Code Sections

Indiana Code Title 35, Article 42, Chapter 4: Sex Crimes

What is Prohibited?

It's illegal to rape or have oral, anal, or vaginal sex or penetrate the genitals or anus of another with an object by force, threat of force, or while the person was incapacitated due to mental disability or unconsciousness. Rape is a Level 3 felony, unless aggravating factors are present, namely the use of deadly force or weapon, causing serious bodily injury, or using date rape drugs. Aggravated rape is a Level 1 felony.

Also, sexual battery or touching another person to sexually arouse yourself or the victim by force, threat of force, or when the person is mentally disabled so consent for the touching can't be given. Sexual battery is also touching a person's genitals, buttocks, or female breasts when the person is unaware the touching occurred. Aggravating factors for sexual battery are the same for rape. Sexual battery is a level 6 felony or a Level 4 felony if aggravated.

For prohibited sexual contact with 14 or 15 year olds, Indiana has a sexual misconduct with a minor law:

• When a person 18-20 years old has sex or sexual conduct with a child 14 or 15 years old, it's a Level 5 Felony. If aggravating factors are present, it's a Level 1 felony.
  • If the conduct is only fondling or sexual touching, it's a Level 6 felony. If aggravating factors exists, it's a level 2 felony.
• When a person 21 or older has sex or sexual conduct with a child 14 or 15 years old, it's a Level 4 Felony. If aggravating factors are present, it's a Level 1 felony.
  • If the conduct is only fondly or sexual touching, it's a Level 5 felony.

If the victim is under 14, the crime of sex or sexual conduct is called child molestation, a Level 3 felony. It becomes a Level 1 felony with the same aggravating factors as rape or if the defendant is 21 years or older (even if supposedly consensual). If a person fondles or sexually touches a child under 14, it's a Level 4 felony, raised to Level 2 for aggravating circumstances. A person can be convicted of attempted child molestation, if he or she believed the child to be under 14 at the time, even if the child wasn't.

Penalties

The penalty ranges for the above sex crimes by level are:

• Level 1 Felony - 20-40 years incarceration and a fine of up to $10,000
• Level 2 Felony - 10-30 years incarceration and a fine of up to $10,000
• Level 3 Felony - 3-16 years incarceration and a fine of up to $10,000
• Level 4 Felony - 2-12 years incarceration and a fine of up to $10,000
• Level 5 Felony - 1-6 years incarceration and a fine up to $10,000
• Level 6 Felony - 6 months to 2.5 years incarceration and a fine up to $10,000

Note: On July 1, 2014, Indiana criminal law changed from classifying felonies as Classes A-D to Levels 1-6. Some people or websites may still refer to the old A-D system.

Defenses

Innocence, insanity, and other defenses can apply to rape. Consent can be a defense to sex crimes, if the person involved was over the age of consent, was conscious, and wanted the sexual contact, for example. However, consent is only a defense to some, limited statutory rape cases where the child and young adult are around the same age. Otherwise, the child can’t consent to the sexual conduct. Similarly, some individuals with intellectual disabilities can't consent as well.

For child molesting and sexual misconduct with a child, Indiana law permits the defense that the accused reasonably believed the child was at least 16 at the time of the sexual activity (as long as not committed through force or by using weapons or date rape drugs). Also, the sexual misconduct law provides for the additional defenses of:

• The child is or was married, as long as no aggravating factors (however, this law could possibly conflict with the fact that it's illegal to rape anyone, including your spouse, since the marital rape exemption was abolished in 1989 in Indiana)
• The defendant is not more than 4 years older than the victim, the two are dating, there were no aggravating factors, and the defendant hasn't committed a sex offense against any other person (“Romeo and Juliet” exception)