, it is prosecuted in many forms. Any criminal defense lawyer who represents someone accused of sexual battery must first determine what kind of sexual battery case his/her client is facing.
Sexual Battery – Victim 12 Years of Age or Older
When the prosecution charges a person with sexual battery on a victim 12 years of age or older, it must prove the following legal elements beyond a reasonable doubt:
- That the victim was 12 years old or more.
- That the defendant committed a sex act with/upon the victim that included the penetration/union of the defendant’s sex organ(s) with the victim’s anus, vagina, or mouth, orThat the defendant committed a sex act with/upon the victim during which the victim’s vagina or anus was penetrated by an object.
- The sex act committed by the defendant was done without the victim’s consent.
As you can imagine, the above listed legal elements describe the crime that is most commonly referred to as “rape.” In these types of cases, the allegation focuses on the victim’s lack of consent for the sex act in question. A lack of consent can have many degrees and come in many forms.
In some cases, the victim gives consent for one sex act, but not another. For example, a victim may consent to having her vagina or anus touched, but may not consent to sex. In other cases, a victim may give consent for the sex act, but then revoke such consent at a later time. In these cases, two people may begin a sex act when one becomes uncomfortable, changes their mind, or simply wishes to stop for whatever reason. If the other keeps going and forces the other to continue against their will, this can be a sexual battery.
Of course, the classic case of rape is when the defendant and the victim are complete strangers and the victim did not consent to any kind of contact with the defendant whatsoever.
Regardless of the type of consent case at issue, consent is legally defined to mean voluntary, knowing, and intelligent consent and does not include coerced submission. The law is also very clear to mention that a victim does not need to physically resist the defendant in order to communicate a lack of consent.
However, it is important to note that unlike sexual battery on a victim under 12 years of age, consent can be a defense when the victim is over 12 years of age. In other words, if the defendant is able to prove that the victim consented or that there is a reasonable doubt about the lack of consent, your jury may be convinced to vote not guilty.
This does not mean that a person can have sexual contact with someone 12 years of age or older but younger than 18. It simply means that they cannot be prosecuted for the offense of sexual battery – victim 12 years of age or older. There are other crimes for having sex with those 12 years of age or older but younger than 18. For example, a person may be charged with Unlawful Sexual Activity with Certain Minors (sex with minors aged 16 or 17) or Lewd and Lascivious Battery (sex with minors 12 years or older, but younger than 16).
The reason for these distinctions will be discussed in greater detail later on. Most importantly, there is a big difference in the penalties one may face. As you can imagine, the younger the victim, the worse the offense and therefore the more severe the penalty.
In the coming sections we will elaborate more on the concept of consent and its role in a sexual battery case for both the prosecution and the criminal defense lawyer.