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CHAPTER TWELVE
SEXUAL ASSAULT, RAPE, PROSTITUTION, AND RELATED
SEX CRIMES
Learning Objectives
After reading this chapter, students will be able to:
2. Learn the areas of questioning of a sexual assault victim that are prohibited by the rape
shield law.
4. State the mens rea requirement for a conviction for statutory rape.
6. Explain the reasons child pornography laws have been found unconstitutional.
7. State the current status of federal acts such as the Child Online Protection Act.
Lesson Plan
Correlated to PowerPoints
I. Sexual Relations in the United States Today
A. Sexual relations (non-marital) become a crime in the United States if:
2. They are with a minor incapable of legal consent.
4. They are performed in public.
6. They are between a therapist and a patient and in violation of the laws of
that state.
II. Rape or Sexual Assault – Assignments 4, 2, 5
Learning Objective 1: Identify the degrees of sexual assault and the conduct that distinguishes
them.
Learning Objective 2: Learn the areas of questioning of a sexual assault victim that are
prohibited by the rape shield law.
Learning Objective 3: List two exceptions to the rape shield law’s prohibitions.
Class Discussion/Activity
Have students research the sexual assault laws in their state. Does the law
still refer to sexual assault as rape? Does it divide sexual assault/rape into
categories based on the amount of harm done to the victim? How does the
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law discuss or define consent? Does it require the offender to use force
against the victim? Is the victim required to resist or fight back? Does it
have special provisions for health care providers who sexually assault their
patients? Many states will have different degrees of sexual assault. Have
your students discuss the differences in each degree.
A. Sex crimes occur often in the United States
1. The term sex crimes includes a broad range of offenses.
B. Rape is vaginal, oral, or anal penetration achieved through the use of force or
threat of force.
2. Aggravating factors
3. Statistics
a. In the United States, 1 in 6 women and 1 in 33 men experience
rape or attempted rape sometime in their lives.
b. More frequently involves younger victims; most victims under the
age of 12.
c. Most rape victims are women, and most offenders are men.
d. When the victim is over 18, physical injury is caused to 31.5
C. The importance of corroborative evidence in a rape case
2. As many as 40% of cases that come to the prosecutor are not charged.
a. Lack of corroborating evidence is probably the principal reason.
3. Victim testimony can be corroborated by:
a. Scratches, bruises, injuries, torn clothing, or blood stains from
either the victim or the suspect
b. Witnesses before, during, or immediately after the assault
c. Color photographs of injuries
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D. Possible responses to a threat of rape
Class Discussion/Activity
Divide the class into small groups and have each group discuss the
possible responses to the threat of rape discussed in the chapter. Have
them discuss the pros and cons of each possible response. Come back
together as a large group and have each small group contribute to a
conversation about the possible responses to the threat of rape.
1. How should a woman respond to an imminent threat of rape?
a. Should she scream, fight back, and try to escape? According to
studies, women who resist decrease the odds of completed rape by
b. Should she try to talk the man out of it? Women have tried many
different tactics in trying to avoid rape. They have pretended to be
pregnant or have stated they have a sexually transmitted disease or
have AIDS. They have fainted, cried hysterically, acted insane,
vomited, urinated, or acted very ill.
c. Should she grit her teeth and bear it? This is an available option
E. The “force” required in rape or sexual assault
2. States no longer require force except sufficient to overcome the victim’s
will.
4. In some states, sexual assault is defined generally to include any sexual
5. Non-consent
a. Victims and support groups have long sought reform of rape laws.
6. Where force is still part of the rape requirement, threats or fear of force
will normally serve as a substitute for actual force.
F. Defenses in acquaintance rape or after-the-date rape
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Class Discussion/Activity
There are a number of defenses a defendant accused of acquaintance rape
can use. What impact does the class think these kinds of defenses have on
the victim? Should victims of rape be protected from hearing what the
defendant claims? What effect might this have on the defendant’s
constitutional right to confront his/her accuser?
