This page is for information purposes only. It does not provide legal advice, nor does it constitute an attorney-client relationship. If you need legal advice, please contact an attorney directly. American Bar Association’s Legal Referral Directory.
Sexual assault has potentially detrimental outcomes for abuse survivors. It is a serious criminal offense under both state and federal law.
Each state has its own statutes and sentencing guidelines for sexual assault, and sexual assault falls under both CRIMINAL and CIVIL legal areas.
What it Means to Be Free
This is America. I’m free to say and do whatever I want!
Actually, you’re not. Neither am I, depending on what I want to do or say. In America, we are free. We are free to decide where we live, where we work, what we’ll eat. We can choose our religion, our friends, our words, our t-shirt slogans. We may freely pick our favored sports teams, and we may decide whether we want to eat at Olive Garden or Outback.
Freedom is good. But freedom isn’t unfettered. It isn’t really free. It has limits.
You and I both agreed to these limits. When we freely decided where we would live, we consented to the governing laws of our area. We agreed to be held accountable if we freely decided to not follow those laws. We consented to giving up a tiny bit of our individual freedom for the larger, collective good. The collective’s freedom.
Some people misunderstand this. They exercise what they believe is their personal freedom in a way that tramples others’ rights to be free. Such absolute individual freedom is actually called despotism (the exercise of absolute power over another in an especially cruel way).
Alexander Hamilton once said that a government of laws wouldn’t be necessary if all men were angels. But men (and women) are no angels. Thus, a free government exists to protect its citizens from its less than heavenly counterparts. A free government protects freedom.
Do you know the laws to which you’ve consented?
Many aren’t aware of the laws of their land. Schools educate kids in calculus and chemistry, but don’t teach them much about becoming good citizens. Civics doesn’t appear in the curriculum often until the final years of high school, and even then, only 17 states include test results from Civics in their school report cards and accountability reports.
If you’re a citizen who wants to learn more about the laws of your area, then begin with your state’s constitution. Then, research your state code of laws. Here’s a link to get you started.
Felony Sexual Battery
In South Carolina and many other states, criminal sexual conduct is a felony ranging from first degree (Class A Felony) to third degree (Class E Felony) offenses.*
Which crimes are charged depends on a fact-intensive inquiry. Molestation and fondling of older children and other vulnerable persons at least qualifies as sexual battery (in some places this is Assault and Battery of a High and Aggravated Nature), and these are also very serious (often felony) criminal offenses.
These felony crimes carry maximum penalties of ten to thirty years for each offense. In the sentencing phase, judges will consider mitigating and aggravating factors to reduce or increase penalties. Even where a defendant has no prior convictions of sexual misconduct, many courts will allow the testimony of a defendant’s past conduct, and where a victim shows a defendant’s acts constitute a “common scheme” or “plan” against the same or similar victims, the court may impose a harsher penalty. State v. Clasby, 385 S.C. 148 (2009).
*In South Carolina, criminal sexual conduct is a misdemeanor only in the case of sexual battery of a student where the student is 18 years or older and the act between teacher and student is consensual in nature. Even then, it is a crime.
Additional crimes that may be charged include kidnapping and stalking. Additionally, victims may pursue civil, tort law claims for assault and battery, false imprisonment, intentional infliction of emotional distress, and defamation, which could carry both compensatory and/or punitive damages. In the civil court of law, the burden of proof is a lower “preponderance of the evidence” or “more likely than not” standard.
Sexual Assault Survivor’s Rights
Victims of Crime Act
The Clery Act
Mandatory Reporting Laws
Title IX Requirements
Churches, Fiduciary Duty, & Duty to Report
A fiduciary relationship exists where one party has a duty to act or give advice for the benefit of another in the scope of a trusting relationship. These can be legal or ethical relationships, and depending on the jurisdiction, may make churches liable for failing to report suspected abuse. Additionally, 26 states have enacted statutes requiring clergy to report known or suspected abuse to authorities. Read more about the duty of churches and church liability here.
UPDATE – Recently, I’ve heard several religious persons naively claim that churches and church officials cannot be liable for any sexual assaults that occur off of church property. I encourage such individuals to read the law review articles shared here. Any officials who cover abuse, coerce church members to remain silent about abuse, or who knowingly allow alleged abusers around congregants and children without warning them of the known danger, may put themselves in a precarious legal situation. One would hope churches would do the right thing and report abuse, but if they feel no moral, religious, or ethical impetus to do so, they should be aware of the legal responsibility they have.
Special Relationships & Known Offenders
Law Review Articles & Sexual Assault
Recent Legal Developments & Judicial Decisions
Ohio v. Clark (2015) – A three-year-old’s disclosure of abuse to his teachers did not violate the Confrontation Clause and is admissible against the defendant.
Elonis v. United States (2015) – Ruling makes it more difficult to convict online stalkers. The Court held plaintiffs must prove intent to show online posts proved a true threat.
Millbrook v. United States (2013) – A prisoner who was sexually assaulted by a prison guard could recover against the United States government under the Federal Tort Claims Act.
Kaley v. United States (2013) – Freezing of a defendant’s assets is constitutional where probable cause is found. Such asset freezing, the Court said, prevents perpetrators from reallocating assets prior to judgment to avoid contributing to the national Crime Victims Fund.
Paroline v. United States (2013) – Adult victims of sex crimes (here child pornography) may be awarded restitution from crimes they endured as children. Also, possessors of pornography may be ordered to pay restitution for direct harm they cause victims.
Mitchell v. Cedar Rapids Cmty. Sch. Dist. (Iowa 2013) – Where a 14-year-old student with exceptional needs was sexually and physically assaulted after leaving school early with a classmate, the school district was found liable for failing to supervise the victim.