We Can Help You Fight Charges and Accusations of Aggravated Sexual Abuse

Aggravated sexual assault is a more serious form of the crime of rape or sexual assault.

The circumstances that distinguish aggravated sexual assault from non-aggravated sexual assault vary from state to state.  However, the following circumstances are commonly listed as circumstances which contribute to raising the crime of sexual assault to aggravated sexual assault:

  • Using or threatening the use of a deadly weapon during the offense;
  • Causing serious physical injury during the offense;
  • Causing permanent disfigurement during the offense;
  • Causing permanent disability during the offense;
  • Acting with “extreme indifference to human life” during the offense;
  • Attempting to kill the person during the offense;
  • Committing the assault with another person;
  • Using a drug to impair a person’s ability to understand or control her conduct;
  • Committing an assault against a person who is mentally incapacitated;
  • Using your supervisory or disciplinary authority to coerce the victim;
  • Committing a sexual assault during the commission of another violent felony like burglary, arson, robbery, kidnapping, or homicide.

A serious defense to aggravated sexual assault requires a sophisticated strategy.  Our lawyers have over 50 years of experience defending our clients against the FBI, Manhattan District Attorney’s Office and the Office of the Attorney General and we are prepared to defend you against the most serious allegations of sexual assault.

False allegations, probing investigations and overzealous prosecutors have led to many innocent people facing charges of sexual assault.

If you have been charged or accused of a crime related to sexual assault, do not hesitate to call us today for a legal review of your case.

Aggravated Sexual Abuse Defined – 18 U.S.C. § 2241

Charges of aggravated sexual abuse can be brought on by force, the threat of force to a third party, or by other means-like drugging or intoxicating.

Charges involving sexual abuse of children under 12 years old are also elevated from sexual assault to aggravated sexual assault.

Below, is a detailed discussion of the aggravated sexual assault statute.

  • By Force or Threat – 18 U.S.C. § 2241(a)

In order to be convicted of aggravated sexual abuse under Section 2241(a), a defendant must knowingly cause another person to engage in a sexual act by:

  • use of force against that person; or
  • threatening or placing that person in fear that another person will be subjected to death, serious bodily injury, or kidnapping.

In order to prove a threat was made, prosecutors do not need to prove that you actually intended to carry out the threat, or had the ability to carry out the threat.  Simply proving that you made the threat will be enough.

Even if a threat of force was not directed at that other person, and instead, was directed at some third-party–like their family member–you may still be charged with aggravated sexual abuse.

Any use of force against someone in order to cause them to engage in a sexual act and any threat to that person which puts them in fear that another person may be hurt is sufficient grounds to charge you with aggravated sexual abuse under Section 2241(a).

  • By Other Means – 18 U.S.C. § 2241(b)

Anyone who knowingly causes someone to become unconscious in order to engage in a sexual act with that person may be charged with aggravated sexual assault under Section 2241(b).

This section involves the administration of a drug or intoxicant to someone without their knowledge or permission.  

According to the statute, administering or providing a drug which substantially impairs someone’s ability to make decisions or understand or control their conduct, and then engaging in a sexual act with that person, is unlawful.

Even an attempt to do so would subject you to liability under Section 2241(b)(2)(b).

  • Abuse of Children – 18 U.S.C. § 2241(c)

There is no “state of mind requirement” for charges involving sexual abuse of children under 12 years old.

This means that the government does not need to prove that the defendant knew the child was under the age of 12 years old at the time of the alleged sexual activity.

The simple fact that the sexual act occurred is enough to bring a charge of aggravated sexual assault against an individual who engages in a sexual act with a child under 12 years.

The fact that the victim is under 12 years old may also increase the minimum sentence required for this type of offense.

Crimes Related to Aggravated Sexual Assault

  • Sexual Abuse – 18 U.S.C. § 2242

In order to prove sexual abuse, prosecutors must prove:

  • that you caused another person to engage in a sexual act by threat;
  • that you did, in fact, engaged in a sexual act with another person; and
  • that person was incapable of understanding or controlling their conduct; or
  • that person was unable to decline participation.

Attempts to engage in the above conduct can also result in fines of up to $250,000, and life imprisonment.

