Sexual offenses are among the most serious crimes in Virginia and across the country, and aggravated sexual battery is easily among the most serious sex crimes. This offense involves sexual abuse of a minor (below 13 years old) or of a mentally incapacitated or physically disabled person, or the use of force or threats to commit incest (if the offender is a parent, grandparent, step-parent, or step-grandparent) with a minor who is above 13 years of age. Rest assured, Virginia Criminal Attorney is well equipped to handle aggravated sexual battery cases for Fairfax, Virginia, and Northern Virginia clients.
Legal Definition of Aggravated Sexual Battery
Virginia code 18.2-67.3, aggravated sexual battery, involves unlawfully touching the intimate parts of another person against his or her consent for the purpose of sexual abuse. The act must be facilitated by aggravating factors that are determined by the age of the victim, the mental and physical condition of the victim, the use of force or threats, or the presence of a weapon. For instance, a person would be violating the statute if the victim is below 13 years old or if the complainant was mentally or physically incapacitated. The statute also covers victims between 13 and 15 years old who are sexually abused through intimidation or force, and victims who incur serious body injuries.
This offense is enforced as a statutory charge in Virginia. This means that an individual would be charged provided that the victim is below the age of consent. Additionally, the charges apply regardless of whether the victim consented or initiated the sexual act. Furthermore, the punishments are enforced on the felony level.
Prosecutor’s Proof for Aggravated Sexual Battery
The prosecutor must prove the following elements for the aggravated sexual battery charges:
- The complaining witness was sexually abused by the defendant while under the age of 13 years.
- The complaining witness was mentally incapacitated or physically disabled.
- The defender was a parent to the complainant, a step-father/mother or a grandparent, and the complaining witness was at least thirteen years old but not more than eighteen years; OR
- The act was forceful and accomplished through threats, against the will of the victim. In this case, the victim would be at least age thirteen but less than fifteen, have incurred serious physical or mental injuries, or the defendant must have been in possession of a deadly weapon which was used in a threatening way.
Further, an individual is likely to be charged with aggravated sexual battery if: (a) Within a period of two years, he/she is found guilty of intentional sexual abuse to one or more complaining witnesses; (b) He/she was employed at a mental or correctional facility where the complaining witness is confined, and knowing the witness’s physical and/or mental state, went ahead to sexually abuse the person.
How Is Aggravated Sexual Battery Charged?
Sexual battery is a first class misdemeanor. However, even the attempt to commit aggravated sexual battery is a sixth class felony crime. Also, an individual infected with HIV or other deadly diseases such as syphilis should disclose such status prior to a sexual act. Upon failure to do this, one stands to be charged with a first class misdemeanor. Consequently, if the defendant knowingly and intentionally infects the complaining witness with deadly diseases such as HIV, syphilis, or any other disease through sexual intercourse, he/she is guilty of the sixth class felony. Such individuals should, under the appropriate jurisdiction, will be tested for STDs before the prosecution can assert such allegations.
When the defendant has prior convictions that are similar to an aggravated sexual battery, and in addition to code 18.2-67.3, authorization of maximum sentencing should be pursued. If the defendant plead guilty to the prior crime and/or the jury established that they are guilty of the offense, then no section of the charges should be suspended. In general, repeat sexual assault shall be categorized as felony charges. For an individual who committed an offense less than twenty years before a second offense while in the commonwealth, a written notification should be sent to the defendant at least 30 days before the trial. The commonwealth will notify the defendant of how it intends to punish him/her pursuant to the provision of the law.
Hearings/Trials
The court allows the defendant, complaining witness, relevant witnesses, and the jury to take part in the evidentiary hearings. The evidence provided by the prosecution should not be admitted into court until the jury determines its admissibility during an evidentiary hearing, which is usually held before the introduction of evidence in the preliminaries.
If the accused is charged with felony aggravated sexual battery with a child, evidence from other sexual offense convictions committed by the defendant are admissible and considered to bear on relevant matters of aggravated sexual battery.
Before the hearings start, the Commonwealth must provide the defendant with certified photocopies of the orders it intends to introduce. The inclusions in the certified copies include: each prior conviction date, name and court jurisdictions where the convictions were obtained, and the offense committed by the defendant.
