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As a criminal defense firm, a common charge we see in this office involves aggravated sexual battery cases. Aggravated sexual battery is found in 18.2-67.3 of the code of Virginia which reads:
§ 18.2-67.3. Aggravated sexual battery; penalty. A. An accused shall be 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. 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. In Virginia it is a felony to sexually assault someone when they are physically or mentally helpless. This is generally found in situations where a person is unconscious and a sexual act occurs, short of penetration. More commonly the charge is usually against a family member (parent or step parent) who inappropriately touches a child in their care or in situations where an adult may molest a child between 13-15 years old. If any of this conduct occurs, it is a felony in Virginia punishable by up to 20 years in prison. It is common that in a sexual battery case, a Defendant is also charged with Object Sexual Penetration. The statute for this charge is as follows: § 18.2-67.2. Object sexual penetration; penalty. A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and 1. The complaining witness is less than 13 years of age; or 2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness. B. Inanimate or animate object sexual penetration is a felony punishable by confinement in the state correctional facility for life or for any term not less than five years; and in addition: 1. For a violation of subdivision A 1, 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 subdivision A 1 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 subdivision A 1, 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. 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. It is fairly obvious that if a Defendant uses an object to penetrate a woman, that if that conduct can be proven, the aggravated sexual battery can also be proven. It should be noted that a simple offense of object sexual penetration in some instances could result in mandatory imprisonment for life. However in other circumstances you can get the charge dismissed upon discharge from counseling. However, in cases where there is not clear penetration, the issue involves what is sexual battery? Turning to the code, the definition of sexual battery is found at 18.2-67.10: § 18.2-67.10. General definitions. As used in this article: 1. "Complaining witness" means the person alleged to have been subjected to rape, forcible sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated sexual battery, or sexual battery. 2. "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person. 3. "Mental incapacity" means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known. 4. "Physical helplessness" means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known. 5. The complaining witness's "prior sexual conduct" means any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article. 6. "Sexual abuse" means an act committed with the intent to sexually molest, arouse, or gratify any person, where: a. The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts; b. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; c. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or d. The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts. So essentially, the touching of intimate parts (genitalia, anus, groin, breast or buttocks) with intent to arouse or gratify against the will of the victim is sexual abuse. Typically, if you were to smack a girl on the buttocks in a bar, that would be considered misdemeanor sexual abuse. For it to be a felony requires either the physical or mental helplessness component or the victims age must be between 13-15. The same act that is a misdemeanor on an adult woman would be a felony on a child or a mentally disabled adult as such an act would rise to a aggravated offense. The code is a minefield of confusion on this subject. If you or a loved one are charged with either aggravated sexual battery or object sexual penetration, you should contact my firm immediately. Myself and the associates of this firm have decades of combined legal experience to assist a defendant through this very difficult time and maximize their results. Even someone guilty of a crime deserves an attorney who will fight for them. Whatever your case may be, you deserve the best. Call us today for a free confidential consultation.