Virginia Criminal Attorney is a criminal defense law firm that primarily serves clients in the Fairfax and Northern Virginia areas. Our lawyers’ area of interest is sexual crimes, specifically sexual battery. Sexual battery, just like any other sexual crime in Virginia, is a serious crime that requires registration as a sex offender after a conviction (in addition to imprisonment and fines). 

Understanding Sexual Battery Laws in Virginia

Sexual battery in Virginia is defined under Virginia Code 18.2-67.4 as any form of sexual abuse committed against another person's will, through the use of threats, tricks, or even intimidation. It also encompasses a person in authority sexually abusing an inmate, pretrial offender, probationer, or parolee. Additionally, you can face sexual battery charges if you engage in the above sexual abuse acts with more than one victim within a time frame of two years, or have sexually abused one victim more than once within the same time frame (two years) without their consent. One can also be charged with the offense if he or she forcefully touched the intimate body parts of another person and the act of touching was done intentionally.

Virginia treats sexual battery as a class 1 misdemeanor, with the potential penalties depending on the number of times you have committed the crime, the age of the victim, or if you used force and intimidation.

In some cases, you can be charged with aggravated sexual battery in pursuit of section 18.2 -67.3 if the complaining victim is below the age of 13 years and if you took advantage of the victim's mental incapacities or his or her physical challenges to sexually abuse them. You can also be charged with the offense if the victim is a minor above 15 years old and you are his/her step-grandparent, grandparent, stepparent, or parent – and during the commission of the act, you went against the alleged victim’s will by using force, intimidation or threats.

Your sexual battery charges can escalate to aggravated battery charges if the complaining witness is between the ages of thirteen (13) and fifteen (15) years old and during the incident you caused him/her severe body or mental injuries or threatened them using a deadly weapon.  Aggravated sexual battery is treated as a felony. It is punishable by confinement in a state correctional facility. According to section 18.2-67.3, if you sexually abuse a mentally/ physically disabled or a person under the age of thirteen years, you can serve a twenty years prison term and/or be fined $100,000.

Elements of the Crime of Sexual Battery in Virginia

A sexual battery prosecutor must prove the following elements to validate the charges:

  1. The touching that occurred was against the complaining witness’ will. This means that you forced yourself on someone against their own will;
  2. Intent. The prosecutor must also prove that you had a sexual motive or intention to commit the act;
  3. Presence of threats, intimidation, or force. There must be proof that you threatened and intimidated the victim using a deadly weapon or used force;
  4. Touched the victim's intimate parts. Touching the victim's intimate parts is one of the significant aspects of sexual battery, especially if the alleged victim is a minor. This element implies that the prosecutor doesn't necessarily have to prove that you had sexual intercourse with the alleged victim.

It can be a daunting task for the prosecutor to prove that you had the intention of sexually abusing another person. Simple acts may amount to sexual battery charges even though it was not done with bad intentions. Once you can cast doubt on the prosecutor's allegations, you can get your case dismissed or penalties reduced. However, you may still face such consequences as loss of child custody, social stigmatization, and being denied privileges of being around any children if the prosecutor can prove any aspect of sexual abuse – even if it doesn't amount to sexual battery charges.

What Is the Difference between Sexual Assault and Sexual Battery in Virginia?

Sexual assault is any form of sexual touch or contact (behavior) directed on an individual without his/her consent and may involve such acts as incest, fondling, attempted rape, forcible sodomy, and forced sex. Sexual battery, on the other hand, is described as any form of unwanted touch or contact by the defendant on the victim’s intimate or private parts without their willingness and with the view of arousing sexual feelings, gratifying sexual desires, or sexually abusing the person.

In simple terms, sexual battery is a form of sexual assault that doesn't entail broad acts like forcible sodomy, object penetration, attempted rape, and so on. Consequently, sexual assault is often treated as a felony while a sexual battery is a class 1 misdemeanor.

