SEX CRIMES Learning Domain Review 79% Version 4
SEX CRIMESIntroduction CONSENT In determining whether or not a sex crime has been committed, it must be determined whether the victim could CONSENTunder the law and if so, whether the victim, in fact, consented. THE LACK OF CONSENT DEFINES THE ACTION AS A CRIME “A person cannot consent to an act when that person does not understand what the act is.”
SEX CRIMESIntroduction CONSENT Consent means positive cooperation in act or attitude pursuant to an exercise of free will. Consent meansagreeing to an action freely and voluntarily and with knowledge of the nature of the act or transaction involved. (P.C. 261.6)
SEX CRIMES CONSENT A victim’s compliance with a sexual act does not mean consent. A victim, who in no way consents, may comply with an attacker to avoid further injury or perceived harm to self or others. A victim’s request that a suspect use a condom or other birth control device does not constitute consent.
SEX CRIMES LACK OF CONSENT A sexual act committed under any of the following circumstances is considered NONCONSENSUAL… • Against a person’s will • Threatening to retaliate • Menace • Duress (force or fear)
SEX CRIMES WITHDRAW OF CONSENT If a victim freely consents to a sex act and then withdraws consent during the act, the defendant will not be considered guilty of a crime. In the case of rape, oral copulation, penetration with a foreign object, spousal rape, and sodomy, the presence or absence of consent at the… MOMENT OF PENETRATION …determines whether there is a crime.
SEX CRIMESCONSENT - MUST BE LEGALLY ABLE TO GIVE Could the victim consent under the law, and if so, did the victim consent?
SEX CRIMESCONSENT - MUST BE LEGALLY ABLE TO GIVE Current or previous marital or dating relationship between the victim and the perpetrator IS NOT SUFFICIENT to constitute CONSENT
SEX CRIMESCONSENT - MUST BE LEGALLY ABLE TO GIVE Under any of the following conditions, the person is unable to give legal consent (NONCONSENSUAL): • Where the victim is UNDER 18 YEARS of age (P.C. 261.5) • The VICTIM IS UNCONSCIOUS OF THE NATURE OF THE ACT, which is known or reasonably should be known by the perpetrator or by fraud (sleeping, comatose, fraud) (P.C. 261(a)(4)...
SEX CRIMESCONSENT - MUST BE LEGALLY ABLE TO GIVE • Where the victim is incapable, because of MENTAL DISORDER, DEVELOPMENTAL OR PHYSICAL DISABILITY of giving legal consent and this is known or reasonably should be known by the person committing the act (P.C. 261(a)(1)) • The VICTIM IS PREVENTED FROM RESISTING BY ANY INTOXICATING SUBSTANCE(drunk or drugged) and this condition was known, or reasonably should have been known by the accused (P.C. 261(a)(3))
SEX CRIMESCONSENT - MUST BE LEGALLY ABLE TO GIVE • When the act is accomplished against the victim's will by THREATENING TO RETALIATE (KIDNAP/FALSE IMPRISONMENT OR TO INFLICT EXTREME PAIN, SERIOUS BODILY INJURY, OR DEATH). • When the act is ACCOMPLISHED AGAINST THE VICTIM'S WILL by means of FORCE OR FEAR…
SEX CRIMESRAPE (PC 261) - CONSENT -FELONY RAPE is the act of sexual (Penile/Vaginal) intercourse (penetration, however slight) which is accomplished with a person not the spouse of the perpetrator, without consent of the victim… …under any of the following circumstances: • (P.C. 261.5): Minor below the age of 18.
SEX CRIMESRAPE P.C. 261(a)(1): where a person is incapable, because of a mental disorder or developmental or physical disability of giving legal consent, and this is known or reasonably should be known to the person committing the act. P.C. 261(a)(2): where it is accomplished against a person's will by means of force or fear or of immediate and unlawful bodily injury on the person or any other person.
SEX CRIMESRAPE P.C. 261(a)(3): where a person is prevented from resisting by any intoxicating or anesthetic substance or any controlled substance and this condition was known, or reasonably should have been known, by the accused. P.C. 261(a)(4): where a person is at the time unconscious of the nature of the act and this is known to the accused.
