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Sexually Based Offenses

RAPE

Rape, and in general, all sexually based offenses are incredibly difficult topics. Not simply because they are uncomfortable to speak about but because there is nothing more intimate and personal than the sexual relations between individuals. Sexually based offenses are considered by law enforcement to be some of the most heinous in the entire criminal justice system.

However, once an allegation is made this intimately personal matter becomes public knowledge and subject to intense public scrutiny. Simply an allegation of improper sexual conduct can be devastating to the career, reputation, and future for the defendant. However, as a society we must also recognize how difficult it is on the victim to come forward and speak knowing the scrutiny they will likely face.

The purpose of this section is to provide a brief overview of the various rape offenses and the associated penalties. Remember, that none of this is to replace a legal consultation but to provide an overview of this area of law for the non-lawyer reader:

  1. Rape (La. R.S. 14:41)
    1. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.
    2. This is the legal definition – as you can see the issue in any rape case centers on the idea of consent.
  2. First Degree Rape (La. R.S. 14: 42)
    1. First degree rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      1. When the victim resists the act to the utmost, but whose resistance is overcome by force.
      2. When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
  • When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
  1. When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.
  2. When two or more offenders participated in the act.
  3. When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.
  1. PENALTY: Life in prison with no possibility of parole.

NOTE: physical infirmity is referring to a quadriplegic or paraplegic; whereas, mental infirmity is referring to someone with an intelligent quotient (IQ) of seventy (70) or lower. So that is not referring to physical or mental inability due to impairment from alcohol or drugs.

  • Second Degree Rape (La. R.S. 14:42.1)
    1. Second Degree Rape is the same act(s) as in the First Degree statute, the difference now becomes the reason that the victim does not/cannot consent:
      1. When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      2. When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.
    2. PENALTY: Whoever commits the crime of second degree rape shall be imprisoned at hard labor for not less than five (5) nor more than forty (40) years. At least two (2) years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.
  1. Third Degree Rape (La. R.S. 14:43) (Before August 1, 2015 referred to as “Simple Rape”)
    1. Third Degree Rape is the same act(s) as in the First Degree statute, the difference now becomes the reason that the victim does not/can not consent:
      1. When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.
      2. When the victim, through unsoundness of mind, is temporarily or permanently incapable of understanding the nature of the act and the offender knew or should have known of the victim’s incapacity.
  • When the victim submits under the belief that the person committing the act is someone known to the victim, other than the offender, and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender.
  1. When the offender acts without the consent of the victim.
  1. PENALTY: Whoever commits the crime of third degree rape shall be imprisoned at hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five (25) years. Note here that there is no minimum.

Third Degree or “Simple” rape is perhaps one of the more frequent forms of rape accusations that are leveled. The Defendant is not held to an “actual knowledge” standard rather it is a “should have known” standard. Therefore, if you have a situation where one party is too incapacitated to possibly understand and/or consent and the offender has reason to suspect that – it is always best to not go forward.

These are some of the main categories of rape that we frequently see, however please remember that this is a VERY broad overview and you should still seek legal counsel if charged with rape of any kind because there are many caveats, exceptions, and defenses that are available that are not discussed here.

Rape is an incredibly intertwined and complex area of criminal law. Often times the cases are circumstantial and depend heavily upon the credibility of the various parties. Having an experienced trial lawyer who understands how to appropriately cross-examine witnesses and make a compelling case on your behalf to a jury of your peers will be indispensable to a successful verdict.

 

SEXUAL BATTERY

The simplest explanation for sexual battery is that unlike rape where penetration of some sort is needed (no matter how slight), sexual battery involves only the touching of certain body parts without consent and without penetration. A crime traumatizing for the victim and one that carries tough penalties for the Defendant however it is deemed by the law to be somewhat less severe than rape.

  1. Sexual Battery (La. R.S. 14:43.1)
    1. Involves intentional touching of the anus or genitals of the victim by the offender without consent or even if there is consent if the victim is under 15 years of age and is at least three years younger than the offender.
    2. Again there are several other caveats and conditions involving age and condition of the victim – so be sure to consult with an attorney.
    3. PENALTY: No more than 10 years with or without hard labor (no mandatory minimum).
  2. Misdemeanor Sexual Battery (La. R.S. 14:43.1.1)
    1. Misdemeanor sexual battery is the intentional touching of the breasts or buttocks of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the intentional touching of the breasts or buttocks of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when the offender acts without the consent of the victim.
    2. PENALTY: Whoever commits the crime of misdemeanor sexual battery shall be fined not more than one thousand dollars ($1,000.00), or imprisoned for not more than six months (6), or both.

