Sexual Assault Sentencing and Penalties

What happens after a judge or jury finds someone guilty of sexual assault? As with every criminal offense, the case will proceed to sentencing. Judges will look at several factors to determine an appropriate sentence. Criminal statutes will usually set a range of punishments for sex offenses. This may include a minimum and maximum prison term, fines, and other penalties.

Judges also examine aggravating and mitigating factors when deciding the sentence for a sexual offense. Aggravating factors are those factors such as a defendant's criminal history, the lack of remorse, or the use of violence. Such factors may demand a harsher punishment. Mitigating factors, on the other hand, are circumstances that tend to support a more lenient sentence.

This article provides an overview of the various factors that determine sentencing for sexual assault convictions.

State Laws on Sexual Assault Sentencing and Penalties

States use differing terminology for sex crimes. Depending on state law, sexual assault charges may include crimes of rape, statutory rape, or sexual battery. The most serious criminal cases involve nonconsensual sexual activity brought on by force or threat. This may include the nonconsensual sexual intercourse associated with rape. It may also include other nonconsensual sexual conduct such as oral sex, anal sex, or sexual penetration by an object.

Sexual assault crimes that may be lesser felonies include those where the perpetrator has unwanted or offensive sexual contact with the victim. In a sexual contact crime, there is no requirement of penetration. The focus is on the intentional touching of another's private parts for sexual gratification or to abuse or humiliate the victim.

Consent

In most states, sexual assault statutes provide that to prove the crime, the state must show the lack of consent for the sexual act at issue. The state may do this through testimony of the alleged victim, physical circumstances surrounding the crime, or by showing the incapacity of the alleged victim to consent. Today, most statutes provide that the following circumstances imply that there is no consent:

• The offender used force or threat of force to commit the offense.
• The victim is a minor under the state's age of consent. Juveniles cannot provide valid consent.
• The victim was asleep, unconscious, or drugged by the offender.
• The offender, through fraud, caused the victim to believe they were someone else.
• The victim is mentally disabled or incapacitated.
• The victim is in the custody of a correctional institution or health care facility and the perpetrator is someone responsible for their care.

State courts will weigh aggravating factors and mitigating factors to reach a fair sentence. Aggravating factors may include the offender's use of a deadly weapon or that the victim suffered bodily harm. Mitigation may follow a guilty plea and a statement of remorse. 

An offender's criminal record may serve as an aggravating or mitigating factor in a given case. If the offender has no prior felony conviction or sex offense, this may serve as mitigation in sentencing. If the offender has prior offenses of a similar nature, the court may use such an aggravating factor to impose more time.

In cases where the State and the defense reach a plea bargain agreement, they must present the proposal to the court prior to any sentencing. The court has the ability to reject the agreement or accept it. Plea bargains often include the agreed sentence for the offender.

Many states now require the completion of sex offender-specific counseling and therapy as a part of any probation or parole process. Sexual assault convictions will likely also bring sex offender registration requirements. If an offender does not file their name, address, and other information with the sex offender registry, they may face a new felony charge.

In order to learn more about specific sentencing and penalties for sexual assault, consult the laws of the jurisdiction where the conviction took place. Below, we examine sexual assault statutes in California and New York as examples.

Check out FindLaw's State Sexual Assault Laws guide and FindLaw's State Rape Laws guide for more information.

California

In California, a sexual assault conviction carries with it a range of possible sentences depending on which specific crime is at issue and other factors. The crime of aggravated sexual assault of a child can carry a sentence of 15 years to life.

California's rape statute carries prison sentences of three, six, or eight years. The potential prison sentence will increase if the victim is under 14 years of age, or if there was a use of force. This type of sentencing is known as determinate since it results in a specific term of years in prison.

Fines in California will also vary. They may go as high as $25,000 for offenses with a child victim. As mentioned above, a judge will examine the facts of the case, including aggravating and mitigating factors, in order to settle on the specific sentence.

New York

In New York, sexual assault describes a broad range of criminal conduct. The lowest degree of sexual misconduct is a class B misdemeanor. The most severe laws against rape and aggravated sexual abuse are class B felonies. The judge has the discretion to set the sentence, but the law binds the judge to impose a sentence within a certain range depending on the precise charge.

Moreover, the sentence for any felony is an indeterminate one, which means that the judge does not set an exact term. Instead, the judge picks a range of years between the absolute minimum and the absolute maximum set by law. The defendant could serve the entire term or just the minimum amount, depending on their behavior in prison and other factors.

New York law sets the absolute minimum sentence for sexual assault felonies at one year. The maximum prison time will be 25 years for the most serious offenses. Judges can choose any range that falls within those limits for the offense category.

Federal Laws on Sexual Assault Penalties

When a sex offense is in federal court, the law directs the judge to examine a number of factors, including the defendant's criminal history and any acceptance of responsibility. Federal law designates sexual assault crimes as aggravated sexual abuse or sexual abuse.

Penalties for engaging in these crimes can include any number of years in prison to life. When the victim of the offense is a child under age 16, the minimum penalty may begin at 30 years.

In addition, federal law provides that the court can order those convicted of sexual assault to pay fines and to compensate their victims for any expenses directly related to the crime. This can include costs for medical care, physical or occupational therapy, attorney's fees, and other losses caused by the crime.

A federal judge will normally take the following steps prior to the imposition of a sentence in a sexual assault case:

• Review the minimum and maximum penalties set forth in the law for the particular offense
• Consult the federal sentencing guidelines issued by the U.S. Sentencing Commission. The judge will calculate the range under the guidelines and consider any reasons to depart from that range.
• Review the pre-sentence report prepared by the probation department
• Review any victim impact statement(s) provided to the court
• Consider the nature of the crime and any criminal history of the offender
• Consider the statements of the prosecutor, the defendant, and the defense counsel

For a felony sexual assault conviction, the court must set a minimum prison sentence of at least one year. Most situations will call for a determinate sentence.

As with state law, some circumstances may lead the court to impose a harsher sentence. For example, the use of a firearm or an assault on a young child may bring a mandatory minimum prison sentence. The federal system permits the offender to earn credit for good time in some circumstances. The court will also issue orders related to sex offender registration and notification.

The federal court does not become directly engaged in plea negotiations between Justice Department prosecutors and the defense. If the court is presented with a plea bargain, like its state counterparts, it may accept or reject the deal.

Civil Lawsuits for Sexual Assault

Federal and state law permits victims of a sexual assault to pursue civil remedies as well. Civil actions can provide remedies similar to a personal injury case that are not available in criminal court. This can include monetary damages, injunctive relief, and more.

In a civil sexual assault lawsuit, the plaintiff must prove their case by a preponderance of the evidence. This is a lesser standard than the criminal standard of "beyond a reasonable doubt."

Getting Legal Help With Your Sexual Assault Case

Sexual assault is a very serious crime with significant penalties and collateral consequences. If you have been charged with sexual assault, you have the constitutional right to legal representation. You should consider speaking to an experienced criminal defense attorney as soon as possible. An attorney can discuss defense strategy with you and potentially challenge any evidence against you. They can also help negotiate a fair resolution on your behalf.