2. Rape is difficult to prove unless corroborating evidence exists.
3. Because of the close relationship between the defendant and the victim,
the defendant could use the following arguments in court:
a. Yes we had sex but . . .
i. She consented.
ii. I honestly thought she consented.
What If Scenario
What if a friend of yours tells you that she thinks a guy at a party the night before put Rohypnol
(“roofies”) in her drink and she can’t remember what happened?
G. The report of rape rule and the effect of delay in reporting
2. A long delay could result in the following:
a. Questions of the credibility of the victim
3. Limited time exists to report rape
5. “Fresh complaint” rule
H. Rape shield laws
1. Most states have enacted rape shield laws that forbid the use of evidence
of a rape victim’s past sexual conduct with others and evidence of her
reputation.
a. There are three exceptions to this rule:
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2. Before rape shield laws a victim’s reputation was “fair game.”
4. Rape shield laws apply to male as well as female victims.
6. Because consent of the victim is an important issue in rape cases, almost
III. Statutory Rape
Learning Objective 4: State the mens rea requirement for a conviction for statutory rape.
Media Tool
Statutory rape laws by state
http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-r-0376.htm
o Report on statutory rape laws in different states
o Discussion: Which states treat statutory rape most harshly?
Which are most lenient? Did anything on the website surprise
you? Is there anything in the statutes that you disagree with?
A. All states have statutes that make sexual intercourse with a person who is not the
B. Honest mistake as to the age of the minor is not permitted as a defense in virtually
all states that forbid statutory rape.
1. There are a few exceptions to the honest mistake rule
a. California
C. Consent is not a defense, because minors are not considered capable of
consenting.
IV. The Crime of Incest
Media Tool
Incest
http://www.siawso.org/
o Website for survivors of incest
o Discussion: Is it surprising to you that such a website exists?
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What information on the website do you think would be most
helpful for survivors of incest?
A. Incest may be committed by adults, but prosecution and public concern are
B. No show of force and consent is required.
C. Generally, incest in the first degree involves sexual intercourse. Incest in the
second degree involves sexual contact without penetration.
1. Most experts believe that an estimated 60,000 to 100,000 female children
2. It is believed that incest affects more than 10 percent of all American
families, with at least 5,000 cases of father-daughter incest.
4. Enforcement is practically impossible unless a member of the family
V. HIV and AIDS-Related Crimes
A. HIV is the virus that causes AIDS.
B. During the AIDS epidemics of the 1980s and 1990s, widespread fear of the spread
C. Although medical treatment has improved, many of these laws are still on the
books.
VI. Laws That Require Registration for Sex Offenders (Megan’s Law)
Media Tool
National sex offender registry
http://www.nsopw.gov/?AspxAutoDetectCookieSupport=1
o Government website of registered sex offenders
o Discussion: What information is available on the website? What
information on the website do you think is most helpful?
A. In the 1990s, states began passing registration laws for sex offenders.
B. These laws, called Megan’s laws after the name of a child killed by a sexual
C. State laws usually list offenses for which registration is mandatory and those for
which registration is within the discretion of a sentencing judge.
D. Such laws commonly include some or all of the following features:
1. Sex offenders are prohibited from living in a residence located within a
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specified distance from schools, day care facilities, or other places where
children gather; zoning or other local laws might have a similar restriction.
2. Sex offenders are required to personally notify authorities when they
change their place of employment or change their address.
3. Sex offenders are required to provide a DNA sample to authorities to be
placed in a state and national DNA database.
4. An Internet website is to be accessible to the public that includes current
information about sex offenders registered in the system.
E. In the 2010 case of Doe v. Shurtleff, a federal court upheld part of the Utah sex
F. In the 2015 case of State v. Packingham, the North Carolina Supreme Court
G. In hearings on the National Sex Offender Registry Act, the House Judiciary
Committee of the U.S. Congress reported that there were 500,000 convicted sex
What If Scenario
What if, while surfing the Internet you accidently come across a child pornography website?