According to Virginia law provisions, criminal proceedings, as well as preliminary hearings of the alleged offense involving a child and in violation of state sex laws, should be applied for by the prosecution at least a week before the hearing is to proceed. During the preliminary hearing, the court may accept to support the complaining witness through a motion or a Commonwealth request. This provision is relevant only if the complaining witness was fourteen years of age during the incidence and now sixteen during the trial, or if a complaining witness is fourteen years old during the trial.
For aggravated sexual battery involving murder against victims of any age, the Commonwealth or defense attorney has the right to request an out-of-courtroom hearing if the complaining witness is a child. The testimony would be televised into court. This occurs if the child:
- won’t be available to testify openly in court before the defendant and jury, after refusing the request to testify,
- is unable to talk about the offense, or
- would undergo mental torture and trauma while testifying.
The unavailability of the child should be supported by the court findings either written or recorded. Only those within the view of the open circuit television camera should be allowed to be in the testimony room with the child. In addition, any individual who, through the court’s determination, will positively impact the child and their well-being are allowed in the testimony room. In televised testimonies, the defense and the Commonwealth attorneys are always present when the child testifies. The child is cross-examined directly before testifying.
Penalties for Aggravated Sexual Battery
Virginia laws require that aggravated sexual battery be treated as a statutory charge. A felony aggravated sexual battery is punishable for a maximum period of twenty years in prison. Additionally, the perpetrator would face a maximum fine of $100,000. This crime, sadly, commonly occurs in a family setting where parents or step-parents intimately touch a child under their care. A similar incidence occurs in institutions where the child undergoes molestation from the caregivers.
Sexual penetration by use of a foreign object, under Virginia code 18.2-67.2, can be charged as aggravated battery. The defendant will be found guilty of inanimate sexual penetration when they use objects to penetrate the intimate parts of the witness regardless of whether they are spouses, or if the complaining witness is below thirteen years old. Other elements such as the use of force or mental/physical incapacitation also apply for this charge.
Sexual penetration by an object is a felony and the offender can be confined for their entire life, though the minimum is five years of incarceration. Additionally, if the defendant is older than the complaining witness, they are mandated for a minimum confinement of 25 years to life. These confinement violations should be served along with other consecutive sentences. However, if the defendant is not confined for life, the judge, in addition to the ongoing sentence, shall impose a 40 years suspension sentence. This will be effective for the rest of the defendant’s life unless it is revoked by the court.
For spouses, the imposition of the suspension (as a result of violation of aggravated sexual battery) commences after the defendant has completed therapy and/or counseling as required by the law. The counseling therapy applies if the court determines that it would be useful in the maintenance and unity of the family and in the complaining witness’ interest.
Aggravated Sexual Battery Related Offenses
Several offenses could be charged alongside aggravated sexual battery or as alternatives to this offense. Even though these offenses involve sexual acts, their prosecution varies depending on the different crime elements.
Sexual battery
Under the Virginia sexual laws, sexual battery involves the unlawful touching of one’s intimate body parts (groin, breast, anus, buttocks) without consent, with an intention of satisfying sexual needs, sexual gratification, arousal, or abuse. Sexual battery charges apply regardless of how slight the penetration was. Consequently, a simple touch on an individual’s intimate part without their consent can lead to sexual battery charges.
Consent is a key element of any sexual battery case. If the victim does not give consent before being touched, the perpetrator would be liable to the sexual battery charge. Note that various people cannot give consent because of their age or mental incapacitation. Such persons include minors and intoxicated individuals.
This offense can be accomplished by use of force or coercion and can render injuries to the victim especially if there were multiple perpetrators. If the victim is a minor, severe charges are likely to be imposed. Thus, it is essential to clearly interpret every aspect of the law to avoid falling prey to the charges. For instance, touch can be direct physical contact of an individual or through the clothing – the perpetrator may face the charges even if they didn’t accomplish their mission.
Taking Indecent Liberties with a Child
If any individual touches the private parts of a minor under the age of fifteen years old for the purposes of sexual arousal, gratification, or abuse, they are liable to charges under code section 18.2-370. Such acts are termed as lascivious acts, and the person would be breaking laws against taking indecent liberties with a child. Other acts with lascivious intent are:
- Exposing your genitals to a child or forcing a child to expose his/her genitals;
- Making a child to fondle his/her genitals or your sexual organs;
- Proposing that a child performs offenses such as cunnilingus, anilingus, fellatio, anal intercourse, or any illegal sexual intercourse;
- Enticing a child to enter a vehicle or any place for the purpose of any lascivious act.
