Sexual assault is what occurs when someone engages in nonconsensual touching or contact of a sexual nature to another person. While such actions generally involve force, threat of force, or violence, it is absolutely imperative to understand that those factors need not be present to constitute sexual assault. Additionally, while sexual battery requires penetration, the crime of sexual assault does not require this act.

There are federal laws in place which address the crime of sexual assault. Many states maintain separate criminal laws that cover sexual assault. What this means is that while the definition above generally applies, the specific requirements for committing this crime can vary from state to state. The penalties for sexual assault generally include criminal fines and prison time.

One considerable difference between each of the states and how they address sexual assault is whether sexual assault is punished as aggravated assault. Some state laws consider sexual assault to be aggravated assault if the force or violence used causes bodily harm or injuries to the person who was sexually assaulted. Aggravated assault is generally punished with harsher penalties than sexual assault, such as a longer prison sentence.

Another way to put it is that sexual assault happens when any sexual activity occurs without clear consent from both parties. Sexual assault laws forbid sexual activity with a person who is unable to consent. This would include people who are mentally ill, under the age of 18, or intoxicated. Some specific examples of the many activities that would be considered sexual assault include:

  • Rape;
  • Molestation;
  • Forced sodomy; and
  • Incest.

Is Sexual Assault a Criminal or a Civil Crime?

Sexual assault, as well as sexual battery, can be tried as both a criminal and a civil crime. The different criminal statutes of each state detail how different sexual crimes are classified, and what the penalties are for each crime.

Those who have been sexually assaulted may file a civil suit against their abuser or attacker, in addition to the charges filed by the state. These civil claims are generally intended to recover monetary damages for pain and suffering. In some cases, if a criminal case against the defendant does not succeed or does not reach trial, the victim may instead seek relief through a civil case.

What Does “Sexual Touching or Contact” Include?

In a legal context, sexual touching or contact is defined as the knowing, purposeful touching of an intimate or private part of another in order to arouse sexual desire. The act of touching may be accomplished either directly to the person’s body, or through their clothing.

An example of an act that constitutes sexual touching would be inappropriately grabbing someone’s genitals, even when covered by their clothes. Other examples include kissing someone without their consent, or threatening unwanted sexual conduct.

It is important to note that there are some some situations in which touching or contact involving another person would not fulfill this element of sexual assault. This includes the medical personnel exception. If a medical person is performing a clinical examination of a patient, any touching of the patient’s private parts would not be considered contact of a sexual nature. However, this does not apply if a person is falsely representing themselves to be a medical professional. This also would not apply when an actual medical professional touched someone inappropriately, outside the scope of the medical treatment.

Another notable exception would be the parental exception. If a child’s parent is performing necessary domestic functions, such as changing a diaper or giving a bath, then any touching of a child’s private parts would not be considered contact of a sexual nature. However, if the touching is not being performed for a necessary domestic function, then the touching would rightfully be considered sexual assault and child abuse.

What Is a Sexual Assault Policy? What Are Some Issues with Sexual Assault Policies?

All institutions of higher learning, such as universities or colleges, are required by federal law to have a sexual assault policy in place. A sexual assault policy describes how the institution should address reports of sexual assault, as well as the steps the school needs to take in order to protect their students.

In order to maintain federal funding, and remain in compliance with federal law, universities are required to maintain these policies. Additionally, they must appropriately and adequately address any issues that may deny their students access to education.

In 2018, The Department of Education Office of Civil Rights investigated roughly 60 universities. This was due to the fact that their sexual assault policy was considered to be inadequate, and possibly in violation of Title IX. Title IX is a federal law providing for the abolishment of gender discrimination in public schooling.

Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” According to this law and its definition, a university may deprive a person of free and equal access to education on the basis of sex by:

  • Failing to adequately investigate sexual assault claims;
  • Victim shaming;
  • Improperly handling sexual assault claims;
  • Failing to enforce their sexual assault policy to the letter;
  • Making exceptions for particularly wealthy or notable students, staff, faculty, etc; and
  • Not taking adequate measures to protect individuals from sexual harassment, rape, or other crimes of sexual violence.

According to Title IX, if a complaint is made, the school must conduct a prompt investigation and take appropriate, equitable measures. The same is true if the school becomes reasonably aware of an instance of sexual violence. Failure to adhere to this law could result in the university facing a civil lawsuit, money damages, and other equitable remedies.

If the school refuses to cooperate with those who have concerns regarding Title IX and sexual assault policies, there are a few agencies that should be contacted. These agencies include:

  • District officials, such as superintendents;
  • The Department of Education’s Office of Civil Rights; and
  • University Officials, such as the dean.

The Department of Education will conduct an investigation into possible discrimination practices, as well as failure to provide a safe and equitable learning environment.

Are There Any Defenses for Sexual Assault?

In terms of personal responsibility, there are some defenses available for individuals charged with sexual assault. The most common examples would be:

In terms of public schools failing to establish or adhere to an adequate sexual assault policy, there are very few defenses available. All schools are aware of Title IX and what that entails for their institution. One defense that a school may have would be that they were not aware of the instance of sexual assault, and therefore could not take action according to their policy.

Do I Need an Attorney for Issues Involving a Sexual Assault Policy?

If you have been a victim of any type of sexual crime while enrolled in college, you should immediately speak with a criminal defense attorney in your area. You should also consult with an attorney if you feel that you were treated improperly, or that the investigation was poorly conducted. 

An experienced and local criminal defense attorney would be best suited for understanding your state’s specific laws regarding sexual assault, as well as sexual assault policies. Your attorney can communicate with the proper authorities and file a lawsuit on your behalf. Additionally, an attorney can also represent you in court as necessary.

If you are needing to draft a sound and comprehensive sexual assault policy, you should consult with an attorney who would be knowledgeable regarding such matters. It is imperative that you have a policy in place which clearly states that sexual assault is not tolerated, and that you adhere to that policy, in order to protect others, as well as yourself.