NOTE: Even though a misdemeanor this offense is not eligible for an 894 to allow for an expungement. For more information, consult our expungement page here.

  • Second Degree Sexual Battery (La. R.S. 14:43.2)
    1. The actions that constitute this crime are the same as listed under Sexual Battery described above in this section, the only difference is that the offender intentionally inflicts serious bodily injury on the victim.
    2. Serious Bodily Injury – means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
    3. PENALTY: whoever commits the crime of second degree sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than fifteen years (15).
  1. Oral Sexual Battery (La. R.S. 14:43.3)
    1. Oral sexual battery is the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender, or the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim, when any of the following occur:
      1. The victim, who is not the spouse of the offender, is under the age of fifteen years and is at least three years younger than the offender.
      2. The offender is seventeen years of age or older and any of the following exist:
        1. The act is without the consent of the victim, and the victim is prevented from resisting the act because either of the following conditions exist:
          1. The victim has paraplegia, quadriplegia, or is otherwise physically incapable of preventing the act due to a physical disability.
          2. The victim is incapable, through unsoundness of mind, of understanding the nature of the act, and the offender knew or should have known of the victim’s incapacity.
  • The act is without the consent of the victim, and the victim is sixty-five years of age or older.
  1. Lack of knowledge of the victim’s age shall not be a defense.
  2. PENALTY (PART I): whoever commits the crime of oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years (10).
  3. PENALTY (PART II): whoever commits the crime of oral sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years (25) nor more than ninety-nine years (99).  At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

NOTE: That when the victim is under 13, the minimum increases from 0 to 25 years and the maximum increases from 10 years to 99 years. Also notice that lack of knowledge age is NOT a defense.

These are some of the main categories of sexual battery that we frequently see, however please remember that this is a VERY broad overview and you should still seek legal counsel if charged with sexual battery of any kind because there are many caveats, exceptions, and defenses that are available that are not discussed here.

 

OFFENSES AGAINST MINORS

There are many crimes in the Criminal Code that affect minors. This portion deals with those offenses against minors that involve sexually based offenses. Parents and children should be aware of this section of the code because it criminalized sexual acts between two consenting individuals if they have not reached the age of majority.

  1. Felony Carnal Knowledge of a Juvenile (La. R.S. 14:80)
    1. Felony carnal knowledge of a juvenile is committed when: a person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater; or a person commits a second or subsequent offense of misdemeanor carnal knowledge of a juvenile, or a person who has been convicted one or more times of violating one or more crimes for which the offender is required to register as a sex offender under R.S. 15:542 commits a first offense of misdemeanor carnal knowledge of a juvenile.
    2. Lack of knowledge of the juvenile’s age shall not be a defense.  Emission is not necessary, and penetration, however slight, is sufficient to complete the crime.
    3. PENALTY: whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more than five thousand dollars ($5,000.00), or imprisoned, with or without hard labor, for not more than ten (10) years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

NOTE: this crime is one that is enhanceable. Meaning if someone commits a misdemeanor carnal knowledge offense more than once they can be charged as a felon.

  1. Misdemeanor Carnal Knowledge of a Juvenile (La. R.S. 14:80.1)
    1. The same act(s) that constitute felony carnal knowledge of a juvenile apply here, the only difference is that the age gap between the victim and offender is greater than 2 years and less than 4 years.
    2. PENALTY: Whoever commits the crime of misdemeanor carnal knowledge of a juvenile shall be fined not more than one thousand dollars ($1,000.00), or imprisoned for not more than six months (6), or both.
  • Indecent Behavior with Juveniles (La. R.S. 14:81)
    1. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: (1) any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense; or (2) the transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender.  It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.
    2. PENALTY: whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars ($5,000.00), or imprisoned with or without hard labor for not more than seven years (7), or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
    3. PENALTY (PART II): whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years.  At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

NOTE: when the age of the victim drops below thirteen (13) the penalties increase dramatically. From a minimum of 0 increased to 2 years and a maximum of 7 increased to 25 years and the ability to have the conviction set aside under Code of Criminal Procedure Article 893 is lost.

