In Virginia’s whole criminal justice system, there is no other crime with severe and humiliating consequences like a sex offense. Apart from the long imprisonment and fines, a sex offense conviction will negatively impact your life because you’ll be required to register as a sex offender. Inclusion in the Virginia sex offender registry is the worst thing after a prison sentence. Your life becomes monitored to ensure you’re not a threat to the community again, which will significantly affect your work and where you wish to live. Typically, you are a sex offender if you commit any sex offense listed under Virginia code section 18.2-67.10. A sex offense charge becomes severe in terms of punishment if there are other aggravating factors surrounding the offense, such as using a weapon, whether there are injuries or not.
By reading this article, you'll understand the differences between sex offenders and aggravated sex offenders and changing laws in Virginia. Make sure you contact Virginia Criminal Attorney soon after an arrest to avoid the possible consequences of a sex offense charge or possibly reduce your alleged charge, to a less severe offense with less severe consequences.
An Overview of Sex Crimes in Virginia
Every state in the US prohibits various types of sexual conduct against other people regardless of age, and Virginia is not an exception. According to Virginia law, a sex crime is any kind of unconsented sexual abuse that involves coerced or forced conduct against another person, also legally known as the “complaining witness.” When the prosecutor charges you for a particular sex offense, he/she also takes into consideration whether the victim was capable of consent or not. Usually, some individuals, such as minors and people with mental illness, are considered incapable of consent, which means sexual conduct against such individuals would have you convicted as sex offenders or aggravated sex offenders.
Virginia code section 18.2-67.10 defines laws, prosecution process, and penalties surrounding various types of sex offenses against minors and adults. These statutes’ primary purpose is to protect minors and other people from unwanted physical, sexual touches, or harassment. Note that an adult having sex with a minor (someone below 18 years of age) is illegal even if the sex was consensual. It is not uncommon for people to receive wrongful convictions due to misinterpreted sexual conduct, which the complaining witness perceives as intentional, whereas it is not. Therefore, it is crucial to speak to a criminal defense attorney to review your alleged charge’s circumstances for the preparation of a practical legal defense to use during the trial.
The criminal charge you will receive for an alleged sex offense will sorely depend on your type of offense, nature of the crime, and the victim’s age. A prosecutor will charge sex crime as a misdemeanor or a felony depending on the nature of the sex offense and criminal history of the defendant. A sex crime surrounded by other aggravating factors that portray disregard for human life, such as the use of a weapon or severe bodily injury, is a felony. Aggravated sex offenders in Virginia could face life imprisonment or not less than five years in prison, depending on the nature of his/her offense and the type of victim.
Common Sexual Offenses That Can Make You a Sex Offender or Aggravated Sex Offender Under Virginia Law
To understand the difference between sex offenders and aggravated sex offenders, we will examine various types of sexual offenses in Virginia and the offenses’ laws. Any person who commits any type of sex offense is typically a sex offender. However, if other actions surrounding the crime portray disregard for human life, the defendant will be charged as an aggravated sex offender. Below are examples of punishable sex offenses in Virginia:
Sexual assault is a broad term that refers to all types of sexual abuse involving unlawful and offensive sexual touching of another person intimate body parts without their consent, for example:
- Forced masturbation
- Forcing a penis, finger or tongue on another person’s vagina or anus
- Forcing a complaining witness to perform oral sex
The court considers the complaining witness incapable of consent if he/she was drugged or if he/she was below 14 years of age regardless of the minor mental ability to understand what the offender was doing. Virginia penal code section 18.2-67.4 defines punishable sex crimes that fall under the umbrella of sexual assault. Although all sexual assault crimes share some basic crime elements, there are different in nature and scope.
The prosecutor must demonstrate all the basic crime elements of your alleged charge for conviction. A simple sexual assault is considered a misdemeanor offense in Virginia. However, if other acts in the offense’s scope portray disregard for human life, the sexual offense will be charged as a felony. Here are types of sexual assault charges a sex offender may face in Virginia for forceful or coerced sexual conduct against another person:
A sexual battery charge can arise if there is an intentional touching of another person’s sexual parts/intimate parts using intimidation, force, or threat to make the person consent the unlawful and offensive sexual abuse. Under Virginia code section 18.2-67.4, for you to be guilty of this misdemeanor sex offense, the prosecutor must prove to the jury that the abusive sexual acts were against the complaining witness will. A simple sexual battery in Virginia is punishable by twelve months imprisonment and a maximum fine of up to $2,500.
Infected Sexual Battery
According to Virginia code section 18.2-67.4, it is a crime to knowingly engage in sexual intercourse with another person with the intent to infect them with HIV, hepatitis B, or syphilis. Under this statute, the defendant should be guilty of the offense if the/she had not previously disclosed the infection’s existence to the complaining witness. Depending on the sex offender’s intent, an infected sexual battery could be a misdemeanor or felony. If the sex offender had the intent to infect the complaining witness with the infection, he/she would be guilty of a Class 1 felony.