VII. Civil Commitment of Sexually Dangerous Offenders
Learning Objective 5: State the conditions that must be shown for civil commitment of a sexual
predator.
Media Tool
Federal sex offender commitment process under fire
https://www.prisonlegalnews.org/(S(cmu44fjthw4200qmelvxp5qr))/24621_displayArticle.aspx
o Prison legal news website discussion of the federal sex offender commitment
process
o Discussion: What problems does the author address with the federal sex
offender commitment process? Do you agree with the author? Why/why not?
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of the U.S. Constitution.
E. Once committed under these programs, many sex offenders are never released.
F. Critics of the need for civil commitment of sexual offenders have offered
statistical support for their criticism.
VIII. Prostitution
Media Tool
A day with two hookers
http://www.youtube.com/watch?v=cm5lggi-vow
o YouTube video follows two hookers throughout a day of work
o Discussion: Are videos such as this a good way to address
prostitution? Do you agree with the statements at the end of the
video?
Class Discussion/Activity
Discuss the legalization of prostitution. List the advantages and
disadvantages to legalization. When and why did Nevada legalize
prostitution and what has been that state’s experience to date with
legalization?
A. The crime of prostitution can be one of at least three non-marital acts:
2. Offering (or soliciting) to engage in sexual relations with another person
for a fee or something of value
3. Requesting (or agreeing) to pay a fee or something of value to another
person for sexual services and acts
B. Men and women can now be convicted of prostitution; only women could be
convicted in the past.
C. Throughout the world, efforts have been made to suppress, control, organize, or
discourage prostitution, with varying degrees of success.
D. Efforts to decriminalize prostitution in the United States have met with little
success.
What If Scenario
What if your girlfriend tells you that she has found a great way to make easy money? All you
have to do is go out with some old guys and have a good time.
Class Discussion/Activity
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Discuss the legal ramifications of having police officers pose as “Johns”
and then arresting the prostitute. Could one make an argument of
entrapment? Why/why not?
E. The crimes of procuring, promoting, and pimping for the practice of prostitution
2. Because of financial gains, these people have a motive to encourage and
coerce young people into prostitution.
3. Most procurement statutes apply to those promoting prostitution, and
courts have held they do not, therefore, apply to consumers of prostitution.
F. Crimes that require proof that the crime was committed in a public place
2. Public sex acts can be charged as crimes.
a. Often requires proof the crime was committed in a public place
and for sexual gratification
IX. Touching or Other Conduct Done to Arouse Sexual Desire
A. Sexual contact without penetration (“sexual touching”), generally requires the
B. Lewd and lascivious conduct or behavior with a child statutes often require
X. Protecting Children against Sexual Exploitation: Child Pornography – Assignments
1, 4
Learning Objective 6: Explain the reasons child pornography laws have been found
unconstitutional.
Learning Objective 7: State the current status of federal acts such as the Child Online
Protection Act.
A. The U.S. Supreme Court has held that states have a compelling interest in
protecting the well-being of children.
C. Child pornography laws do not require the material to be obscene.
D. The crime of child pornography broadly includes the following:
1. Production of child pornography
3. Possessing material, knowing that it depicts minors in sexually explicit
conduct
5. Procuring child pornography
E. Schools and libraries using federal funds are obligated to use computer filters to
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F. The National Center for Missing and Exploited Children estimates that the
number of child pornography websites increased by 400 percent between 2001
and 2005.
G. Prosecutions for child pornography have increased dramatically because of
Internet sites.
a. In a February 2013 report to Congress the U.S. Sentencing Commission
said that in the year 2000 there were 700 federal pornography
prosecutions; in 2010 there were over 2,000.
b. The Commission report also noted that the average sentence length for
convictions—5 years for possession and 11 years for distribution—had
H. Prosecutions under federal statutes making criminal the possession and
distribution of child pornography are complicated by evolving Internet and
computer technology.
