SEXUAL ASSAULT

Sexual Assault is a very serious crime that can carry penalties that will follow you for the rest of your life.

What is the legal definition of Sexual Assault?

NRS 200.366 defines “Sexual Assault”:

  1. A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct, is guilty of sexual assault.
  2. Except as otherwise provided in subsections 3 and 4, a person who commits a sexual assault is guilty of a category A felony and shall be punished:
    1. If substantial bodily harm to the victim results from the actions of the defendant committed in connection with or as a part of the sexual assault, by imprisonment in the state prison:
      1. For life without the possibility of parole; or
      2. For life with the possibility of parole, with eligibility for parole beginning when a minimum of 15 years has been served.
    2. If no substantial bodily harm to the victim results, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served.
  3. Except as otherwise provided in subsection 4, a person who commits a sexual assault against a child under the age of 16 years is guilty of a category A felony and shall be punished:
    1. If the crime results in substantial bodily harm to the child, by imprisonment in the state prison for life without the possibility of parole.
    2. Except as otherwise provided in paragraph (c)., if the crime does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 25 years has been served.
    3. If the crime is committed against a child under the age of 14 years and does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 35 years has been served.
  4. A person who commits a sexual assault against a child under the age of 16 years and who has been previously convicted of:
    1. A sexual assault pursuant to this section or any other sexual offense against a child; or
    2. An offense committed in another jurisdiction that, if committed in this State, would constitute a sexual assault pursuant to this section or any other sexual offense against a child,
  • Is guilty of a category A felony and shall be punished by imprisonment in the state prison for life without the possibility of parole.
  1. For the purpose of this section, “other sexual offense against a child” means any act committed by an adult upon a child constituting:
    1. Incest pursuant to NRS 201.180;
    2. Lewdness with a child pursuant to NRS 201.230;
    3. Sado-masochistic abuse pursuant to NRS 201.262; or
    4. Luring a child using a computer, system or network pursuant to NRS 201.560, if punished as a felony.

Okay, that’s a lot of information, where do I start?

Although it is not always the case with statutes, with this particular statute, it is easiest to start at the beginning, with subsection 1, which simply defines “Sexual Assault.” Any time someone is forced into sexual penetration of any kind, and against their will, they have been sexually assaulted.

In other words, this criminalizes two types of forced penetration: where penetration is forced upon the victim, and where the victim is forced to penetrate someone else.

Please Note: This does not mean that there must be a man involved. The sexual penetration can be done by any body part or object. It is entirely possible for a woman to sexually assault another woman by forcing sexual penetration.

What do you mean by “sexual penetration”?

There are found way that forced sexual penetration can occur:

  • A female victim can have an object or body part forced into their vagina;
  • A victim, male or female, can an object or body part forced into their anus;
  • A victim, male or female, can have an object or body part forced into their mouth;
  • A victim, male or female, can have one of their body parts forced into the vagina, anus, or mouth of another person.

Please Note: The penetration must be “sexual” in nature, which is to say, forcing food into another person’s mouth is not “sexual assault” unless it is done in a way that implies a sexual act.

Okay, but what if the person wants the act done to them?

This is perhaps the most important aspect of the entire statute. Sexual assault only occurs when the alleged offender knows or should know that the victim mentally or physically incapable of resisting or understanding the nature of the act.

In other words, if the victim is mentally incapable of fully understanding the act that they are a part of, then they cannot legally consent, or agree, to being a part of the act. This usually arises in one of three situations:

  • The victim is too young to understand the nature of the act (this is covered more fully below in subsections 3 and 4);
  • The victim is intoxicated or under the influence of some chemical, drug, or other substance;
  • The victim is mentally ill or has some other mental condition.

Anyone who falls into one of these three categories is, by law, incapable of fully understanding the sexual act that is being performed, and should thus be protected.

So, if someone is drunk, they cannot legally “consent”?

Maybe. This is a very complex issue that requires examining other factors. In the first place, the prosecutor will look to see if any of the other factors are present: was the alleged victim under 16 or suffering from some mental condition that may make them incapable of making a fully informed decision? If the alleged victim is a mentally competent adult, then the prosecutor will have to look at other factors to determine whether there was a “sexual assault.” Some of those factors will include:

  • How much had the alleged victim had to drink – If the alleged victim had not consumed enough alcohol to be considered legally “drunk,” then they were probably not too impaired to make a fully informed decision. If, on the other hand, the person has so much to drink that they are having difficulty staying awake and speaking, then they were incapable of making such a decision;
  • How had the alleged victim acted prior to becoming intoxicated – In some instances, the alleged victim may have agreed to the act prior to intoxication, or had said or done something prior to intoxication that showed they understood their actions;

Please Note: This is a very difficult idea, as actions can never take the place of actual verbal consent. However, there can be instances where someone’s actions will imply enough knowledge of the alleged victim’s understanding of the sexual act.

