The laws regarding sexual crimes against children, like many criminal offenses, take into account both intent as well as the action itself. When discussing sexual offenses against children, there is a high level of nuance, particularly as it relates to what statutes the crime committed could fall under. As I’ll explain in a bit, an offender could commit one offense that could be applied to multiple different statutes. For example, sexual abuse against a minor under the age of thirteen could either fall under the category of aggravated sexual battery or rape, with drastically different sentences being possible between the two.
What is the standard?
Generally, there must be two pieces present in order to convict someone of a sexual offense against a child: lascivious intent and sexual abuse. Lascivious intent basically refers to a state of mind wherein the offender had an intent of sexual gratification behind their actions. Though if the definition is not contained within the Virginia Code, the Virginia Supreme Court has defined lascivious intent this way: “a state of mind eager for sexual indulgence, desirous of inciting lust or of inciting sexual desire and appetite” (Viney v. Commonwealth, 269 Va. 296, 609 S.E.2d 26, 28 (2005)).
In contrast to lascivious intent, sexual abuse is defined by Virginia statutes, namely §18.2-67.10.
“’Sexual abuse’ means an act committed with the intent to sexually molest, arouse, or gratify any person where: a. the accused intentionally touches the complaining witness's [the victim] intimate parts or material directly covering such intimate parts; b. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; c. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or d. The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts.”
In order to convict for a sexual offense against a child, the prosecution must provide evidence that there was an encounter that could be considered sexual abuse, and that the perpetrator’s intent behind the action was sexual in nature. While it may be normal to a parent to kiss their child on the mouth, many people don’t realize that with lascivious intent, this can be a Class 1 misdemeanor in the state of Virginia.
It is not entirely uncommon for people to be wrongfully accused of sexual offenses against a child. Some cases involve angry children upset with being disciplined by their parents, doctors accused of sexual misconduct by a mentally ill or vindictive patient, or stepchildren accusing stepparents that they resent. Both of the prongs, lascivious intent and sexual incidence, to prove an offense can and should be challenged in court after discussing the entirety of the situation with your attorney. False allegations, if spread far enough, can destroy lives even without an indictment or conviction, as the rule of law does not apply to the public arena. Wrongful convictions cause even more devastating damage, as many of those convicted will have to register as sex offenders, putting their name, address, offense, and sometimes even their photo online. Every time their name is searched, whether to determine trustworthiness for a lease agreement or a job, or a date making sure they’ll be safe, this supposed offense will rear its head.
What is considered sexual abuse of a minor under fifteen and what is the penalty?
Sexual abuse of a minor over thirteen under fifteen basically means that the accused had committed any of the acts detailed above, against a child that fits this age criterion. The penalty is a Class 1 misdemeanor, and the penalty established by §18.2-11 of the Code of Virginia is a sentence of up to a year in prison, and a fine of $2,500. Either or both of these penalties can be levied upon conviction. There is no mandatory minimum sentencing for a Class 1 misdemeanor.
If a victim is under the age of thirteen at the time of the abuse, the accused can be charged with aggravated sexual battery under §18.2-67.4, even if no threat of force or actual force was utilized in the abuse. Additionally, the accused can be charged with aggravated sexual battery against a minor over the age of thirteen but under fifteen if there was use of “force, threat or intimidation.” Unlike sexual abuse of a minor under fifteen, the state’s position on penalties for violations of this section is as follows: “Aggravated sexual battery is a felony punishable by confinement in a state correctional facility for a term of not less than one nor more than 20 years and by a fine of not more than $100,000.” In addition to the mandatory minimum sentence of 1 year in prison, offenders can be forced to register as sex offenders and have their conviction hanging over their head for the rest of their lives.
What constitutes indecent liberties with a child?
Unlike the offenses detailed above, indecent liberties refers to a very wide array of offenses. §18.2-370 establishes the following actions as taking indecent liberties with a child:
“(1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or
(3) Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or
(4) Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361; or
(5) Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this subsection.”
To summarize, indecent liberties can refer to exposure of genitalia to a child by an adult, propositions of masturbation or direct sexual contact between the adult and child, and/or trying to get a child into a venue with the intention of having sexual contact with the child.
What are the potential penalties for indecent liberties with a minor?
The question of punishment in regards to sexual offenses against children is not as simple as stating that it would be a Class 4 felony or Class 1 misdemeanor. The courts take into account a variety of aggravating factors, such as: whether or not the child is in the foster care system and/or juvenile detention, the age of the child, the age of the offender, and the relationship of the offender to the victim. It goes without saying that those who abuse their position as the guardian of a child to gain sexual access to a child will be given additional penalties.
To start, §18.2-370 is clear that committing any of the above abuses against a child under the age of fifteen will be a Class 5 felony. While the penalties aren’t stated in this section, §18.2-10 is the section that Virginia criminal attorneys rely on to determine what penalties their clients might be facing: “ . . . (e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”
Second and subsequent offenders are likely to face much larger penalties, as stated in §18.2-370: “Any person who is convicted of a second or subsequent violation of this section is guilty of a Class 4 felony, provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in § 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section.” To break this section down, subsequent offenders can be convicted of a Class 4 felony so long as the offense is not recycled from their prior conviction, the offender was free to act on their own accord (read §53.1-151(4) for more details on this), and that the offender was legally convicted of a first offense under this section.