Punishments for Sexual Battery

These punishments majorly depend on whether you are a repeat offender or been infected with HIV/AIDS, hepatitis B, or syphilis as well as the form of the battery (simple or aggravated sexual batteries). The various punishments are discussed below:

Simple Sexual Battery and Attempted Sexual Battery

These two offenses carry a maximum fine of 2,500 dollars and a maximum of one year in jail. The punishments will be different if you attempt to commit an aggravated battery, where you can face a maximum imprisonment term of five years and a fine of up to 2,500 dollars.

Sexual Battery Case When You are Infected

If you are infected with HIV/AIDS, hepatitis B, or syphilis and are aware of your status while you have cunnilingus, anilingus, anal intercourse, fellatio, or sexual intercourse with another person with the intention of transmitting the infection, then you may be charged with sexual battery. This is a class 6 felony offense that can subject you to a five-year prison term. You will also be required to pay a fine of 2,500 dollars.

If you did not intend to infect the other person, then this offense is treated as a misdemeanor. The punishment is one year in jail and a fine of 2,500 dollars. Section 18.2-62 implies that you must present your HIV/AIDS and hepatitis B tests upon your sexual battery conviction otherwise the prosecution will request the court that you get tested.

Special Penalties for Offenders Who Repeat the Offense

If you are charged with sexual battery and you have two prior convictions within the last ten (10) years, your charge will be treated as a felony.

Under Virginia Code 18.2-67.5:1, if you are convicted of intentionally having sex with a minor and or indecent exposure,  your current conviction will be significantly impacted and you may be punished with a maximum fine of 2,500 dollars and up to one year in jail.

According to Virginia Code 18.2-67.5:2, if you are charged with aggravated sexual battery, then you will be given a maximum sentence according to the law. The statute does not allow the suspension of any portion of the sentence. This also happens when you have previous convictions for any other sexual assault offenses.

Registration as a Sex Offender in Virginia

There are two types of sex offenders: violent and non-violent offenders. In case you are accused of the murder of a person under 18 years of age in connection with a sexual offense, you will be viewed as a violent offender. Non-violent offenders are those that can be convicted of registered sex offenses that are not violent sexual crimes.

Sexual battery and aggravated sexual battery are offenses that can require you to register as a sex offender. Under Virginia laws, sex offense charges can last forever in the sex offenders' registry if you are above 18 years of age and the victim is below six years old. You are also required to register as a sex offender in case you have attempted sexual battery, or you have been accused of sexual battery for the second time and the victim is a minor or physically/ mentally challenged.

In case you are convicted of sexual battery for the third time for a simple or attempted battery, you may be required to register as a sexual offender. The registration often affects the place/ area you live in, if you get a job or not, and whether you can get access to certain public facilities such as libraries.

What Happens If You Fail to Register as a Sex Offender?

According to Virginia Code 9.1-903, if you are required to register as a sexual offender and you defy, the prosecutor may press charges for violation of this statute. The court may decide to make you take a picture, provide residence proof, list assets you own, and you will be required to provide contact information for your place of employment. Moreover, you will be required to have your fingerprints taken. You also need to provide your email address, instant message, chat, internet communication name, and to give a DNA sample that goes into the DNA database bank.

According to Section 9.1-1-903, in case you change any of the above details, you are required to notify the police within 30 minutes of the change. If you are charged with failing to register or re-register as a sexual offender, annual registration is increased to 180 days and the requirement for re-registering is shortened from 90 days to 30 days. This is also the case when you bear false witness.

If you do not inform the police in the required time frame, you can receive penalties for violation of the sex offender registration laws. These penalties include 12 months in jail and a maximum of 2,500 dollars fine if the offense is a class 1 misdemeanor or a first conviction. For felony offenses (second and subsequent time), the punishments can include one to ten years in prison and a maximum fine of 2,500 dollars.

Since registration as a sex offender can even last forever on your record, it is wise to petition for the removal of your name from the registry. The guidelines for removing your name from this registry are discussed below.