I. Federal legislation directed at use of the Internet to exploit children has met with
attacks on the legislation’s constitutionality.
J. Congress passed two significant pieces of legislation in 1996: the
Communications Decency Act (CDA) of 1996 (47 U.S.C. § 223) and the 1996
Child Pornography Prevention Act (CPPA) (18 U.S.C. § 2256).
1. Both were declared unconstitutional.
2. In response to these decisions, Congress passed legislation designed to
eliminate the problems in the earlier legislation. The Child Online
3. In 2003, Congress passed the PROTECT Act, which was upheld by the
U.S. Supreme Court
K. Concerned with the use of the Internet to engage in online enticement of children
to engage in sexual activity, in 2006 Congress passed the federal enticement
statute.
1. This statute makes it a crime, punishable by 10 years to life in prison, to
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XI. Movies, Videos, and Photographs
A. Are producers of X-rated videos and films, who pay adults to perform sexual acts
that are filmed for movies and videos, engaged in the business of prostitution?
B. “Sexting,” and nude photos of children taken by family members
1. When children are no longer babies and have begun to develop sexually,
are pictures taken by parents and stepparents sexual abuse?
2. Sexting may be a crime.
What If Scenario
What if a friends texts you a picture of a naked girl he says he took while she is sleeping? Your
friend says she is 20 but the picture looks more like someone who is 15.
XII. Voyeurism and Other Criminal Invasions of Privacy
Class Discussion/Activity
What are upskirting and downblousing? How have lawmakers had to adapt
the concept of privacy to address these issues? How has technology
changed the criminal statutes regarding invasion of privacy?
A. Until recent years, “peeping Toms” who trespassed or were not in a public place
were often charged as a disorderly person.
B. Many states now have voyeurism or invasion of privacy laws in their criminal
codes.
C. These laws have been toughened in many states by provisions forbidding video
voyeurism or video stalking.
Lecture Notes
Although sex is not a crime itself, there are circumstances that can make it criminal. Sexual
relations become a crime if there is no consent; a minor incapable of legally consenting is
involved; a person who is mentally deficient or an adult incapable of consenting is involved; the
sex is performed in public; the sex is performed for profit; or the sex occurs between a therapist
and a patient and in violation of the laws of that state.
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DNA, hair, or witnesses exists, it is much easier to gain a conviction and prosecutors will
probably be more likely to charge the case.
Although more than half of reported rapes are committed by friends, relatives, or acquaintances
of the victim, such rapes can be the most difficult to prosecute. A number of excuses can be
proposed by the defendant, such as she consented, I honestly thought she consented, she never
did say no, she consented then changed her mind in the middle of sex, or she consented but later
developed guilt feelings and regretted what she did.
Most students are already aware that statutory rape is sex with a minor under the age of consent.
Prostitution has been in existence for much of recorded history yet it is illegal in many places,
including most of the United States. A discussion with students’ regarding why only the state of
Nevada has legalized prostitution should be interesting. Further discussion can include how
pimps and Johns should be treated by the criminal justice system.
Key Terms
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sexual assault – The crime in most states that includes the crime of rape, as well as other lesser
degrees of assault. (p. 337)
corroborative evidence – Physical evidence or witness testimony other than from the victim
that supports the claim that a crime occurred. (p. 337)
Megan’s laws – Laws passed in many states requiring convicted sex offenders to register with a
state or local registration office. Named after a young girl killed by a convicted sex offender. (p.
346)
349)
354)
pornography – Movies, pictures, writings, and other expressions that are intended to arouse
sexual incitement and have no artistic merit or redeeming social value. (p. 354)
Assignments
1. Many states require offenders who have been convicted of sex-related offenses to register
with law enforcement as convicted sex offenders. Have students research sex offender
registration programs and requirements in different states. Have them summarize the
registration requirements—what they are required to report, how many years after release
from incarceration they are required to register, and the differences in registration
requirements for different offenses. Have students research the state registry, county, or
zip code. Have them discuss the purpose of the registration requirement for sex offenders.
