Kentucky -- Age of Consent
RAPE AND SEXUAL ASSAULT
According to the Kentucky Penal Code, a perpetrator commits a crime of sexual assault when he
1. commits a sexual act with a victim which is
2. without her consent.
The code contains three types of sexual assaults:
Pthe crime of rape is committed when a defendant engages in "sexual intercourse" with the victim which is defined as intercourse in its "ordinary sense" and which includes penetration by a foreign object;
Psodomy is committed when the defendant engages in "deviate sexual intercourse" with the victim which is defined to mean any act of sexual gratification involving the sex organs of one person and the mouth or anus of another person; and
Psexual abuse is committed when he makes "sexual contact" with the victim, which is defined to mean the touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.
A. Lack of Consent
1. Perpetrator's Use of Forcible Compulsion
Lack of consent by the victim constitutes a key element of all sexual assault offenses; however, victims and advocates should note that "lack of consent" does NOT require that victims of sexual assault employ physical resistance against their assailant. Rather, under the Code, lack of consent results either from "forcible compulsion" used by the perpetrator, or an "incapacity to consent" by the victim. KRS 510.020.
Forcible compulsion includes not only physical force, but also extends to both implicit and explicit threats. Specifically, forcible compulsion includes a "threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter [concerning sexual offenses]." KRS 510.010. In interpreting the meaning of "forcible compulsion", courts have explicitly stated that it does not require that the perpetrator used actual physical force against the victim: simply placing the victim in a continual state of fear and subject to an environment of emotional, verbal and physical duress is sufficient. See Yarnell v. Commonwealth, Ky., 833 S.W.2d 834 (1992) (appellant was properly convicted of first degree rape and sodomy of his step-children when the children testified that they were afraid of him, when appellant constantly yelled, screamed, and directed obscenity at them, and when children went along with the deviate sexual intercourse only because of their fear of appellant). In determining whether a victim submitted because of an implied threat which placed her in fear, the courts employ a subjective standard: whether the victim was truly afraid -- rather than an objective standard, i.e. whether the average victim would have been afraid. Salsman v. Commonwealth, Ky.App., 565 S.W.2d 638 (1978).
Just as a perpetrator can be found guilty of sexual assault without employing physical force, a rape conviction can be obtained where the victim did not physically resist her attacker. The definition of forcible compulsion specifically provides that "physical resistance on the part of the victim shall not be necessary." KRS 510.010(2). Such an approach represents a significant advancement over the old law, which required that a victim display "earnest resistance."
2. Victim's Incapacity to Consent
In addition to forcible compulsion, lack of consent by the victim to the sexual act can also result from an incapacity to consent to the act. A person is deemed incapable of consent when he is: less than sixteen years old, mentally retarded or suffers from a mental illness, is mentally incapacitated, or is physically helpless. KRS 510.020:
Ha "mentally retarded person" means "a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B." KRS 510.010(5).
H"mentally incapacitated" is defined as a person "rendered temporarily incapable of appraising or controlling his conduct as a result of the influence of a controlled or intoxicating substance administered to him without his consent or as a result of any other act committed upon him without his consent." KRS 510.010(5). Note that this definition specifically requires an additional element of nonconsent on the part of the victim: that the victim did not consent to receiving the intoxicating substance.
H"Physically helpless" requires that the victim be "unconscious or for any other reason is physically unable to communicate unwillingness to an act." KRS 510.010(6)
3. Perpetrator's Possible Defense to Victim's Lack of Consent
In cases of sexual assault where the victim's lack of consent results solely from her incapacity to consent because she is less than sixteen years old, mentally retarded, mentally incapacitated or physically helpless, the perpetrator may defend against the case and be exculpated by proving that "at the time he engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for such incapacity to consent." KRS 510.030.