The above aspects amount to criminal charges if the perpetrator is at least 18 years old, and are treated as a class five felony. And the child must be under 15 years old at the time. This offense is also charged as a class five felony if the perpetrator is a parent, grandparent, step-parent, or a step-grandparent – the victim must be between 15 and 18 years old. Additionally, the perpetrator may face class four felony penalties if he/she has a prior conviction of the offense.
Rape
This sexual offense is codified under Virginia code 18.2-61 and is defined as the non-consensual engagement of sexual intercourse between two individuals who are not married. This offense is accomplished by use of fear, force, or intimidation and against the consent of the complaining witness – the inability to consent can apply as a result of intoxication, mental inability, or physical disability. Essentially, violating the aggravated sexual battery laws means that a person has also committed a rape offense of a minor, but it is common for prosecutors to press charges of aggravated sexual battery only since the punishments are more severe than in the case of an ordinary rape.
Rape in Virginia is punished by being confined in a correctional facility for at least five years. Additional punishments apply depending on the victim’s age. For instance, the minimum confinement period is 25 years if the perpetrator is more than 3 years older than the plaintiff. If the offender was at least 18 years old and the victim was mentally or physically incapacitated, the confinement term extends to life.
Statutory rape
In Virginia, it is presumed that minors cannot consent to any sexual activity. Thus, a person could be charged with statutory rape if they engaged in sexual acts with a minor. The difference between this offense and rape is that statutory rape charges apply even if the alleged minor consented to the act, but rape focuses on the nonconsensual element. Therefore, the prosecutor doesn’t necessarily have to prove that there was assault for statutory rape charges to hold (assault during the act can be charged as forcible rape). Also, the offense could be charged as child enticement, battery, abuse, or assault if the perpetrator used force or assaulted the child.
Defenses for Aggravated Sexual Battery
Insufficient evidence
An attorney may argue that the evidence issued by the prosecutor does not satisfactorily prove that there was force or threats during the sexual conduct between the complaining witness and the defendant. They can also show that the complaining witness wasn’t mentally incapacitated or physically disabled. However, these claims hold when the alleged crime occurred at a time close to the prosecution; if the charges are filed after a long time, the complaining witness might then be mentally incapacitated or physically injured, which would supplement the notion that they received the injury or incapacitation during the act.
Rebut evidence
If the evidence presented rebuts evidence provided concerning a prior sexual assault against the complaining witness, the defense attorney may successfully fight the case. In case the evidence is related to a past incident of sexual conduct that would have happened to the complaining witness, and not perpetrated by the defendant, the charges should be dismissed and not be acceptable for preliminary hearing and/or trial.
False accusations
The defendant might be falsely accused because of the victim’s mental incapability during the act, a need for revenge from the victim, the defendant was intoxicated, or there was a misunderstanding between the defendant and the victim. The defense team can insist on the presence of an eyewitness to provide any evidence that can supplement these claims.
For instance, if the prosecutor issued a written notice describing evidence before the council makes its opening statement during the preliminary hearing, and before seeking the admission of the evidence, the defense attorney can argue that the complainant intended to fabricate evidence. Additionally, even though the jury has the discretion to determine the admissible evidence, the defense attorney plays a critical role in planting doubts of the evidence’s validity.
Mistaken identity
A mistake in identifying the defendant can also be a perfect defense strategy. In cases where the sexual battery perpetrator wore a face mask or any clothing that would obscure him/her from being recognized, the attorneys can argue that the suspect was wrongly identified. Hence, they are not liable to any criminal charges.
How Can I Find an Criminal Attorney Near Me?
If you have been accused of committing an aggravated sexual battery in Fairfax, VA, or anywhere in Northern Virginia, contact Virginia Criminal Attorney immediately for highly skilled legal representation. Our criminal defense attorneys are specialized in all cases related to sexual assault and battery. Call our criminal defense lawyer today at 703-718-5333.