Aggravated Sexual Battery
An aggravated sexual battery consists of the same crime elements as a sexual battery but with more additional allegations/circumstances such as:
- The complaining witness was physically and mentally disabled
- The complaining witness was under 13 years
- The sex offender was a parent, step-parent or grandparent
- The abusive sexual act was against the complaining witness will
- Intimidation or threats and the complaining witness is at least thirteen years of age but less fifteen years.
- The offender threatens to use a deadly weapon or uses a deadly weapon.
- The complaining witness incurred physical or mental injuries.
A prosecutor must prove the above crime elements to convict you as an aggravated sex offender as per Virginia penal code section 18.2-67.3. Unlike a sexual battery, aggravated sexual battery is a felony offense. An aggravated sex offender will be subject to a fine of not less than $100,000 and a maximum of 20 years in prison.
Attempted Sexual Battery
An attempt to commit sexual battery can also be charged as a sexual offense in Virginia even though the sexual offender did not complete the act. Attempted sexual battery is not severe as a sexual battery, but a conviction can affect your life significantly if found guilty by the court. Speaking to a criminal defense attorney is always a wise idea during these challenging times if you’re afraid of saying anything that might incriminate you.
Any person who commits adultery, fornication, or any other kind of sexual activity in exchange for money or any other equivalent like drugs will be guilty of prostitution or soliciting prostitution according to Virginia Penal Code section 18.2-346. Depending on your charge’s circumstances, the prosecutor can charge a prostitution case as either a misdemeanor or a felony. Typically, in Virginia, prostitution is a misdemeanor offense, although, under certain circumstances, the prosecutor can charge the offense as a felony. For instance, under the following circumstances:
- The complaining witness was less than 16 years of age
- The sexual offender used intimidation, threat or weapon to force the victim to prostitution
A misdemeanor prostitution charge carries a prison term of twelve months and a fine not less than $2,500. On the other hand, a felony prostitution charge will make the aggravated sex offender serve a more severe sentence of up to ten years and a maximum fine of up to $100,000.
Virginia penal code section 18.2-374.1 defines laws, penalties, and criminal elements of child pornography charges. Child pornography laws prohibit the production, distribution, and possession of child (someone below 18 years of age) pornographic materials and are charged separately as felony offenses. Laws on child pornography are severe to punish and discourage people who use the internet to obtain or distribute children pornographic materials.
Distributing child pornography would mean selling, copying, reproducing, or electronically transmitting child pornographic materials knowingly. A violator of child pornography laws in Virginia may be subject to a variety of punishment depending on the circumstances of the offense and the child’s age. For instance, distribution or receipt of pornographic materials can lead to five years of imprisonment. On the other hand, the production of pornographic materials will lead to a lengthier prison term of not less than twenty-five years.
Rape is another severe felony sexual offense in Virginia, which can lead to life imprisonment. Virginia code section 18.2-61 defines rape as sexual intercourse with another person whether or not the complaining witnesses his/her spouse under the following circumstances:
- The complaining witness is below thirteen years
- The defendant used fear, intimidation or threat to force the complaining witness to consent the sexual intercourse
- The defendant took advantage of the complaining witness mental incapacity may be through the use of drugs or alcohol to make him/her physically helpless
The prosecutor must prove the above crime elements in a rape charge during the trial to convict you of this sex offense. At the discretion of the judge, rape can attract a prison sentence of not less than five years or life imprisonment if other aggravating factors surround the offense. Often rape is charged with aggravated sexual battery if the defendant caused bodily injury to the complaining witness by use of a weapon. Such aggravating factors make the aggravated sex offender subject to life imprisonment. An accusation for rape could affect your life and cause social stigma. You must consult with a reliable criminal defense attorney as soon as possible if you allegedly charged with rape to explore possible mechanisms of legal defense during the trial.
Computer Solicitation of Minors
Online solicitation of minors to engage in unlawful sexual acts through online communication by use of computers, laptops, or phones is a felony sex offense under Virginia law. The law prohibiting minors’ solicitation online is broad, even mere communication with minors online in specific suggestive sexual ways could lead to an arrest and charge of this crime. Here are acts which can lead to a charge of this sex offense in Virginia:
- Asking a minor to expose his/her genitals
- Asking a minor to touch your genitals
- Asking a minor online to engage in sexual intercourse with you or another person
Computer solicitation of minors is a growing sexual offense in Virginia, which affects many people unknowingly when communicating over social media channels. A conviction for computer solicitation of minors can lead to a prison sentence ranging between five to thirty years and an additional fine of up to $2,500.
A prosecutor takes into consideration a lot of things before charging a sex offense as an aggravated. You become an aggravated sex offender if the prosecutor proves the existence of other acts surrounding the alleged sexual offense which portray disregard for human life. For conviction as an aggravated sex offender, the judge takes into consideration the following:
The Intent of the Offender
The mental state of the alleged sex offender can make a sex offense become aggravated. A sex offense will become aggravated if the defendant had the intent to cause severe bodily harm to the complaining witness.