B. Sexual Act Committed
As stated above, the type of offense and the degree of the offense charged depends upon the type of sexual act that the perpetrator inflicts upon the victim. The crime of rape is one of unlawful sexual intercourse, that of sodomy is deviate sexual intercourse, and that of sexual abuse is sexual contact. The crimes of rape and sodomy invoke the most serious felony charges and the correspondingly greatest prison time. That of sexual abuse may be either a felony or a misdemeanor, depending upon the circumstances of how the perpetrator committed the crime. Often, too, sexual abuse is treated as a lesser included offense to rape or sodomy: so in a trial upon rape or sodomy charges, the jury may also be instructed upon sexual abuse, with the possibility of that lesser conviction resulting. See Johnson v Commonwealth, Ky., 864 S.W.2d 266 (1993).
1. Rape and Sodomy
The crimes of rape and sodomy are substantially identical except for the type of sexual act committed by the perpetrator. The crime of rape is one of "sexual intercourse" defined as "sexual intercourse in its ordinary sense and includes penetration of the sex organs or anus of one person by a foreign object manipulated by another person." KRS 510.010. A foreign object is any object except "the person of the actor." KRS 500.010(9). The Kentucky legislature has only recently amended this definition of rape so that it includes instances where the perpetrator inserts a foreign object into the victim's vagina or anus. Previous to the amendment of the definition, for example, one perpetrator who raped his wife by inserting a carrot into her vagina and into her rectum was convicted of second degree assault. Smith v. Commonwealth, Ky., 610 S.W.2d 602 (1980). Pursuant to the modern definition of sexual intercourse, however, such a case would properly be prosecuted under the rape statute. In order for rape to be found, the perpetrator must have penetrated the victim's vagina or anus. However, penetration is defined as "any penetration, however slight; emission is not required." KRS 510.010(8).
The crime of sodomy is one of "deviate sexual intercourse" which is defined as "any act of sexual gratification involving the sex organs of one person and the mouth or anus of another." KRS 510.010(1). Unlike rape, penetration is not required for the commission of sodomy. Bills v. Commonwealth, Ky., 851 S.W.2d 466 (1993). What renders sodomy a criminal offense, as with all the other sexual offenses, is that it be committed without the victim's consent. Consensual sodomy is not a crime: the Kentucky Supreme Court has declared unconstitutional the statute which criminalized consensual sodomy between members of the same sex. Wasson v. Commonwealth, Ky., 842 S.W.2d 487 (1992).
The degree of seriousness of the rape or sodomy (whether it will be deemed a Class A felony, which is the most serious classification, or a Class D felony, the least serious) depends upon whether the victim sustains serious physical injury and the age of the victim. A perpetrator commits first degree rape or sodomy when he engages in sexual intercourse or deviate intercourse with the victim by forcible compulsion, supra for definition, or with a victim who is physically helpless or less than twelve years of age. KRS 510.040 and 510.070. First degree rape and sodomy will be punished as a Class B felony unless the victim sustains "serious physical injury" during the assault, in which case it will be raised to a Class A felony. This injury must be an injury in addition to the act of the rape itself. See VanDyke v. Commonwealth, 581 S.W.2d 563 (1979). "Serious physical injury" must be essentially life-threatening in order to meet the statutory definition: "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ." KRS 500.080(15).
Second degree rape and sodomy result when the perpetrator is eighteen years of age or more and commits the sexual act with a victim less than fourteen. KRS 510.060. Here, whether the victim herself acquiesced to the act does not negate the perpetrator's criminal liability, since a victim of that age is legally incapable of granting consent. Second degree rape and sodomy are Class C felonies.
A perpetrator commits third degree rape or sodomy when he commits the sexual act with a victim who is mentally retarded or mentally incapacitated, or the perpetrator is twenty one years old and the victim is less than sixteen. Rape and sodomy in the third degree are Class D felonies. Again, "mentally retarded" and "mentally incapacitated" are defined terms under the Penal Code. Supra.
