When a video was released this year showing a presidential candidate describing various physical acts he undertook concerning women, there were several conversations on the regular media cycle as well as between various legislators about what the definition of sexual assault actually was, and whether this video could be construed as a candidate actually admitting to a crime of sexual assault.
One senator, Jeff Sessions, actually stated that he did not think the act of grabbing a woman’s private parts couldn’t really be considered sexual assault – that it would be a stretch at most. Unfortunately, Senator Sessions couldn’t be more mistaken. According to the Department of Justice, sexual assault is defined as any type of sexual contact or behavior that occurs without the explicit consent of the recipient. The Department goes on to include activities such as forced sexual intercourse, attempted rape, and yes – fondling. Therefore, what the candidate described when insisting he could grab a woman’s genitals with impunity could be construed as an admission – whether in jest or not- of committing the crime of sexual assault.
No matter how the video and the fallout ultimately affect the presidential election of 2016, prosecutors will continue having to prosecute sexual crimes and sexual assaults. The crime and prosecution of sexual assault is complex. First, as seen somewhat embodied in this election cycle, it can be difficult for women to come forward and report crimes of sexual assault. It is a notoriously underreported crime. Some statistics claim that 1 out of every 6 women will experience rape or attempted rape in their lifetime, yet out of every 1,000 rapes, only about a third are reported to police. Of these, only 7 of 1,000 are actually convicted of the crime. Addressing the underreporting issue is a challenge to law enforcement – some reasons victims gave where fear of retaliation, police not helping, believing it was a personal matter (for example, spousal rape), or downplayed the incident, believe it was not important enough to report. This can be a challenge for prosecutors when victims are unwilling to testify or report the crime. The good news is that sexual assaults have been going down as a whole within the last few decades – by up to half since 1993. This is potentially because DNA evidence has allowed states to prosecute crimes more effectively, when women do report the crime and submit to a rape kit.
Some of the most controversial elements of sexual assault crimes are the potential defenses used by attorneys in favor of their clients. Indeed, another presidential candidate of this election has been accused of working against women by defending an accused rapist and getting him a lesser sentence. There is some fear as well of false accusations on defendants, where women may lie about consensual sex because of societal stigma. Sometimes, in heated child custody disputes, accusations of inappropriate sexual behavior can arise, or even raising claims to seek out a financial advantage against the defendant. These kinds of defenses can all be controversial because they ultimately raise questions about the credibility of the witness, which is one of the factors in women underreporting sexual crimes. Sometimes, defense attorneys raise the 4th amendment if there is a question of how police obtained their evidence, particularly if there were photos or computer files that led to the arrest of their client. A good criminal defense attorney will ensure that all evidence to be submitted to the court was obtained lawfully, and will object or request a motion to suppress to exclude inappropriately obtained evidence. Finally, defense attorneys must take a good hard look at how investigations were conducted, particularly when it comes to children. Sometimes, questions might be suggestive or leading, especially if posed by people in authority like teachers or parents. For example, “That man touched you there, didn’t he?” Children are, by nature, usually eager to please, and so this kind of evidence can be tainted or biased. Defense attorneys will need to be ready to prevent the introduction of this kind of evidence when representing their clients on a sexual assault case.
Essentially, sexual assault occurs when there is any touching that is sexual in nature without the explicit consent of the recipient of the contact. Sexual assault is a difficult case for both defenders and prosecutors because it can be emotionally charged, there is often not a lot of evidence, and it goes to the credibility of both the victim and defendant, which can be skewed by both sides. The good thing about the political scandal of 2016 is that it has opened a dialogue between men and women, prosecutors and defense attorneys, and politicians themselves, about how best to address and reduce sexual crimes in our country.