Have your students discuss the responsibilities (public notification) of the police
2. Not all states have civil commitment laws for sex offenders. Have students research to
discover what states have such laws. Have them find two reputable sources on each side
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of the debate and write a paper in support of or against civil commitment laws for sex
3. This assignment can be done individually or in small groups based on the size of your
class. Rape shield laws were enacted to encourage reporting of sexual assault and to
prevent evidence that might prejudice a jury. Have students research rape shield laws and
discuss whether they are effective or not. Have them discuss the exceptions to such laws.
Have them further discuss if they believe exceptions be allowed. Then have them discuss
the difficulty of protecting the victim while at the same time ensuring that the defendant’s
rights are protected as well. Students can create a presentation to be shown to the class.
4. If your class is large enough, divide students into small groups of two or three for this
assignment. If your class is small, this assignment can be individual. Have students
research the child pornography acts that were found unconstitutional by the Supreme
Court. Have them compare those acts with the child pornography provisions of the
PROTECT act. Have students identify the differences that allowed the PROTECT act to
5. Have students search online to find the laws regarding statutory rape in your state. Have
Case Analysis and Writing Exercises
1. In cases of alleged sexual assault in which there is no evidence of bodily injury or forcible
rape, such as “date–rape” cases, the non–consent of the victim establishes the sexual assault. This
is particularly true in the (relatively few) jurisdictions that have no requirement of force or
compulsion. Is non-consent an element of the crime? If so, is evidence offered by the defendant
to prove consent an affirmative defense? Who has the duty to prove consent or non-consent, the
prosecution or the defendant? If it is the prosecution, what duty if any does the defendant have?
2. 18 U.S.C. § 2423(a) makes it a crime to transport a minor across state lines with the intent to
have the minor engage in any sexual activity that would be a criminal offense. Thus, the
transportation with the requisite intent is the crime, not the sexual activity. Indeed, courts
routinely hold that no illegal sexual activity need occur for the crime to be committed. What
“intent” is required under the statute? If a 25–year-old army soldier pays a friend to give his 15–
year-old girlfriend a ride from Pennsylvania to Texas, where the soldier is stationed, has he
violated the statute? What if his motivation is allegations by the girl that she is being abused at
3. The defendant in United States v. Husmann, 765 F.3d 169 (3rd Cir. 2014) stored multiple
child pornographic photographs in a file he stored on a 360 Share Pro program installed on his
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computer. The Share Pro program enabled others to access the files directly in a peer–to-peer
network without going through a server. Other members of the network could download files
available on the shared network. Husmann was charged and convicted under 18 U.S.C. §
2252(a)(2) for distributing child pornography. On appeal, the issue was the meaning of
“distribute” under the statute. Compare the result in Husmann with the court’s decision in
Grzybowicz, discussed in this chapter. Which decision do you think is better reasoned? Which
4. SORNA has what is called the “Romeo–and–Juliet” exception to the sex offender registration
requirements under the law. A sex offender cannot be convicted of a failure to register as a sex
offender if at the time of his conviction for a sex offense the sex was consensual and if “the
victim was at least 13 years old and the offender was not more than 4 years older than the
victim.” In United States v. Brown, 740 F.3d 145 (3rd Cir. 2014) the defendant was charged with
failing to register as a sex offender under SORNA. The sex offense the defendant was convicted
of occurred when he was 17 and involved consensual sexual contact with a victim aged 13. The
trial judge dismissed the charges, holding that even though the defendant was born 52 months
before the victim, a person is not more than 4 years older than another until that person is 5 years
older. The prosecution appealed the dismissal. It contends “more than 4 years” means more than
48 months or 1461 days (365 4, plus a leap year). Who is right? Should the court look at the
birth certificates of both parties? How exact must “4 years” be?