2. Sexual Abuse
The crime of sexual abuse is committed when a perpetrator subjects another person to sexual contact either through forcible compulsion or without the victim's consent. Sexual abuse may constitute the actual charged offense, or it may be the outcome (as a lesser included offense) in a trial for rape or sodomy where the jury feels that the Commonwealth has failed to prove its case on those charges. In the case of sexual abuse, lack of consent parallels the same requirements as needed in cases of rape and sodomy. However, sexual abuse cases are unique in that lack of consent may also result from "any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct." KRS 510.020(1)(c). "Sexual contact" is defined as any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party." KRS 510.010(8). "An actual touching is required, but the contact need not be directly with the body. For example, touching another person's sex organs through clothing would be within the purview of this definition." Bills v. Commonwealth, Ky., 851 S.W.2d 466 (1993). The Code does not define "intimate parts" but the Supreme Court has held that a "proper test to determine if the part of the body is 'intimate' should revolve around an examination of three factors: 1) what area of the body is touched; 2) what is the manner of the touching, and 3) under what circumstances did the touching occur." Bills, 851 S.W.2d at 472. Under this test, the Court found touching a person's thigh in a sexual manner met the definition of sexual contact. Id. Sexual gratification can be "inferred from the actions of the accused and the surrounding circumstances. The jury has wide latitude in inferring intent from the evidence." Tungate v. Commonwealth, Ky., 901 S.W.2d 41, 42 (1995).
The various degrees of sexual abuse parallel those of rape and sodomy, although carrying a lesser penalty ranging from Class D felony to Class B misdemeanor, with the degree of the offense depending upon the presence of forcible compulsion, and the age and the mental/physical condition of the victim. Like first degree rape and sodomy, a perpetrator commits first degree sexual abuse when he commits the sexual act by subjecting the victim to forcible compulsion, or where the victim is physically helpless or less than twelve years old. KRS 510.110. Second degree sexual abuse has been committed when the perpetrator subjects a victim to sexual contact, and the victim is incapable of consenting because of mental retardation or mental incapacity, or the victim is less than fourteen years of age. KRS 510.120. Second degree sexual abuse is a Class A misdemeanor. A perpetrator commits third degree sexual abuse when he subjects another to sexual contact without the latter's consent. KRS 510.130. In third degree sexual abuse, it is a defense that the victim was at least fourteen, her lack of consent was due solely to the fact that she was less than sixteen, and the actor was less than five years older than the victim. Third degree sexual abuse is a Class B misdemeanor.
3. Sexual Misconduct
Sexual misconduct is the crime of statutory rape and sodomy. KRS 510.140. While the statute provides that a perpetrator commits sexual misconduct when he engages in sexual intercourse or deviate sexual course with another without that person's consent, one must look to the case law and commentary to find the true meaning of the crime. According to the Kentucky Supreme Court, which quoted from the Commentary, the crime of sexual misconduct preserves the concept of statutory rape and statutory sodomy.:
. . . When read in conjunction with the rape and sodomy statutes, KRS 510.140 is designed primarily to prohibit nonconsensual sexual intercourse or deviate sexual intercourse under two circumstances: (1) when the victim is 14 or 15 and the defendant is less than 21; or (ii) when the victim is 12, 13, 14, or 15 and the defendant is less than 18 years of age. In this context the ages of the defendant and the victim are critical. Force is not an element of this offense. The victim is statutorily incapable of consent. . .
. . . The purpose in denominating such conduct between persons within the specified age groups as sexual misconduct rather than rape or sodomy is to eliminate an undesirable stigma. In such cases the defendant may well have been persuaded by the 'victim' to engage in the proscribed conduct. It seems unnecessarily harsh to have a defendant within the prescribed age limitation who has been convicted of such a statutory offense to bear a criminal record labeling him as a 'rapist' or 'sodomist'. KRS 510.140 takes a more realistic approach to the penalty imposed while at the same time prohibiting the undesirable conduct. . . Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (1977).
If the victim and the perpetrator are married, what effect does that marriage have upon a criminal prosecution of a sex offense?
While Kentucky criminal statutes used to forbid the prosecution of a sexual assault committed by one spouse against the other, legislation passed several years ago removed the marital rape exception. Sexual assaults committed by one spouse against another may now be prosecuted in the same manner as all other sexual offenses. However, victims and advocates should note that the marriage does impose a one-year deadline on the victim for reporting the crime of rape or sodomy to the police in order for the case to be prosecuted. In general, there is no statute of limitations for felony prosecutions, i.e., such crimes may be prosecuted at any time, no matter how remote the offense. But in cases of rape or sodomy when the perpetrator and the victim are married, the Penal Code requires that the victim must make a formal report to the police within one year after the commission of the offense. KRS 500.050(4). "The report shall be signed by the victim of the offense." KRS 500.050(4).