  • Did the alleged victim and the alleged perpetrator have a prior relationship – Again, this is not an easy yes or no question. In some instances, if the alleged victim has an ongoing relationship (specifically an ongoing sexual relationship) with the alleged perpetrator, then consent might be inferred. However, this will only apply under very limited conditions;
  • Who was serving the drinks to the alleged victim – If the alleged perpetrator was mixing, making, or serving the drinks to the alleged victim, then the prosecutor may try to show that the alleged perpetrator was trying to get the alleged victim drunk in order to perform the sexual act when the victim’s mental state was altered;
  • Did the alleged victim have any substance other than alcohol in their system – alcohol can interact with other substances in many ways. If the alleged victim had any other substance in their system, even over-the-counter pain medication such as Tylenol, then the interaction might have made it difficult for them to make an informed decision;
  • The age of the alleged victim – If the alleged victim is old enough to be an adult (16 or more), but not yet old enough to legally drink, then the prosecutor may decide to charge the alleged perpetrator on the premise that the alleged victim did not fully understand how alcohol would affect them.

PLEASE NOTE: it is very important to note that none of these factors are simple black-and-white concerns. NOTHING TAKES THE PLACE OF THE INFORMED CONSENT OF A MENTALLY CAPABLE AND COHERENT (NON-INTOXICATED) ADULT.

Okay, so what about the subsections relating to underage children?

Subsections 3 and 4 deal with what is commonly referred to as “Statutory Sexual Assault (or Rape)”. These crimes are called “statutory” because there are no ‘conditions’ or ‘circumstances’ under which they do not apply. As you may have noticed, the first subsection contained a lot of vague areas where someone might get charged, depending on the circumstances. That is not the case with Sexual penetration committed against someone under the age of 16. If a sexual act is performed by an adult, against someone 15 years of age or younger, then it is automatically “sexual assault” in every situation, without exception. For a more detailed explanation of statutory sexual assault charges and how they apply, including situations where the victim was a willing participant, please click here.

Subsection 4 deals with what are known as repeat offender. Anyone who has previously been convicted of a crime that violates subsection (3) of NRS 200.366 and is being charged with a new violation of subsection (3) or (5) of NRS 200.366 is considered a “repeat offender.”

Please Note: the “repeat offender” subsection applies even if your previous conviction was in another state. So long as the crime you were convicted of would have been a violation of NRS 200.366(3) or (5) had it been in Nevada, then you will be considered a “repeat offender”. Subsection (5) includes acts that are considered:

    • Incest pursuant to NRS 201.180, which is described in more detail here;
    • Lewdness with a child pursuant to NRS 201.230, which is described in more detail here;
    • Sado-masochistic abuse pursuant to NRS 201.262, which is described in more detail here; or
    • Luring a child using a computer, system or network pursuant to NRS 201.560, if punished as a felony, which is described in more detail here.

What are the possible penalties?

The possible penalties for “sexual assault” depend greatly on the circumstances depend, firstly, whether the sexual assault was committed against an adult or someone under 16, secondly, whether there was substantial bodily harm, and finally, whether you are a repeat offender if the act was against someone under 16.

If the alleged victim was an adult, the charge will be a category A felony, carrying with it possible penalties of:

  • If substantial bodily harm resulted from the incident:
    • Life in a Nevada State prison without the possibility of parole; or
    • Life in a Nevada State prison with the possibility of parole after 15 years.
  • If no substantial bodily harm resulted from the incident:
    • Life in a Nevada State prison with the possibility of parole after 10 years.

If the alleged victim was under 16 years old, the charge will be a category A felony, carrying with it possible penalties of:

  • If substantial bodily harm resulted from the incident:
    • Life in a Nevada State prison without the possibility of parole.
  • If no substantial bodily harm resulted from the incident:
    • If the child is 14 or 15 years old:
      • Life in a Nevada State prison with the possibility of parole after 25 years;
    • If the child is under the age of 14:
      • Life in a Nevada State prison with the possibility of parole after 35 years.

If the alleged perpetrator is a “repeat offender”, the charge will be a category A felony, carrying with it possible penalties of:

  • Life in a Nevada State Prison without the possibility of parole.

BUT WAIT, THAT’S NOT ALL

Any person convicted of a sexual assault in Nevada must register themselves as a sex offender. Registration as a sex offender can affect where you are able to live, work, travel, or even simply exist. Also, the sex offender registry is accessible to anyone who cares to view it, including employers, landlords, schools, and neighbors. Registration on the sex offender registry can last for many years. For a more in-depth discussion regarding the sex offender registry please click here.

Are there any Defenses?

There are defenses that might apply to your situation, however, with “sexual assault” those defenses become more difficult to prove. Also, as noted above, if the alleged victim was under 16 years old, there are no defenses. Sexual penetration committed against someone under 16 years old is always a violation of NRS 200.366.

If the alleged victim is an adult with no mental conditions, who was not intoxicated at the time, then the following defenses might apply:

  • Consent – As noted above, if your attorney can prove that the alleged victim consented to the sexual penetration, then the charges should be dropped or dismissed.
  • Lack of Evidence– If the prosecution cannot prove, beyond a reasonable doubt, every element of the “sexual assault” as they are described above, then the charges against you should be dropped or dismissed.
  • False allegations – This is similar to both of the other defenses in that it essentially relies on raising a reasonable doubt about the charges, though in this defense it is a reasonable doubt about the truth of the allegations, rather than a reasonable doubt in any of the specific elements of the crime. It is important to note, however, that Nevada’s Rape Shield Law prevents evidence of an alleged victim’s prior sexual conduct, unless that conduct relates to prior false allegations of prior false allegations.

Please Note: As already described above, there is no “implied consent” defense. Silence is not the same as consent, and any denial, refusal, resistance or even a lack of consent creates a presumption that the victim was unwilling.

What should I do if I’ve been charged with Sexual Assault?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.

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