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 needs to 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 ta o 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.”
Aggravated Sexual Battery Felony
Aggravated sexual battery is a felony punishable by confinement in a Virginia prison for a term of not less than one nor more than 20 years, and by a fine of not more than $100,000.
To prove a felony charge of aggravated sexual battery, a Virginia prosecutor must prove: sexual abuse plus one of the following:
1. The complaining witness is less than 13 years of age; or
2. The act is accomplished through the use of the complaining witness’s mental incapacity or physical helplessness; or
3. The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less than 18 years of age; or
4. The act is accomplished against the will of the complaining witness by force, threat or intimidation, and
a. The complaining witness is at least 13 but less than 15 years of age; or
b. The accused causes serious bodily or mental injury to the complaining witness; or
c. The accused uses or threatens to use a dangerous weapon; or
5. The physical touch is not a recognized form of treatment in the profession and is committed without the express consent of the patient, by (i) a massage therapist, or a person purporting to be a massage therapist, during an actual or purported practice of massage therapy, (ii) a person practicing or purporting to practice the healing arts, during an actual or purported practice of the healing arts, or (iii) a physical therapist, or a person purporting to be a physical therapist, during an actual or purported practice of physical therapy.
Va 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.
§ 18.2-67.3. Aggravated sexual battery; penalty.
A. An accused is guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and
1. The complaining witness is less than 13 years of age; or
2. The act is accomplished through the use of the complaining witness’s mental incapacity or physical helplessness; or
3. The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less than 18 years of age; or
4. The act is accomplished against the will of the complaining witness by force, threat or intimidation, and
a. The complaining witness is at least 13 but less than 15 years of age; or
b. The accused causes serious bodily or mental injury to the complaining witness; or
c. The accused uses or threatens to use a dangerous weapon; or
5. The offense is not a recognized form of treatment in the profession, and is committed, without the express consent of the patient, by (i) a massage therapist, or a person purporting to be a massage therapist, during an actual or purported practice of massage therapy, as those terms are defined in § 54.1-3000; (ii) a person practicing or purporting to practice the healing arts, during an actual or purported practice of the healing arts, as those terms are defined in §§ 54.1-2900 and 54.1-2903; or (iii) a physical therapist, or a person purporting to be a physical therapist, during an actual or purported practice of physical therapy, as those terms are defined in § 54.1-3473.
B. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility for a term of not less than one nor more than 20 years and by a fine of not more than $100,000.
§ 18.2-67.5. Attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery, and sexual battery.
A. An attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration shall be punishable as a Class 4 felony.
B. An attempt to commit aggravated sexual battery shall be a felony punishable as a Class 6 felony.
C. An attempt to commit sexual battery is a Class 1 misdemeanor.