Offenders that are related to their victim will also face harsher sentences. “Any parent, step-parent, grandparent, or step-grandparent who commits a violation of either this section or clause (v) or (vi) of subsection A of § 18.2-370.1 (i) upon his child, step-child, grandchild, or step-grandchild who is at least 15 but less than 18 years of age is guilty of a Class 5 felony or (ii) upon his child, step-child, grandchild, or step-grandchild less than 15 years of age is guilty of a Class 4 felony.”
Parents and grandparents, whether related to the victim by blood or marriage, will face a Class 5 felony if the victim was above the age of fifteen at the time of the abuse, and a Class 4 felony if the victim was younger than fifteen at the time. The punishments for Class 4 felonies are much more stringent: “For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.” Unlike Class 5 felonies, Class 4 felonies carry a mandatory minimum sentence. However, any sexual contact between direct blood relatives is often charged under the statute regarding incest.
Any adults convicted of taking indecent liberties with a child that was under their care at the time face a Class 6 felony, regardless of the exact age of the child. Prosecutors will carefully curate the charges that they choose to bring against a defendant for maximum potential punishment. If a crime could be considered either taking indecent liberties with a child or aggravated sexual battery, prosecutors are likely to charge the accused with aggravated sexual battery, as it has a mandatory minimum sentence and nearly guarantees that the offender will be forced to register as a sex offender. All convictions can have serious ramifications on the life of the accused, and a qualified lawyer can often be the difference between prison and probation.
What is the sex offender registry and will I have to register?
The sex offender registry is a national registry that keeps track of the movements and activities of those convicted of certain sexually-based offenses. Placement on the registry can force you to provide all changes of address, notify your neighbors that you are a registered sex offender, prohibit living in certain neighborhoods in close proximity to schools, and even affect whether or not you will be able to have custody of your children. Many different databases provide public access to information from the sex offender registry, and do not provide context of the offense. Failure to register as a sex offender when required under the statute can carry additional criminal penalties under §18.2-472.1, namely that you can be convicted of a Class 1 misdemeanor, a Class 6 felony if you were convicted of a sexually violent offense or murder, and a Class 5 felony if you were a sexually violent offender that failed to register or provided false information to the registry:
“§ 18.2-472.1. Providing false information or failing to provide registration information; penalty; prima facie evidence.
- Any person subject to Chapter 9 (§ 9.1-900et seq.) of Title 9.1, other than a person convicted of a sexually violent offense or murder as defined in § 9.1-902, who knowingly fails to register or reregister, or who knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry is guilty of a Class 1 misdemeanor. A second or subsequent conviction for an offense under this subsection is a Class 6 felony.
- Any person convicted of a sexually violent offense or murder, as defined in § 9.1-902, who knowingly fails to register or reregister, or who knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry is guilty of a Class 6 felony. A second or subsequent conviction for an offense under this subsection is a Class 5 felony.”
The question of whether or not you would be forced to register as a sex offender can be answered by §9.1-902. This statute defines what types of offenses would mandate registration, and essentially mandates registration for any sort of sexual offense against a child, from aggravated sexual battery to simple indecent liberties with a child. This provision is made in the following section of that statute: “2. Where the victim is a minor or is physically helpless or mentally incapacitated as defined in § 18.2-67.10, subsection A of § 18.2-47, clause (i) of § 18.2-48, § 18.2-67.4, subsection C of § 18.2-67.5, § 18.2-361, § 18.2-366, or a felony violation of former § 18.1-191.” In essence, this includes any and all sexual offenses against a minor at any point in time, even if the offense is a misdemeanor and not a felony.
What if the victim was under the age of thirteen?
Being accused of having a sexual encounter with a minor under the age of thirteen is an incredibly serious charge and necessitates the involvement of a qualified criminal attorney. In the commonwealth of Virginia, the rape of a minor under the age of thirteen is considered to be rape in violation of §18.2-61:
“A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.”
If the offender was over the age of 18 at the time of the offense, as indicated in the police indictment, the mandatory minimum sentence outlined by this statute is a sentence of life imprisonment. “2. For a violation of clause (iii) of subsection A where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.”
How do computers factor into crimes against children?
Particularly as it relates to child pornography, computers can be valuable tools utilized by predators to facilitate illicit and inappropriate contact with children. If not related to the creation and distribution of child pornography, digital communications with children online are often used to both groom children and make logistical arrangements for sexual contact. However, this doesn’t just apply to digital communication:
“§ 18.2-374.3. Use of communications systems to facilitate certain offenses involving children
- As used in subsections C, D, and E, "use a communications system" means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communications system, the Internet, or any telecommunications, wire, computer network, or radio communications system.
- It is unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of § 18.2-370 or 18.2-374.1. A violation of this subsection is a Class 6 felony.”
The potential penalties under this statute are exacerbated if the minor is under the age of fifteen, and the following occurred:
“C. It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally:
- Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person;
- Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;
- Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361; or
- Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.
- Any person who violates this subsection is guilty of a Class 5 felony. However, if the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age, the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this subsection when the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age shall be punished by a term of imprisonment of not less than 10 years nor more than 40 years, 10 years of which shall be a mandatory minimum term of imprisonment.”
This is another excellent example of how complicated the statutes regarding sexual contact and attempted sexual contact with minors can be. There are many possible penalties for the same offense, and these penalties can be affected even by the most minor of contextual factors. It is imperative to not only find a quality and qualified Virginia criminal attorney, but also to be entirely honest with your attorney. Something that may seem irrelevant could maybe be the difference between a misdemeanor and felony conviction.