Factsheets: Sexual Assault Legislation

• Overview
• State Statutes
• Bibliography
• For additional information

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 Coalition Against Sexual Assault
912 North Second Street
Harrisburg, PA 17102
(717) 232 - 7460

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."

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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.