  • Sexual Abuse of a Minor or Ward – 18 U.S.C. § 2243

For the purposes of this section, a “minor” is considered any person who is:

  • between the ages of 12 and 16 years old; and
  • is at least four years younger than the person being charged.

This means that if two 15-year-old people were to engage in a sexual act, neither could be charged with the sexual abuse of a minor, because they would be within 4 years of each other’s age.

In a prosecution for sexual abuse of a minor (between the ages of 12 and 16), a defendant may establish, by a preponderance of the evidence, that they reasonably believed that the other person had attained the age of 16 years.  

It is also a defense that the two people engaged in the sexual act were married at the time.  

In cases of sexual abuse of a minor, the prosecution does not need to prove that the defendant knew the age of the other person or that the age of the other person was within 4 years of their own.

For the purposes of this section, a “ward” is considered any person who is in official detention or under the custody and supervision of the person engaging in the sexual act with them.

Penalties for sexual abuse of a “minor” or “ward” is punishable by fines of up to $250,000, mandatory restitution for the full amount of all of the victim’s losses, and up to 15 years imprisonment.

  • Abusive Sexual Conduct  – 18 U.S.C. § 2244

Abusive “sexual contact” is considered any intentional touching.  This can be a direct, or indirect touching. For example, “sexual contact” does include intentionally touching someone through their clothing.  While a “sexual act,” on the other hand, does not include the intentional touching of another person over their clothing.

Basically, any touching that is intended to abuse, humiliate or degrade another person, or arouse the sexual desires of the defendant, will constitute “sexual contact.”

Penalties for engaging in an unwanted “sexual contact” to another person include fines of up to $250,000, mandatory restitution for the full amount of all of the victim’s losses, and up to 2 years imprisonment.

If the unwanted “sexual contact” involves a child under the age of 12 years old, the maximum term of imprisonment will be doubled.

  • Offenses Resulting in Death – 18 U.S.C. § 2245

Causing the death of another person during the commission of any of the sexual offenses listed above is punishable by death or life imprisonment.

  • Repeat Offenders  – 18 U.S.C. § 2247

If you have previously been convicted of a prior sex offense, any subsequent offenses may cause the maximum prison sentence to double.

What constitutes a “sexual act” in charges of “sexual abuse”?

18 U.S.C. § 2246(2)(A)-(D)

According to 18 U.S.C. § 2246(2), a “sexual act” includes:

  • Any contact between the penis and the vulva or the penis and the anus;
  • Any contact between the mouth and penis, mouth and vulva, or mouth and anus;
  • Any penetration, no matter how slight it may be;
  • Any intentional touching of the genitalia a person who is under 16 years old

Under this section, a “sexual act” does not include the intentional touching of another person over their clothing (as opposed to charges of “sexual contact” which does include the touching of another person over their clothing).

What is considered “mental incapacitation?”

“Mental incapacitation” refers to an individual who is:

  • under the influence of alcohol or drugs;
  • elderly or otherwise disabled or vulnerable; or
  • a child under the legal age of consent.

7 Things Everyone Needs to Know About Consent

  1. Consent must be freely given by a competent person.
  2. Any expression of a lack of consent will negate consent.  
  3. The lack of resistance does not constitute consent.
  4. Any sexual relationship or current or previous dating history also does not constitute consent.  This means that, even if you may have had a consensual sexual relationship with this individual in past or prior acts, that does not mean that they consented at the time in question.
  5. Any sleeping, unconscious, or incompetent person cannot consent.
  6. A person cannot consent under threat or in fear.
  7. Lack of consent may be inferred based on the circumstances.  This means that, all of the surrounding facts are considered when establishing whether or not a person gave consent, or whether a person did not resist because of a threat.

Penalties for Aggravated Sexual Assault

Penalties for aggravated sexual abuse includes fines of up to $250,000, mandatory restitution for the full amount of all of the victim’s losses, and life imprisonment.

