The elements required to convict a defendant of a sexual offense in Virginia vary greatly based upon several factors. The age of this victim, the age of the alleged perpetrator, the degree of force used to perpetrate an assault, and the nature of an assault each factor into a determination of what crime, if any, a defendant can be charged and convicted of. The Virginia Court of Appeals recently heard an appeal by a defendant who challenged his aggravated sexual battery conviction based upon allegations that he molested a fourteen-year-old girl who was sleeping at her home.
The defendant in the recently decided appeal was charged with aggravated sexual battery after he allegedly touched the genitals of the cousin of someone he was dating who lived in their home. According to the facts discussed in the appellate opinion, the victim, who was fourteen years old at the time of the assault, had been sleeping on the couch in her home when she awoke to the defendant touching her genitals. After the victim notified other adults of what happened and authorities were notified, the defendant was arrested and charged with aggravated sexual battery.
To obtain a conviction for aggravated sexual battery, Virginia law requires the state to prove that a sexual act was accomplished against the will of a victim by force, threat, or intimidation. During a bench trial, the defense argued that because the victim was asleep at the time the attack initially occurred, that the state could not demonstrate that the attack was committed by force, threat, or intimidation under the law. The trial judge rejected the defense arguments, finding that the state proved that the criminal act was committed with “constructive force,” which is defined as an act without a victim’s consent or against their will. Based on that finding, the defendant was convicted of aggravated sexual battery and sentenced to twenty years in prison.