SEXUAL ABUSE (ARS 13 1404)

Are you facing a sexual abuse charge? This is a serious felony that must be handled properly in order to protect your rights. Speak to an experienced sex crimes lawyer today at Feldman & Royle.

sexual abuse definition

SEXUAL ABUSE DEFINITION

The sexual abuse definition in Arizona is found in ARS 13 1404. The offense consists of knowingly or intentionally having sexual contact with someone who is:

  1. At least 15 years old without their consent; or
  2. Under 15 provided the contact involves only the female breast.

Sexual Contact Defined

Sexual contact is defined as fondling or manipulating the genitals, anus, or the female breast, either directly or using any object, or by causing such contact by another person.

While sexual abuse, unlike statutory rape, does not include sexual intercourse or oral sexual contact, an essential element of the charge is that the act, at least to the extent that the alleged victim is 15 years of age or older, is “without consent. This means that the victim was coerced through force (or the threat of force), was incapable of consent because of drugs, alcohol, or mental defect, or was deceived as to the nature of the act, among other examples.

IMPORTANT NOTE: Consent is not a defense if you are charged and are in a “position of trust” with respect to a 15, 16 or 17-year-old victim.

Felony Classification for Sexual Abuse

The classification of sexual abuse depends initially on the age of the alleged victim. If the victim is:

  • 15 years of age or older – Class 5 Felony;
  • Under 15 years of age – Class 3 Felony.

Note that while sexual abuse may involve minors as victims, sexual abuse of a person of any age can be charged as a felony. While the age of the victim may come into play in the classification and penalty imposed, the fact that the victim is 18 years of age or older is not a defense to the charge.

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SENTENCE FOR SEXUAL ABUSE

As with most sex crimes, the sentence for sexual abuse depends not only upon which crime you were involved but also on the age of the victim.

Class 5 Felony – where the victim is at least 15 years old:

  • Probation; or
  • Between six months and a maximum of 2.5 years in prison.

Class 3 Felony – where the victim is under 15 years old:

  • Minimum of 2.5 years in prison;
  • Presumptive term of 5 years in prison;
  • Maximum term of 7.5 years in prison.

Where the minor is under the age of 15, the offense is also considered a Dangerous Crime Against Children (DCAC) pursuant to ARS 13 705.

Definition of Position of Trust

The law in Arizona says that if you have sexual contact with a minor who is from 15 to 17 years of age, the prosecution must prove that it was without consent. The law goes on to state, however, that consent is not a defense where you are in a “position of trust” with respect to that minor.

The term “position of trust” is defined in ARS 13 1401, and includes a minor’s:

  • Parents. This includes not only biological parents, but also adoptive parents, stepparents, foster parents, and legal guardians.
  • Teachers. Current or previous school or religious teachers.
  • Instructors and Coaches. These are not limited to academic instructors and includes both paid and volunteer coaches/instructors.
  • Clergymen or Priests. Current religious leaders.
  • Parent’s Significant Other. This includes people involved in a romantic or sexual relationship with the minor’s parent, adoptive parent, legal guardian, foster parent or stepparent.

Arizona Sex Offender Registry

Arizona sex offender laws pursuant to ARS 13 3821, require those convicted of sexual abuse of a minor (a person under the age of 18), to register as a sex offender and be placed on the Arizona sex offender register.

However, the fact that the victim is not a minor may not eliminate the Arizona sex offender registry requirement. Sex offender registration can also be required by the judge if you are convicted of a sexual offense under chapter 14 of title 13 (including sexual abuse), and the judge determines that the crime was sexually motivated pursuant to ARS 13-118.

SIDE NOTE: In order for such a finding to be made, it must be specially alleged by the prosecutor, and proven beyond a reasonable doubt. “Sexual motivation” in this context means that the offense was committed for the purpose of sexual gratification.

arizona sex offender registry

DEFENSES TO SEXUAL ABUSE CHARGES

Apart from various defenses that apply to a host of different crimes there are several defenses that are often raised in sex crimes and sexual abuse charges. When someone has been falsely accused of inappropriate touching, common defenses often include:

  • Coerced Confessions. Sex abuse cases often depend on a confession by the accused. Many times, these confessions are obtained only after intense interrogations. As such, attacking the reliability of a confession is paramount to a solid defense strategy.
  • Illegal Confrontation Calls. In addition to confessions made to police, there is often evidence of a secretly recorded confession made to the victim or their parent. These calls, referred to as confrontation calls, make the caller an agent of the State and as such make the caller subject to the same laws as the police. Additionally, it is also important to evaluate the legality of obtaining secretly recorded confessions pursuant to individual state laws.
  • Lack of Physical Evidence. There may be no physical evidence of sexual abuse, which means that the entire case could hinge on the testimony of a victim which may be a complete fabrication of the truth.
  • Illegally Obtained Evidence. When police collect physical evidence such as DNA, items of clothing or trace materials they will normally apply for search warrants. The circumstances, legal basis and procedural requirements for a valid search warrant must then be carefully scrutinized by an experienced sex crimes lawyer. The failure to properly obtain physical evidence can lead to valid attacks of the State’s case pursuant to illegal search and seizure laws.
  • False Allegations. As is the case with other sex crimes, often times the accuser or a person close to them has a motivation to falsely accuse. Whether the accusation is coming from an ex-romantic partner or their child, if someone is falsely accused of inappropriate touching, identifying and investigating the allegation is an integral part of a well-established defense strategy.
  • Incidental Contact.  Charges of sexual abuse can often be met by the defense that the contact alleged was not sexual. In particular with small children, there are a host of situations in which incidental contact may be made, but which was never intended to be covered as a sex offense under the law.
  • Witness Credibility. Many sexual abuse cases involve victims unknown to the defendant. Establishing and eroding the credibility of an eyewitness or victim’s testimony is an essential a part of an effective defense.
  • Technical Legal Deficiencies. Sexual abuse charges can involve charges that may have been brought under the wrong statute, with the wrong allegations or incorrect aggravating circumstances.

RELATED CRIMES

It is easy to confuse the various sex crimes since they often sound similar. Here are a couple of examples:

  • Sexual Abuse vs Sexual Assault. Sexual abuse involves only sexual contact as defined by ARS 13 1404, whereas sexual assault involves sexual intercourse.
  • Sexual Abuse vs Child Molestation. The essential difference between these two offenses is that sexual abuse covers, among other things, sexual contact with the female breast only of a minor under the age of 15. It is a class 3 felony. Child molestation covers all other sexual contact (genitals, anus) of a minor less than 15 years old. Child molestation is a class 2 felony.
  • Sexual Abuse vs Child Luring. Child luring is soliciting (or offering) sexual conduct with a person you know or have reason to know is a minor. “Sexual conduct” includes intercourse, masturbation, sexual sadomasochism, and numerous other sex acts. As noted previously, sexual abuse involves only contact. Child luring is a class 3 felony, and if the minor is under 15, it is a Dangerous Crime Against Children (DCAC).

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SEX CRIMES LAWYER IN PHOENIX

The various sex crimes, both in how they are defined, and in the penalties that may be applicable, are often confusing to those charged. In addition to the complexity of the individual crimes, the charges themselves carry a huge stigma in society. However, just because you or a loved one have been charged with a sex crime does not mean you will be convicted.

If you have been falsely accused of inappropriate touching and are facing a sexual abuse charge, get the help you need by hiring an experienced sexual abuse lawyer in Phoenix, AZ. Contact our office for a free consultation and learn what a sex crimes lawyer can do for your case of the case of a loved one.

FREQUENTLY ASKED QUESTIONS (FAQs)


1What is the statute of limitations on sexual abuse?
The statute of limitations on sexual abuse is similar to other felonies. In Arizona, felonies, with the exception of murder and sexual assault, have a 7 year statute of limitations.

2What is sexual abuse?
Sexual abuse is the touching of the female breast if the victim is under 15 years of age (regardless of consent), or touching the genitals, anus, or breast with someone over the age of 15 without their consent.

3I have been charged with sexual abuse of a girl who was 17 years old at the time. I used to be her teacher in middle school, but that was long before the events leading to the current charges against me. Isn’t it a defense that she consented to the touching?
No. The consent defense as applied to alleged victims who are 15, 16 or 17 years old, does not apply to those in a position of trust, which includes a person who is or was the minor’s teacher. It therefore applies to present and former teachers, coaches, etc.

4A woman says I brushed up against her in a crowded elevator. She complained to the cops, and I ended up getting charged with sexual abuse. Is mere touching, even by accident, a crime?
No. The contact, in order to support a charge of sexual abuse, must be intentional or knowing. That is an essential element of the offense. If the prosecution cannot prove beyond a reasonable doubt that the act was intentional or knowing, they cannot meet their burden of proof.

5I am an emergency medical technician. When called to the scene of an accident, I am sometimes required to administer first aid that might require that I perform acts that require me to make physical contact with the genitals of an injured person. Could I be convicted of sexual abuse?
No. It is a defense to a sexual abuse charge that you were rendering emergency care at the scene of an accident or other emergency.