Additional Consequences

  • Mandatory Restitution.  According to 18 U.S.C. § 2248, defendants convicted of an aggravated sexual assault shall be ordered to provide restitution to the victims of the offense for the full amount of their losses.  These losses are determined by the court and can include medical bills, physical therapy, lost income, attorney’s fees, fees incurred by an order of protection against you, transportation, housing, and child care expenses, and any other losses the victim may have suffered.  The issuance of restitution is mandatory and a court is not permitted to decline to issue restitution due to the defendant’s economic circumstances or the fact that the victim is already collecting compensation for their injuries from an insurance company.
  • Probation.  A judge has the discretion to allow a person convicted of sexual assault to serve a portion of their sentence on probation.  Probation may consist of supervised visits to your home by your assigned probation officer, rules restricting curfew times, use of alcohol or drugs, inability to possess a firearm, and even who you are able to associate with.  Individuals on probation frequently undergo random drug tests and have to participate in community service. Violating probation could even lead to separate and additional charges, in addition to the penalties enforced for your alleged violation.
  • Treatment.  Sex offenders must also participate in mandatory treatment consisting of counseling, medication, and other sex offender programs.
  • Sexual offender registration.  All crimes related to sexual abuse or contact require that the defendant registers with the state’s sex offender registration.  This requires a defendant to submit their name, address, and even specific information about the crime they were convicted of. This information is available to the public and can lead to difficulties finding housing and employment.
  • Inability to find housing and employment opportunities.  Due to the public accessibility of information about sex offenders, defendants often experience an inability to find an apartment to rent or find a willing employer.  Finding an apartment can be even more difficult due to the housing restrictions sex offenders face-like not being able to live within a certain distance from a school or park.
  • Deportation.  Depending on your citizenship status, deportation to your country of origin is a possibility if you are convicted of aggravated sexual assault.

Establishing a Defense to Sexual Assault and Aggravated Sexual Assault

Every case of sexual assault is different.  So, every defense established may be different.

However, there are common methods to deal with establishing a defense in these cases in order to ensure you can get through this case with the least possible damage.

Forensic experts are often used to prove and disprove certain elements of the crime.

These elements are crucial to the prosecution’s case and a defendant’s ability to disprove them is what will ultimately lead to a not guilty verdict.

First, the prosecution will have to prove that you-and, not someone else-actually committed the act.  This means proving to the jury that a third-party was not involved in the act.

Prosecutors must prove their case beyond a reasonable doubt.  This is a heavy burden, and one that works in the defendants favor because if the prosecution cannot prove each element of the offense beyond a reasonable doubt, the defendant cannot be found guilty.

The top defenses for aggravated sexual assault attack the elements of the crime.  Therefore, the following defenses focus on these elements and proving that:

  1. You did not knowingly engage in the sexual act.
  2. You did not use force.
  3. You did not threaten the other person.
  4. You did not threaten the other person with harm to a third-party.
  5. The other person consented.
  6. You had a mental disease or defect at the time the crime was committed.

In order to establish your defense, it is important to sit down with your attorney and go through exactly what happened.  Providing as much information as possible to your attorney will ensure that they are prepared to defend against any argument the prosecution may put forward.

Rest assured, your communications with your attorney are protected by attorney-client privilege and any opportunity to help your attorney tell your side of the story will ultimately aid in your defense.

Recent Cases of Aggravated Sexual Assault

Man Sentenced to 19 years for Aggravated Sexual Assault

In June of 2018, Clifford Walker, 27, was convicted of aggravated sexual assault by use of force.  Walker allegedly forcefully held his victim down while he assaulted her.

Walker, who admitted to committing the assault, was released from prison just 9 days before the assault and has numerous convictions for burglary and assault.

Walker was sentenced to 19 years and 7 months in federal prison.

In addition, Walker was also charged with 15 years supervised release.

Man Sentenced to 30 years for Aggravated Sexual Assault on a Child

In January of 2017, Ricardo Favela, 44, was sentenced to 360 months (30 years) in federal prison for aggravated sexual abuse on a child and abusive sexual contact with a child.

Favela was also sentenced to supervised release after prison, a sex offender rehabilitation program, and forced to register with his states sex offender registry.

According to the U.S. Attorney, Favela was the child’s caretaker and admitted to allowing the child to perform multiple sexual acts on him during 2015.

Work with an Attorney You Can Trust

Selecting the right attorney for sensitive cases like charges of sexual assault is crucial.  Working with an attorney you trust can make all the difference. Our lawyers are ready to earn your trust.

If you have been charged or accused of a crime related to sexual assault, do not hesitate to call us today for a legal review of your case.