Sexual Assault Legislation
Overview
Sexual assault is a general term which can include many different crimes and varying
degrees of severity of those offenses, such as: rape in the first degree, second degree
sexual contact, sexual conduct, and indecent exposure, to name a few. Sexual assault
almost always involves sexual intercourse oral or anal intercourse or the penetration or
touching of the genitals or anal orifice with a part of the body or an inanimate object.
It can be committed by one or more persons against another who is unwilling or unable to
physically, mentally or legally consent to the sexual act. In recent years, many states
have amended their laws concerning sexual assault to make such crimes gender-neutral that
is, sexual assault can be by a male against a female, male against male, female against
male, or female against female. (All statutes discussed in this summary are current
through 1992 unless otherwise indicated. Source: National Center for Victims of Crime,
Legislative Database.)
Aside from laws describing and
prohibiting the act of sexual assault, other special problems and considerations
concerning sexual assault proceedings in the criminal justice process have arisen.
Specific problems developed because of the intimate nature of such an act of violence as
sexual assault, coupled with the principle in our system of justice that an accused is
innocent unless proven guilty beyond a reasonable doubt. Often, a primary question in a
prosecution of a sexual assault case is whether the victim consented to the sexual act
with the accused; then, in the absence of corroborating evidence, it becomes a question of
who is more believable the perpetrator or the victim. Frequently, these proceedings are
embarrassing and humiliating to the victim because aspects of the victim's past sexual
history and reputation can become the subject of intense discussion and testimony in
public trials.
State Statutes
In the last twenty years, many states have enacted laws reforming the procedures for
sexual assault prosecutions. The general trend has been a shift in focus away from the
victim, and the victim's past sexual conduct, toward factually-specific evidence
surrounding the actual alleged act of sexual assault. Most states now have laws, generally
referred to as "rape shield" statutes, which prohibit evidence of the victim's
past sexual conduct and reputation from being used by the defense at trial. Usually, a
preliminary hearing will be held before trial and outside the presence of the jury to
determine if any evidence concerning past sexual conduct by the victim is relevant to
establishing the facts of the case. Further, most states no longer require evidence that
the victim attempted a minimum degree of physical resistance against the attacker.
A few states have passed laws that prohibit law enforcement
officers and/or prosecutors from requiring a sexual assault victim to submit to a
polygraph examination as a prerequisite to initiating a criminal investigation or filing
the pleadings which charge the perpetrator with the offense. However, it is important to
note that although these protections are usually afforded to victims during criminal
proceedings, as a general rule, they do not apply to civil trials for damages by victims
against their assailants. Additionally, numerous laws have been enacted by state
legislatures across the country with respect to other matters involving sexual assault. In
all 50 states, it is now a crime to sexually assault one's spouse. Several states now have
established protocol for working with sexual assault victims from medical and mental
health providers to law enforcement personnel and prosecutors. Many states also provide
free medical examinations for victims, although these are often for evidence gathering
purposes. Over one-third of all states now permit nonconsensual HIV testing of alleged
and/or convicted sexual assault offenders.
As of 1995, over 40 states have passed laws requiring the
registration of sexual offenders with state agencies in order to keep track of the
behavior and whereabouts of such offenders and, in some states, to provide vital
information to employers on the criminal background of prospective employees for hiring
purposes. Most recently, states have been addressing the issue of community notification
upon a sex offender's release from confinement or placement on probation. These provisions
would require that neighbors, community officials, organizations and individuals working
with potential victims (such as children), or those likely to come in contact with the
offender be notified that a convicted sex offender is living in their midst. However, this
area of the law is under considerable scrutiny both in the courts and on a legislative
level at this time. There is also a growing trend to provide other kinds of funding or
financial assistance to defray the costs associated with the aftermath of a sexual
assault. Some types of services to victims that may be funded are:
- Medical examinations unrelated to evidence gathering;
- On-going medical treatment;
- One-time or on-going sexually transmitted disease
testing;
- Psychological counseling and treatment;
- Replacement of clothing;
- Moving expenses; and
- Other services or assistance.
Many states now also have laws protecting the confidential
statements by sexual assault victims made to counselors, in order to promote the healing
process of victims without having to fear that information about their identities,
addresses and other personal facts will be divulged to others especially the perpetrator
and his or her counsel. For information regarding the law in your area, contact your state
Attorney General, your local prosecutor or your local law library.
