Virginia Criminal Lawyer for Rape & Sexual Battery Explains Laws and Defenses

Sexual Battery Under Virginia Law

Sexual battery, first offense, is a Class 1 Misdemeanor criminal offense under Virginia law, punishable by up to 12 months in jail and a $2500.00 fine. A third sexual battery offense is a Class 6 Felony, punishable by up to 5 years of imprisonment.

A defendant commits sexual battery when he sexually abuses a victim against the victim’s will, by force, threat or intimidation, or through the use of the complaining witness’ mental incapacity or physical helplessness. Sexual abuse is defined in Code § 18.2-67.10(6) as an act committed with the intent to sexually molest, arouse, or gratify any person, where the accused intentionally touches the complaining witness’ intimate parts or material directly covering such intimate parts. The elements of the offense consist of an intentional touching administered with the intent to sexually molest, arouse, or gratify. Sexual battery does not require showing proof of penetration.

A conviction for sexual battery requires proof of some force to overcome the will of the complaining witness. To overcome the victim’s will, the force must be sufficient to overcome the victim’s resistance. The degree of resistance by the victim and, consequently, the degree of force required to overcome her will, necessarily depend on the circumstances of each case, taking into consideration the relative physical condition of the participants and the degree of force manifested. But, no positive resistance by the victim need be demonstrated if it appears that the crime was effected without her consent. In a famous Virginia case, the conviction for sexual battery based on evidence that the victim did not know the defendant, that the defendant drove her to remote area where the offense was committed, that the victim was ordered to submit, and that the victim was frightened during and after the incident. Despite the fact that the victim was not struck, that she did not scream, and that she did not fight her assailants, the Court held that “the evidence amply supports the conclusion of fact that these crimes were committed against the victim’s will, without her consent and thus by force.”


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Rape Under Virginia Law

Rape is a felony criminal offense punished with confinement in the penitentiary for life or for any term not less than five years. If any person has sexual intercourse with a victim or causes a victim to engage in sexual intercourse with any other person and such act is accomplished (i) against the victim’s will, by force, threat or intimidation of or against the victim or another person; or (ii) through the use of the victim’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape under Va Code 18.2-61.

Rape is more simply defined as sexual intercourse against the victim’s will by force, threat, or intimidation. Penetration is an essential element of the crime of rape; proof of penetration, however slight the entry may be, is sufficient. (Compare to sexual battery, which does not require proof of penetration.) The presence of sperm in vagina alone is sufficient to support the finding that penetration occurred.

In order to prove force sufficient to support a rape conviction, force must be used to overcome the victim’s will. There must be evidence of some array or show of force in form sufficient to overcome resistance. As used in the statute, threat means expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in the statute, means putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will. Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure. This fear of bodily harm must derive from some conduct or statement of the accused. The Accused must put the victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her.

In a famous Virginia case, a man threatened to kill himself with a gun, and used a combination of threats and force to intimidate the victim into sex. He held a gun the entire time and used physical force against her, including pushing her, hitting her face, and kicking her buttocks, and repeatedly threatened to kill himself. The court found him guilty of rape.

FULL TEXT OF VIRGINIA LAW

§ 18.2-67.4. Sexual battery.

A. An accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10, (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse, (ii) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, or (iii) a probationer, parolee, or a pretrial defendant or posttrial offender under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services or agency and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail.

B. Sexual battery is a Class 1 misdemeanor.

§ 18.2-67.5:1. Punishment upon conviction of third misdemeanor offense.

When a person is convicted of sexual battery in violation of § 18.2-67.4, attempted sexual battery in violation of subsection C of § 18.2-67.5, a violation of § 18.2-371 involving consensual intercourse with a child, indecent exposure of himself or procuring another to expose himself in violation of § 18.2-387, or a violation of § 18.2-130, and it is alleged in the warrant, information or indictment on which the person is convicted and found by the court or jury trying the case that the person has previously been convicted within the ten-year period immediately preceding the offense charged of two or more of the offenses specified in this section, each such offense occurring on a different date, he shall be guilty of a Class 6 felony.

§ 18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

B. A violation of this section shall be punishable, in the discretion of the court or jury, by confinement in a state correctional facility for life or for any term not less than five years; and in addition:

1. For a violation of clause (iii) of subsection A where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48, (ii) § 18.2-89, 18.2-90, or 18.2-91, or (iii) § 18.2-51.2, the punishment shall include a mandatory minimum term of confinement of 25 years; or

2. For a violation of clause (iii) of subsection A where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.

The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence. If the term of confinement imposed for any violation of clause (iii) of subsection A, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant’s life, subject to revocation by the court.

There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant’s completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.

C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.

 

MEDVIN LAW Case Results

ATTORNEY DISCLAIMER: CRIMINAL DEFENSE ATTORNEY CASE RESULTS DEPEND ON FACTORS UNIQUE TO EACH CASE & CANNOT PREDICT NOR GUARANTEE RESULTS FOR FUTURE CLIENTS.