Additionally, if one spouse accuses the other of any sexual offense under Chapter 510, the arrest record of the accused spouse shall be expunged if the charge was either dismissed with prejudice or a verdict of not guilty on the charge resulted. Finally, in child custody or visitation suits, "no evidence that one has been charged with violation of this statute, if the person charged and the complainant are married or that such a proceeding is pending, or any evidence regarding the circumstances on which such charge is based, shall be admissible into evidence on the issue of custody or visitation, nor shall any weight be given by any court to the existence of such a proceeding or the facts on which such proceeding is based." KRS 510.310.
If a child has been sexually abused but cannot narrate the specific dates of the abuse, will a criminal prosecution still be possible?
Yes, the Supreme Court has ruled that as long as the victim can testify as to approximately when the offenses occurred, such testimony is sufficient to sustain a conviction: "in our view, it was not necessary that [victim] give specific dates that the offenses occurred. It would be wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the abuse occurred." Farler v. Commonwealth, Ky. App., 880 S.W.2d 882, 886 (1994).
If the perpetrator is intoxicated at the time of the assault, will he be able to use his intoxication as a defense to the sexual assault charge?
No. The Kentucky Supreme Court has held that voluntary intoxication is not a defense to forcible rape or sodomy. Malone v. Commonwealth, Ky., 636 S.W.2d 647 (1982).
If a perpetrator forces a victim to perform a number of sexual acts within the time period of the assault, will he be prosecuted as having committed one sexual offense or many?
The perpetrator will be prosecuted for each separate sexual act he inflicted upon the victim. In Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979), the perpetrator raped, sodomized, and then raped the victim within a fifteen minute period. The Court held that "the fact that the acts occurred in a brief period of time with the same victim and in a continuum of force does not protect Van Dyke from prosecution and conviction of each separate offense." VanDyke, 581 S.W.2d at 564.
What is the relationship between rape and incest?
The two are completely separate and independent crimes, and that of incest is not included within that of rape. "The crime of incest is neither an offense included in rape nor a lower degree of rape because incest includes elements not present in rape." Wombles v. Commonwealth, 831 S.W.2d 172 (1992). Incest is a Class C felony committed by a perpetrator who engages in sexual intercourse or deviate sexual intercourse with a relative. Rape, in contrast, is the commission of sexual intercourse with a victim without the victim's consent.
If the perpetrator has assaulted other victims, will evidence about these other assaults be admitted at trial as well?
Upon proper notice by the Commonwealth, the trial court may rule that uncharged crimes may be admitted into evidence. Such uncharged bad acts must meet the admissibility requirements of KRE 404. Generally, such acts will be admitted if "the method of the commission of the other crime or crimes is so similar as to indicate a reasonable probability that the crimes were committed by the same person. If it does, evidence that the defendant committed the other crime is admissible to show intent, motive or common plan. If it only tends to show a disposition to commit a crime, the evidence is not admissible." Lear v. Commonwealth, Ky., 884 S.W.2d 657, 659 (1994).
What if the victim is unable or unwilling to testify at trial, can a criminal conviction still be obtained?
The case law has consistently held that circumstantial evidence alone is sufficient to support a criminal conviction for rape or sodomy. Gregory v. Commonwealth, Ky., 610 S.W.2d 598 (1980), citing Cooper v. Commonwealth, Ky., 569 S.W.2d 668 (1978), etc.
What are some of the special statutory provisions applying to post-conviction sexual offenders?
Defendants convicted of first or second degree rape, first or second degree sodomy, incest, first degree unlawful transaction with a minor or use of a minor in a sexual performance are not eligible for shock probation. KRS 439.265. Sexual offenders may not be placed on parole until they have successfully completed the Sexual Offender Treatment Program. KRS 439.340.
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