Use of a Deadly Weapon
Suppose the defendant used a deadly weapon during the commission of the sexual offense, such as rape. In that case, the case will automatically become aggravated regardless of whether the defendant had the intent to cause harm or not. The use of a deadly weapon like a pistol during the commission of a sexual offense would aggravate the case even if the complaining witness did not incur any bodily injury.
Identity of the Complaining Witness
Suppose the sexual offense was committed to a prisoner, and the defendant was an officer or any other person in authority. In that case, the case will become aggravated even if there was no harm to the complaining witness.
Degree of the Harm/Injury
The judge also considers the degree of the injury before charging a person as an aggravated sex offender. The injury’s degree varies from case to case, but any injury threatening death will automatically qualify as aggravated sexual battery/assault. Causing severe bodily injuries to a complaining witness during the commission of any sexual offense like sexual battery or rape makes the offense qualify as aggravated.
All aggravated sexual offenses qualify as a felony in Virginia, and the punishment is unbearable because it also involves inclusion in the sex offender registry. Failure to register as a sex offender is also a sex crime by itself. A qualified and experienced criminal defense attorney can raise a couple of legal defenses to exonerate you from a sex offense charge and avoid these lifelong consequences.
Restrictions Sex Offenders or Aggravated Sex Offenders Face After Inclusion in the Virginia Sex offender Registry
After successfully completing a prison sentence, most sex crimes require the offender to register as a sex offender with the nearest law enforcement agency. Inclusion in the sex offender registry comes with the following repercussions to the sex offender or an aggravated sex offender:
- When you want to move, you must notify the law enforcement agency within your location to update your current information on the sex offender registry.
- You will not live near any schools, colleges, or universities.
- You will lose your child custody rights
- Restricted employment
- Decreased privacy
- The need to reregister will affect your ability to travel
Inclusion in the sex offender registry is the worst thing that can happen after conviction for a sex offense because you’ll face life-long consequences, affecting where you work or live. For that matter, you must seek a criminal defense attorney’s services whenever you face any allegations of a sex crime in Virginia for collection of pieces of evidence to use as a defense during the trial.
Legal Defenses Your Attorney Can Raise to Avoid Conviction as a Sex Offender or an Aggravated Sex Offender
It is possible to say something that can incriminate you after an arrest for a sex offense simply because you’re confused. You’ve got the right to speak to a criminal defense attorney immediately after an arrest to protect your rights and interests because a sex offense can affect your whole life once found guilty. Below are legal defenses your criminal defense attorney can raise to avoid conviction as a sex offender or an aggravated sex offender:
You Were Innocent
Since the prosecutor carries the legal burden of proving you guilty beyond a reasonable doubt, your criminal defense attorney can argue that you are innocent with some pieces of evidence to prove your innocence. For instance, if the alleged sexual offense took place in Virginia, your criminal defense attorney can argue that you were in California during the time of the alleged crime and provide pieces of evidence such as hotel receipts, plane tickets, and eyewitness testimony.
Sex Was Consensual
The crime element of most sex offenses revolves around the consent of the complaining witness. Your attorney might demonstrate to the jury that the complaining witness had given consent before the sexual act. If the sexual conduct was out of consent and the complaining witness was in the right mental state, the defendant should not be guilty of the sexual offense, for instance, rape where the main crime element is the subject’s consent.
The Insanity Plea
Insanity or mental incapacity is a viable legal defense as long as your criminal defense attorney can be able to demonstrate to the judge that you had a mental defect during the occurrence of the alleged sex offense. A judge could treat a sex offense leniently if your mental state during the offense’s commission prevented you from behaving like a reasonable person. This mental state prevented you from comprehending the nature of the offense.
Nowadays, it is easy for people to be charged wrongly due to mistaken identity, especially for a sexual offense committed over the internet where there is no physical contact, for example, computer solicitation of minors. The criminal defense attorney can also be able to put doubts on the eyewitness perception and memory because of certain conditions such as poor lighting. The judge will accept a mistaken identity argument if the eyewitness is not sure of the physical appearance or height of the person he/she saw at the crime scene.
The court is aware of the possibility of false allegations on sex offenses, especially in a situation where someone is motivated to revenge against another person. Such circumstances mostly happen when there is a bitter divorce when one partner is motivated to revenge against the other. The worst mistake most people make is to assume such allegations because they are not factual that they will go away soon, but it can lead to a wrongful conviction if you do not have sufficient legal representation. Even allegations of a sexual offense can negatively affect your reputation, even if you don’t receive a conviction. Therefore, it is very important to consult with a criminal defense attorney as soon as possible to make him/her aware of the false accusations/allegations.
Find a Fairfax Criminal Defense Lawyer Near Me
A sex crime charge in Virginia can lead to life-altering consequences whether there are aggravating factors surrounding the sexual offense or not. The difference between sex offenders and aggravated sex offenders typically depends on the offense’s circumstances and the age of the complaining witness. We invite you to contact Virginia Criminal Attorney at 703-718-5533 if you are facing allegations of any sex crime for a result-oriented legal representation by our skilled and experienced attorneys.