These are some of the main categories of the offenses against minors that we frequently see, however please remember that this is a VERY broad overview and you should still seek legal counsel if charged with offenses against minors of any kind because there are many caveats, exceptions, and defenses that are available that are not discussed here.

 

INTERNET CRIMES AND PROSTITUTION

As we mentioned in the section above, the crimes we detailed in the section “Offenses Against Minors” are not the only ones in the Code. We felt it more appropriate to move even those crimes that affect minors into a larger section that deals with Internet/Computer Based Crimes. In the 21st century our human interaction is increasingly more virtual and therefore our criminal activity is more virtual. The Louisiana legislature has been slow to respond, however there are a few noteworthy statutes to mention.

From a constitutional standpoint, we must say that many of these internet and computer based statutes are frighteningly vague and broad in their scope and effect which in turns affects more conduct that would otherwise not be criminal. Many of these statutes do not even have an intent element, otherwise known as mens rea, so this requires an especially talented attorney to defend you from these accusations. Some of these crimes are detailed below

  1. Pornography Involving Juveniles (La. R.S. 14:81.1)
    1. It shall be unlawful for a person to produce, promote, advertise, distribute, possess, or possess with the intent to distribute pornography involving juveniles.
      1. The statute is incredibly lengthy and this is an exceedingly simple explanation therefore it is imperative to consult an attorney for assistance.
    2. PENALTY: Whoever intentionally possesses pornography involving juveniles shall be fined not more than fifty thousand dollars ($50,000.00) and shall be imprisoned at hard labor for not less than five years (5) or more than twenty years (20), without benefit of parole, probation, or suspension of sentence.
    3. NOTE: This is an enhanceable crime (meaning the more times committed the worse the penalties get and of course for Defendants that are distributing pornographic materials the penalties increase).
  1. “Sexting” (La. R.S. 14:81.1.1)
    1. No person under the age of seventeen years shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person.
    2. No person under the age of seventeen years shall knowingly possess or transmit an indecent visual depiction that was transmitted by another under the age of seventeen years in violation of the provisions of Paragraph (a) of this Subsection.
      1. An increasingly common and easy to commit crime – with the advent of various social media sites like Snapchat and Tinder for example.
    3. PENALTY: For a first offense, the offender shall be fined not less than one hundred dollars ($100.00) nor more than two hundred fifty dollars ($250.00), imprisoned for not more than ten days (10), or both. Imposition or execution of the sentence shall not be suspended unless the offender is placed on probation with a minimum condition that he perform two eight-hour days of court-approved community service.
    4. NOTE: This is an enhanceable crime meaning the more times committed the worse the penalties get.
  • Computer Aided Solicitation of a Minor (La. R.S. 14:81.3)
    1. Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen.
    2. PENALTIES: The penalties vary greatly depending on the age of the victim, the age of the offender, and the relative gap or difference between the two.
  1. Unlawful use of a Social Networking Website (La. R.S. 14:91.5)
    1. The following shall constitute unlawful use of a social networking website: (1)  The intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor. The provisions of this Section shall also apply to any person convicted for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses provided above.
    2. PENALTY: whoever commits the crime of unlawful use of a social networking website shall, upon a first conviction, be fined not more than ten thousand dollars ($10,000.00) and shall be imprisoned with hard labor for not more than ten years (10) without benefit of parole, probation, or suspension of sentence.
    3. NOTE: this is an enhanceable crime meaning the more times committed the worse the penalties get. Also, quite alarmingly this crime requires no intent. Simply being a sex offender and being on any social media site, regardless of your intent is enough to be found guilty. Usually a statute will require someone to have a malicious intent, however the scope of this particular statute is incredibly broad.

 

In Louisiana it is not simply prostitution that is criminalized but even further the soliciting for it, inciting and/or promoting it and of course human trafficking.

 

  1. Prostitution (Definition) (La. R.S. 14:82)
    1. Prostitution is (1) the practice by a person of indiscriminate sexual intercourse with others for compensation, (2) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.
    2. PENALTY: Whoever commits the crime of prostitution shall be fined not more than five hundred dollars ($500.00) or be imprisoned for not more than six (6) months, or both.
    3. NOTE: this is an enhanceable crime meaning the more times committed the worse the penalties get.