Petition for Removal from the Sexual Offender Registry

According to Virginia Code 9.1-9.10, if one is convicted of sexual battery, he/she can have the name removed from the registry of sexual offenders after 15 years. However, there are various requirements that the sexual battery offender has to meet. One of the conditions is to complete all court ordered treatment, including payment of restitution and therapy. You will be required to provide your criminal and sex offender registration history. You will also be required to provide documentation that you went for counseling and treatment.

There must also be evidence that you are no longer at risk to society or yourself. Your attorney will analyze your sex offender registration history and show the court that you are no longer at risk of committing the offense. On the other hand, the prosecutor may prove that you are still at risk, in which case, the judge may rule that you must remain a registered sex offender. In this case, you will be required to continue the counseling and treatment sessions. Also, you have to wait for two years before you can be allowed to petition for removal from the sexual offender registry.

Possible Defenses against Sexual Battery Charges in Virginia 

Being accused of sexual battery is a severe case which may land you with harsh penalties. As such, you need a skillful attorney to defend you against the charges. The attorney will apply any of the following defense strategies to have charges against you significantly reduced or have them dismissed:

  • There was consent from the complainant. Your attorney can argue that the alleged victim allowed you to touch them sexually or you had intercourse with their permission. Basically, this means that you did not sexually abuse them. However, this defense strategy may be tricky in cases where the alleged victim is a minor, specifically under 13 years old. This is because minors are generally considered unable to independently consent to any sexual activity in which case other sexual charges like statutory rape may apply.

  • The victim's past sexual history doesn't allow them to make accusations against you. Even though the law does not allow you to sexually abuse another person based on the fact that they have a past criminal conviction, such a history could still raise doubts on whether you actually sexually abused the person. For instance, a person convicted of rape before or even under the sex offender registry may not be in a better position to claim that you offended them. In fact, you may argue that you were instead offended by the said victim based on their past criminal convictions.

  • You can ask for the re-testing of the forensic evidence provided. Sometimes the evidence can be planted. This means that the forensics evidence can be tested again to ensure that it is not false or altered to criminalize you. For example, a re-testing may show contradicting DNA evidence that you are the real offender. Note that you won’t be able to use this defense strategy if the results affirm the original allegations peddled by the prosecutor.

  • Mistake of facts. Even though most prosecutors rely on their evidence based on the nature of the sexual contact, this defense strategy may still apply to question the victim's age or when you believe that you are not the actual offender. As an example, the complaining witness might have uttered words or phrases that imply they are adults or you met them in an adults-only place such as a bar. Additionally, the complaining witness identified you (as the perpetrator of the sexual acts) because they were not able to recognize the real perpetrator, because, for instance, he/she wore a mask while committing the offense.

  • You did not use force, threats, or intimidation. This defense strategy may help you to get lesser sexual battery charges (simple sexual battery or attempted sexual battery) if you are facing charges for aggravated sexual battery (which requires proof that you intimidated or threatened the victim). Essentially, your initial confession to the investigators (that you threatened the victim), the presence of a deadly weapon at the crime scene, or the victim having bodily injuries may serve as strong evidence that you used force to sexually abuse the victim. However, you may still refute such evidence by, for example, claiming that the victim had injuries even before you sexually engaged with them.

  • You had no intention of sexually abusing the victim. The element of intent is a strong aspect of sexual charges. But there are instances when you can touch someone with no intention of abusing them yet they take such a touch to imply that you intentionally abused them. An attorney can evaluate the circumstance under which the alleged crime occurred and weigh in with the claim that you did not intentionally abuse the victim as claimed by the prosecutor.

Find a Skilled Legal Representative Near Me

Are you facing sexual battery charges and worried about the negative consequences of a conviction? It is normal to worry about any conviction of a sexual crime because the law may require you to register as a sex offender, serve a prison sentence, or pay fines. But Virginia Criminal Attorney can help you to avoid such consequences. Our attorneys are well-versed with sexual assault and battery laws to legally represent you in the court. We serve clients in Fairfax and Northern Virginia. Contact our Fairfax Criminal Attorney at 703-718-5533 for a consultation about your case.