Policymakers have long struggled to implement effective ways to protect the public from sex offenders. A sex offender is a person convicted of crimes such as sexual assault or sexual conduct with a minor. Because of the seriousness of sex offenses, many factors come into play when it comes to sentencing and penalties for sex offenders at both the state and federal levels.
On one hand, punishments have focused on rehabilitation and prevention of recidivism (committing future sex crimes). On the other, victims and advocates often push for harsh penalties and restrictions that protect the public from people they view as predators.
This article provides a brief overview of sex offenders and sex offenses.
Definitions of Sex Crimes
The definition of a sex crime differs depending on the jurisdiction. There are core offenses common to most jurisdictions, but each state has its own name and definition for sexual crimes. Common sex offenses include:
- Rape: Sometimes called sexual assault, sexual battery, or sodomy, the general definition of rape is any penetration of the genitals, anus, or mouth for sexual purposes without consent. Rape includes marital rape, date rape, and statutory rape.
- Sexual exploitation: This crime covers adult and child pornography, child abduction and molestation, sex trafficking, white slavery, prostitution, and pimping and pandering.
- Sexual abuse: Including child abuse, sexual slavery, domestic violence, and some forms of sexual assault, states with rape statutes often classify non-penetrative sexual contact as sexual abuse.
- Minor sex crimes and unclassified acts: These crimes were formerly called crimes against nature or crimes against public decency. They include indecent exposure, voyeurism, public masturbation, bestiality, necrophilia, and other unlawful paraphilias.
State laws vary widely in classifying sex offenses and how the courts handle them. Some states have lengthy lists of criminal statutes with every possible division of the crime. For instance, Alabama has a basic definition of rape. It also has:
- Sexual assault in the first degree, if the offender is a police officer, corrections officer, or teacher
- Sexual assault in the second degree, if the victim is a minor or mentally or physically unable to consent
- Sexual assault in the third degree, if they are an employee of a correctional facility or if the offender is a minor and the victim is under the age of 14
State prosecutors have considerable leeway in filing criminal charges in sex crimes cases. In most states, the victim must agree to move forward with the case. This is often referred to as pressing charges, which is not correct. Only the district attorney can decide to press charges, but if the victim refuses to testify, there may not be enough evidence to continue the case.
Although federal laws contain similar definitions of sexual offenses, most federal laws involve the unlawful transfer of people or images across state lines. 18 U.S.C. § 2421 (the Mann Act) prohibits transporting people across state lines for any sexual purpose. 18 U.S.C. § 2251 and subsequent code sections are those which deal with child pornography and the sale, distribution, and creation of such material.
States have begun to define certain behaviors in conjunction with the internet or the electronic transfer of data. California makes it a crime to distribute images of a child engaged in sexual conduct via a computer. Federal law prohibits transmission of these images if the distribution uses the Internet, the mail, or otherwise travels across state lines.
Child pornography and obscenity do not have First Amendment protection. The U.S. Supreme Court has yet to decide if very recent trends in AI-generated images cross the line into virtual child pornography.
In November 2023, students in a New Jersey high school used deepfake technology to create pornographic images of girls in their class. The faces were real, but the bodies were not. It is unclear whether this violates the laws against identifiable sexual activity.
Penalties and Sentencing
Just as states have differing names and types of crimes, penalties and sentences for sexual offenses also vary. The type of offense, the ages of the victim and offender, and even prior contact between the victim and offender can make the difference between a misdemeanor and a felony. Other factors such as race, gender, and age also make a difference.
Most states have a range of possible sentences that give a judge and prosecutor some leverage in bringing felony charges. In California, rape has a base prison sentence of three, six, or eight years. California also allows prosecutors to add enhancements to possible sentences, such as gun enhancements or drug enhancements, if the perpetrator was under the influence of certain narcotics. An offender will also face more punishment if they have a prior criminal record.
Any sexual offense involving children or violence will have a harsh sentence. A violation of the federal statutes involving the sexual exploitation of children has a minimum sentence of 15 years. In Montana, incest with a child under the age of 12 has a 100-year minimum prison term.
Sexual Offender Registry
The first sex offender registry was established in 1994. Two years later, Megan's Law required local law enforcement to make the contents of these databases available to parents. These databases of information about convicted sex offenders include names, last known locations, and most recent jobs.
Anyone convicted of a sex crime must register within three days whenever they relocate. Failing to do so is a new criminal offense. The statutes prevent offenders from living too close to schools and other locations where children may gather. Registration is part of a sex offender's parole or probation requirements.
The sex offender registration includes anyone convicted of a sexual offense. The intent is to provide a measure of public safety from sexual predators, even peeping toms and flashers. Advocates for both victims and offenders have questioned the effectiveness of the registries. They only track registered sex offenders and provide no protection from unregistered offenders or those who don't register after their release. Until we can find another method, registration is the only method available.
More Questions About Sex Offenders and Sex Offenses? Ask an Attorney
Sex offenses range from indecent exposure to possession of child pornography to sexual assault and rape. Common sense tells us these are not equal crimes, but they all carry registration requirements that can follow you for the rest of your life.
If you or someone you know is being investigated or charged with a sex crime, you need legal advice immediately. Contact an experienced criminal defense attorney near you.