SEX CRIMESASSAULT/INTENT TO COMMIT RAPE AND OTHER RELATED CRIMES (P.C.220) -FELONY Assault: • An unlawful attempt • Coupled with a present ability • To commit a violent injury on another person Statute of limitation is 3 years…
SEX CRIMESASSAULT/INTENT TO COMMIT RAPE AND OTHER RELATED CRIMES (P.C.220) -FELONY Every person who assaults another with the intent to commit: • Mayhem, • Rape, • Sodomy, • Oral copulation, or... …Any violation of Penal Code Sections: • 264.1 (rape in concert), • 288(a) (lewd acts with a child / child molest), • 289 (penetration with a foreign object)
SEX CRIMESINDECENT EXPOSURE (P.C. 314) -MISDEMEANOR OR FELONY • Every person who • WILLFULLY AND LEWDLY • expose their private parts, • where there are present other persons to be OFFENDED OR ANNOYED
SEX CRIMESINDECENT EXPOSURE Indecent exposure is aMISDEMEANOR … except under the following conditions where it becomes a FELONY: FELONY…Prior conviction of … • P.C. 288(a), Lewd Acts with a Child, or • P.C. 314, Indecent Exposure • When indecent exposure occurs in an inhabited dwelling house, trailer coach, or inhabited portion of ANY BUILDING WHEN ENTRY WAS MADE WITHOUT CONSENT
SEX CRIMESORAL COPULATION - CONSENT (P.C. 288a(b)(1), 288a(c), 288a(d), 288a(f), 288a(g), and 288a(i)) - FELONY ORAL COPULATION is the act of copulating (touching) the MOUTH OF ONE PERSON WITH THE SEXUAL ORGAN OR ANUS of another person under the following circumstances: Sex Organ or Anus
SEX CRIMESORAL COPULATION 288a(b)(1): Any person who participates in an act of oral copulation with another person who is under 18 years of age 288a(c)(1): Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she, or (DUH - under 18 years of age)
SEX CRIMESORAL COPULATION 288a(c)(2): When the act is accomplished against the victim's will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury of the victim or another person or 288a(c)(3): The act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person
SEX CRIMESORAL COPULATION 288a(d): Oral copulation in concert 288a(f): Victim is as the time unconsciousof the nature of the act and this is known or reasonably should be known to the person committing the act 288a(g): The victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act
SEX CRIMESORAL COPULATION 288a(i): The victim is prevented from resisting by any intoxicating substance and this condition was known, or reasonably should have been known by the accused 288a(b)(2): oral copulation where the victim is under 16 years and the suspect is over 21 years of age (DUH - under 18 years of age) 288a(e): oral copulation where the victim is confined in state prison or local facility 288a(h): oral copulation where both the victim and perpetrator are confined in a mental hospital
SEX CRIMESORAL COPULATION 288a(j): where the victim submits under the belief that the person committing the act is their spouse 288a(k): act is committed by public official under threat of incarceration, arrest or deportation of victim or another person P.C. 293 states: The officer must inform the victim of their right to have their name withheld, and document the admonishment in the police report.
SEX CRIMESPENETRATION BY A FOREIGN OBJECT (P.C. 289(a-j) -FELONY Penetration of GENITAL OR ANAL OPENINGS • Use of a FOREIGN OR UNKNOWN OBJECT for the purposes of sexual arousal, gratification or abuse • to penetrate, however slight, • the genital or anal openings • against the person’s will or causes another person to penetrate…
SEX CRIMESPENETRATION BY A FOREIGN OBJECT • P.C. 289(a): against victim's will by force, fear or retaliation • P.C. 289(b): victim incapable of consent due to mental/physical development • P.C. 289(c): victim confined in state hospital • P.C. 289(d): victim unconsciousof act • P.C. 289(e): victim is prevented from resisting by any intoxicating or anesthetic substance or any controlled substance, and this condition was known, or reasonably should have been known by the accused
SEX CRIMESPENETRATION BY A FOREIGN OBJECT • P.C. 289(f): victim believes he/she is the victim’s spouse • P.C. 289(g): under color of authority • P.C. 289(h): victim under 18 years old • P.C. 289(i): victim under 16 years old • P.C. 289(j): victim under 14 years and perpetrator 10 or more years older
SEX CRIMESPENETRATION BY A FOREIGN OBJECT FOREIGN OBJECT: any instrument, substance, device, or part of the body, except a penis. UNKNOWN OBJECT: any foreign object, substance, instrument, device, or any part of the body, including a penis.
SEX CRIMESSODOMY - CONSENT (P.C. 286(b)(1), 286(c), 286(d), 286(f), 286(g), and 286(i)) - FELONY Penetration, however slight, of the penis of one person (contact) into the anus of another person against the person’s will.
SEX CRIMESSEXUAL BATTERY - (P.C. 243.4(a) and 243.4(d))MISDEMEANOR or FELONY FELONY Any person who touches (physical contact with the bare skin of the victim) an intimate part (the sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is… UNLAWFULLY RESTRAINED …by the accused or an accomplice, and if the touching is against the will of the person touched and is for the specific intent (purpose) of sexual arousal, sexual gratification, or sexual abuse.
SEX CRIMESSEXUAL BATTERY MISDEMEANOR • The victim’s or person’s intimate part is touched (bare skin or through clothing) • Without the consent of the victim, and • With specific intent to achieve sexual arousal, sexual gratification, or sexual abuse
SEX CRIMESSEXUAL BATTERY The distinction between felony and misdemeanor sexual battery is that in a felony there must be both UNLAWFULLY RESTRAINED AND CONTACT WITH THE VICTIM'S BARE SKIN OR AN INTIMATE PART. If either of these elements is not present, it is a misdemeanor.