Bibliography
Blumberg, Mark and Denny Langston. (1991). "Mandatory HIV Testing in Criminal Justice
Settings." Crime & Delinquency, 37(1).
Bohmer, Carol and Andrea Parrot. (1993). Sexual Assault on Campus. New York: Lexington
Books.
Epstein, Joel and Stacia Langenbaun. (1994). The Criminal Justice and Community Response
to Rape. Washington, DC: National Institute of Justice, U.S. Department of Justice.
Koss, Mary and Mary Harvey. (1991). "The Crime of Rape: Legal Definitions of
Rape." The Rape Victim: Clinical and Community Interventions Sage Library of Social
Research, Vol. 185. Newbury Park, CA: Sage Publishing.
Laszlo, Anna. (1990). AIDS: From Policy to Practice. Alexandria, VA: The National
Sheriffs' Association.
National Clearinghouse on Child Abuse and Neglect and National Center for the Prosecution
of Child Abuse. (1995). "HIV Testing of Sex Offenders." Investigations, Vol. III
Child Abuse and Neglect State Statutes Series. Washington, DC: National Center on Child
Abuse and Neglect, U.S. Department of Health and Human Services.
National Clearinghouse on Child Abuse and Neglect and National Center for the Prosecution
of Child Abuse. (1995). "Sex Offender Registration." Investigations, Vol. III
Child Abuse and Neglect State Statutes Series. Washington, DC: National Center on Child
Abuse and Neglect, U.S. Department of Health and Human Services.
National Center for Victims of Crime. (1993). Looking Back Moving Forward, A Guidebook for
Communities Responding to Sexual Assault.
National Center for Victims of Crime. (1995). HIV/AIDS and Victim Services: A Critical
Concern for the 90's.
National Center for Victims of Crime (1995) "Crime Victims'
Privacy Rights in the News Media," FYI, Arlington, VA.
National Center for Victims of Crime (1995) "HIV/AIDS
Legislation," FYI, Arlington, VA.
National Center for Victims of Crime (1995) "Male Rape,"
FYI, Arlington, VA
National Center for Victims of Crime (1995) "Rape-Related
Posttraumatic Stress Disorder," FYI, Arlington, VA.
National Center for Victims of Crime (1995) "Right to Privacy Legislation," FYI,
Arlington, VA.
National Center for Victims of Crime and Crime Victims Research and Treatment Center.
(1992). Rape in America: A Report to the Nation.
Paquin, Gary. (1995). "The Legal Aspects of Acquaintance Rape." In Vernon Wiehe
and Ann Richards (Eds.), Intimate Betrayal: Understanding and Responding to the Trauma of
Acquaintance Rape. Newbury Park, CA: Sage Publishing.
Sadler, Bernadette. (1992). "When Rape Victims' Rights Meet Privacy Rights: Mandatory
HIV Testing, Striking the Fourth Amendment Balance." Washington Law Review, 67: 195 -
213.
Simotas, Lisa. (1991). "In Search of a Balance: AIDS, Rape, and the Special Needs
Doctrine." New York University Law Review, 66: 1881 - 1928.
Stark, James and Howard Goldstein. (1985). The Rights of Crime Victims. New York: Bantam
Books.
For additional information, please contact:
Center for Women Policy Studies
2000 P Street, NW Suite 508
Washington, DC 20036
(202) 872 -
1770
National Sexual Violence Resource
Center
123 North Enola Drive
Enola,
Pennsylvania 17025
877-739-3895 (tollfree)
717-909-0710
(phone)
717-909-0714 (fax)
717-909-0715 (TTY)
Rape, Abuse & Incest National Network (RAINN)
635-B
Pennsylvania Ave SE
Washington, DC
20003
1-800-656-HOPE
202-544-1034
rainnmail@aol.com
www.rainn.org
NOW Legal Defense
and Education Fund
99 Hudson Street
New York, NY 10013
(212) 925 -
6635
Your state Attorney General, county/city prosecutor, or county/city law
enforcement:
Check in the Blue pages of your local phone book under the appropriate section heading of
either "Local Governments," "County Governments," or "State
Government."
All rights reserved.
Copyright ? 1995 by the
National Center for Victims of Crime. This information may be freely distributed,
provided that it is distributed free of charge, in its entirety and includes this
copyright notice.