WHAT IS THE DIFFERENCE BETWEEN SEXUAL ASSAULT AND SEXUAL ABUSE

Virginia laws are very specific about sexual abuse and sexual assault. Sexual acts which are prohibited by law in a jurisdiction are called sex offenses or sex crimes. The key element of these sex offenses is the lack of consent to sexual activity. Sexual abuse is the intentional touching of a sexual nature. Sexual assault involves sexual penetration — oral, anal, or vaginal. Sexual abuse occurs when a person subjects another person to sexual contact without their consent, and that lack of consent is due to physical force, threat or intimidation. According to Virginia law, there are three levels of sexual abuse:

  • 1st Degree: Sexual contact without the victim’s consent due to forcible compulsion, the victim is physically helpless, or the victim is younger than age 12 and the perpetrator is age 14 or older.
  • 2nd Degree: Sexual contact with someone who is mentally defective or mentally incapacitated.
  • 3rd Degree: Sexual contact with a victim under age 16 without their consent. Sexual assault is sexual intercourse or sexual intrusion without consent.

According to Virginia law, there are three (3) levels of sexual assault:

  • 1st Degree: The perpetrator inflicts serious bodily injury, uses a deadly weapon, or the perpetrator is over age 14 and the victim is younger than twelve years old and is not married to that person.
  • 2nd Degree: Sexual intercourse or intrusion without consent and lack of consent is due to  Virginia S.A.F.E. Training and Collaboration Toolkit—Serving Sexual Violence Victims with Disabilities B3.3 Sexual Violence 101. Virginia Laws on Sexual Assault and Abuse forcible compulsion or physical helplessness.
  • 3rd Degree: Sexual intercourse or intrusion with someone who is mentally defective or mentally incapacitated, or when someone age 16 or older assaults someone less than 16 who is at least 4 years younger than the perpetrator and not married to him/her.

With criminal offenses such as sexual assault and first-degree sexual abuse, the county prosecuting attorney makes the decision whether or not to prosecute the case and what level of offense is charged. An offense is considered either a misdemeanor or a felony. With a misdemeanor, the lesser charge is punishable by fines and/or up to one year in county jail. A felony is a more serious charge, punishable by at least one year in prison. A 1st-degree sexual abuse offense is a felony, whereas 2nd and 3rd-degree sexual abuse are misdemeanors. All degrees of sexual assault are felonies.

Once a crime of sexual abuse or sexual assault is reported to law enforcement, a criminal investigation may begin. Law enforcement officers make the initial determination of what charges to file against a suspect. However, at the time an indictment is sought, the prosecuting attorney makes the decision as to what charge(s) should be brought in connection with a case.