SEX CRIMESPHYSICAL STATE OF THE VICTIM Once the peace officers’ and victims’ safety have been assured, the first peace officer on the scene must immediately assess the medical needs of the victims.
SEX CRIMESPHYSICAL STATE OF THE VICTIM #1 - If the victim is unconscious or injured - Secure transportation to an acute care facility, and Perform first aid required to stabilize them until emergency personnel arrive. Ask, “Are you hurt?” or “Do you need medical attention?”
SEX CRIMESPHYSICAL STATE OF THE VICTIM #2 - If the victim state they are in no pain and have no injuries requiring immediate attention, and the crime has occurred within 72 hours - Make victims as comfortable as possible, Get preliminary statement, and Make sure victims are transported to a medical facility
SEX CRIMESPHYSICAL STATE OF THE VICTIM #3 - If the victim have special needs related to age or physical or developmental condition - Access specific needs and tend to these before taking a statement
SEX CRIMESVICTIM REACTIONS AND PRESSURES SENSITIVITY AND TACT ARE ESSENTIAL Possible reactions: fear, shame, embarrassment, guilt, depression, shock, anger, betrayal, feeling of being dirty and self blame… Possible manifestations of emotional reactions: delayed reporting, lack of apparent response, denial that the crime overall, or some act(s) occurred, loss of control or ability to make decisions, acting protectively toward suspect, acting out and intentionally adding or leaving out key information.
SEX CRIMESPEACE OFFICER ATTITUDES Peace officers should try to… Be aware of how their own preconceptions and experiences can give them biased views. Consider the crime as a violent or aggressive act, rather than a sexual one. They should try to avoid… • ANGER • OVERREACTION • OVERZEALOUSNESS • APATHY • EXCESSIVE SYMPATHY
SEX CRIMESSETTING THE TONE Peace officers need to be aware of… • Their everyday terminology • Their body language • The words they use • Their demeanor • The language they use
SEX CRIMESSETTING THE TONE Sexual assault can be traumatic and generate severe emotional stress. When beginning the interview the peace officer should: • Establish rapport and explain the investigative process and the need for asking the victim questions • Reassure the victim that it is understood that this is a difficult situation and that the officer conducting the interview is there to help,
SEX CRIMESSETTING THE TONE • Make the victim as physically comfortable as possible, • Ask if the victim wants the officer to contact a support person to be present during the interview, • Let the victim know that everything possible will be done to help
SEX CRIMESINTERVIEWING THE VICTIM Requests for information include asking: • Can the victim identify the person? • What is the past relationship with the person? • To whom did the victim first tell about the assault? • Is the victim sexually active? • When and with whom did the victim last engage in sexual activity prior to the assault? • Did the suspect take anything belonging to the victim (or is anything missing)? • Will the victim provide fingerprints? (explain why)
SEX CRIMESMEDICAL/LEGAL EXAMINATION The purpose of a medical/legal examination is to collect, preserve, and document evidence. The forensic examination may also help: • Determine if there are physical signs of injuries, • Document the type and location in injuries, • Determine if there is evidence of recent sexual activity, • Determine if the physical findings are consistent with the time frame and victim’s history.
SEX CRIMESMEDICAL/LEGAL EXAMINATION If the assault occurred within the preceding 72 hours, the victim should be taken for a medical/legal examination. If the assault occurred more than 72 hours, and the victim experiences bleeding, or lingering pain and discomfort, the victim should be taken for a medical/legal examination.
SEX CRIMESVICTIM’S RIGHTS Per P.C. 293(a), the officer is responsible for informing the victim that the victim’s name will become a matter of public record unless the victim requests confidentially. P.C. 637.4(a) prohibits the officer from requesting that the victim undergo a polygraph examination.
SEX CRIMESCRIME SCENE EVIDENCE For evidence… from the scene The officer will need to collect… • Discarded items or articles, • Condoms or condom packaging, • Binding or other restraint materials (do NOT untie or cut knots, • Fingerprints, • Hair and debris, • Footprints, • Tool marks, and • Tire tracks.
SEX CRIMESCRIME SCENE EVIDENCE For evidence… that is biological The officer will need to collect… • Materials such as bedding, clothing, and towels, • Blood samples for typing, and • Blooding samples for alcohol testing and drug screening.
SEX CRIMESCRIME SCENE EVIDENCE For evidence… from the suspect The officer will need to collect… • Blood samples, • Fingernail scrapings, • Fingerprints, • Scalp hair and public hair standard sample, and • Saliva sample.
SEX CRIMESCRIME SCENE EVIDENCE For evidence… not at the scene The officer will need to collect… • Items known to have been taken by the suspect.
SEX CRIMESAVAILABLE SERVICES FOR THE VICTIM P.C. 264.2 states a peace officer is required to provide the victim with a “Victims of Domestic Violence” brochure. Contains: • Rape Crisis Centers • State Victim / Witness Services