What is sexual battery in Virginia?
Virginia Code Section 18.2-67.4 pertains to sexual battery. In most cases, it provides that a person is guilty of sexual battery when:
1) the person sexual abuses another;
2) by force, threat, intimidation or ruse.
How is “sexual abuse” defined?
Virginia Code 18.2-67.10 defines sexual abuse as “an act committed with the intent to sexually molest, arouse, or gratify any person, where:
a. The accused intentionally touches the complaining witness's 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.”
Cases that define “intimate parts.”
Virginia Courts have considered what “intimate parts” means in the context of sexual battery. In Sanderson v. Commonwealth, No. 1555-98-1 (Ct. of Appeals Jan. 11, 2000), the court found that a Defendant touched an "intimate part or material directly covering an intimate part" when he placed his hand on the victim's shirt, which had breast pockets.
Other courts have defined intimate parts in ways that you would expect. For example, in Hirst v. Commonwealth, 2005 Va. App. LEXIS 175 (May 3, 2005), the court held that the victim's groin area was to be an intimate part. Clearly, this is not an exhaustive list, and future decisions may broaden the meaning of intimate parts.
How much “force” is needed to be convicted of sexual battery? (More than you would think.)
In Johnson v. Commonwealth, 5 Va. App. 529 (1988) the appellate court reversed a conviction because there was not a showing of “additional force.” There, the defendant was laying next to a victim, who was pretending to be asleep, when the defendant touched the victim inappropriately. At that point, the victim attempted to get up, the defendant pushed him back down, and then the victim managed to get up an leave. In reversing the defendant’s conviction, the appellate court stated:
[W]e conclude from the language of the statutes that the legislature intended some force other than merely that force required to accomplish the unlawful touching to be included within the statutorily defined criminal acts of either sexual battery or aggravated sexual battery. Where the complaining witness is at least thirteen years old, unless some force is used to overcome the will of the complaining witness, the unlawful touching constitutes common law assault and battery.
What does “intent to gratify” mean?
The Court in Rice v. Virginia Department of Social Services, 2007 App. LEXIS 123 considered what the intention to gratify meant. Ultimately, the court found insufficient evidence to convict for sexual battery where the defendant touched the victim in an intimate part, however, that he did it solely to examine her medically.
Of course, Rice provides only an example of how "intent to gratify" may be interpreted. Every case will be judged on its own facts.
Sexual battery is a serious charge in Virignia. If you have questions, feel free to contact James Abrenio at BenGlassLaw.