 

  1. Commercial Sexual Activity (Trafficking) (La. R.S. 14:82.2)
    1. It shall be unlawful for any person to knowingly give, agree to give, or offer to give anything of value to another in order to engage in sexual intercourse with a person who receives or agrees to receive anything of value as compensation for such activity.
    2. PENALTY: whoever violates the provisions of this Section shall be fined not more than five hundred dollars ($500.00) or be imprisoned for not more than six (6) months, or both.
    3. PENALTY (as it relates to trafficking): whoever violates the provisions of this Section with a person the offender knows to be under the age of eighteen years, or with a person the offender knows to be a victim of human trafficking as defined by R.S. 14:46.2 or trafficking of children for sexual purposes as defined by R.S. 14:46.3, shall be fined not more than fifty thousand dollars ($50,000.00), imprisoned at hard labor for not less than fifteen years (15) nor more than fifty years (50), or both.
    4. NOTE: this is an enhanceable crime meaning the more times committed the worse the penalties get.
  • Solicitation, Inciting, & Promoting (La. R.S. 14:83, 83.1, 83.2, 85, 86)
    1. Soliciting for prostitutes is the soliciting, inviting, inducing, directing, or transporting a person to any place with the intention of promoting prostitution.
    2. PENALTY: whoever commits the crime of soliciting for prostitutes shall be fined not more than five hundred dollars ($500.00), imprisoned for not more than six (6) months, or both.
    3. Inciting prostitution is the aiding, abetting, or assisting in an enterprise for profit in which: (1) customers are charged a fee for services which include prostitution, regardless of what portion of the fee is actually for the prostitution services, (2)  when the person knows or when a reasonable person in such a position should know that such aiding, abetting, or assisting is for prostitution, and (3) when the proceeds or profits are to be in any way divided by the prostitute and the person aiding, abetting, or assisting the prostitute.
    4. PENALTY: whoever commits the crime of inciting prostitution shall be fined not more than one thousand ($1,000.00) dollars or imprisoned for not more than one (1) year, or both.
    5. Promoting prostitution is the knowing and willful control of, supervision of, or management of an enterprise for profit in which customers are charged a fee for services which include prostitution, regardless of what portion of the fee is actually for the prostitution services.
    6. PENALTY: whoever commits the crime of promoting prostitution shall be fined not more than five thousand ($5,000.00) dollars or imprisoned with or without hard labor for not more than two (2) years, or both.
    7. Letting premises for prostitution is the granting of the right of use or the leasing of any premises, knowing that they are to be used for the practice of prostitution, or allowing the continued use of the premises with such knowledge.
    8. PENALTY: Whoever commits the crime of letting premises for prostitution shall be fined not more than five hundred dollars ($500.00), imprisoned for not more than six (6) months, or both.
    9. Enticing persons into prostitution is committed when any person over the age of seventeen entices, places, persuades, encourages, or causes the entrance of any other person under the age of twenty-one into the practice of prostitution, either by force, threats, promises, or by any other device or scheme.  Lack of knowledge of the other person’s age shall not be a defense.
    10. PENALTY: whoever commits the crime of enticing persons into prostitution shall be imprisoned, with or without hard labor, for not less than two (2) years nor more than ten (10) years.

NOTE: most of these prostitution related charges involve substantially higher penalties when the person involved is under 18 years of age.

These are some of the main categories of prostitution and internet crimes that we frequently see, however please remember that this is a VERY broad overview and you should still seek legal counsel if charged with prostitution or internet crimes of any kind because there are many caveats, exceptions, and defenses that are available that are not discussed here.

While we never guarantee outcomes, because each case is so different and unique, we have seen much success over time in aggressively defending our clients. Those results include lesser jail sentences, probation in lieu of jail time, reduced conditions and time on probation, deferred adjudication and diversion of charges, and even outright dismissal of charges. Outcomes cannot be guaranteed by anyone, but at Sudduth and Associates, we pride ourselves on guaranteeing to our clients our heart, our passion, and our every effort.

Having the experienced team of paralegals, investigators, and attorneys at Sudduth & Associates, LLC on your side is invaluable to you receiving the best possible outcome. Call us today to see how we can help you level the playing field to get the best possible outcome in your case!

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