Sex Crimes: Definitions and Penalties Arkansas

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1 Sex Crimes: Definitions and Penalties Arkansas Rape Last Updated: December 2017 How is it defined? What are the punishments for A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: By forcible compulsion. The victim is incapable of consent by reason of being physically helpless, mentally defective, or mentally incapacitated. The victim is less than 14 years of age. However, it is an affirmative defense that the offender was not more than 3 years older than the victim. It is no defense that the victim consented to the conduct. The victim is a minor and the offender is the victim s guardian, uncle, aunt, grandparent, step-grandparent, or grandparent by adoption; brother or sister of the whole or half blood or by adoption; or nephew, niece, or first cousin. However, it is an affirmative defense that the offender was not more than 3 years older than the victim. It is no defense that the victim consented to the conduct. Rape is a Class Y felony, which is punishable by imprisonment in the following manner: An offender shall be imprisoned not less than 10 years and not more than 30 years, or life. However, if the victim is less than 14 years of age, the minimum sentence is 25 years. As of January 17, 2017, the legislature proposed to increase the available sentencing for sex offenses committed against a family or household member to a minimum sentence of 20 years. In addition to the aforementioned punishments, added penalties include: All rights of a putative father to custody, visitation, or other contact with a child conceived as a result of a rape are immediately terminated upon conviction of the rape in which the child was conceived. However, the biological mother of a child conceived as a result of rape may petition the court to reinstate the parental rights of a putative father. A putative father to a child conceived as a result of rape is required to pay child support. Further, a child conceived as a result of rape is entitled to inheritance.

2 Anything else I Deviate sexual activity: means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person; or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Forcible compulsion: physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Guardian: means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor. Mentally defective: means that a person suffers from a mental disease or defect that renders the person incapable of understanding the nature and consequences of a sexual act; or unaware a sexual act is occurring. Mentally incapacitated: means that a person is temporarily incapable of appreciating or controlling the person's conduct as a result of the influence of a controlled or intoxicating substance administered to the person without the person's consent; or that renders the person unaware a sexual act is occurring. Physically helpless a person is unconscious, physically unable to communicate a lack of consent, or rendered unaware a sexual act is occurring. Statutory Citation(s): Ark. Code (rape); Ark. Code (incarceration); Ark. Code (definitions); Ark. Code (termination of certain parental rights for putative fathers convicted of rape); 2017 AR H.B (proposed legislation). Sexual Assault in the First Degree How is it defined? A person commits the crime of sexual assault in the first degree by either: Engaging in sexual intercourse or deviate sexual activity with a minor who is not the offender s spouse and the offender is in a position of trust or authority over the victim. Position of trust or authority includes, but is not limited to, any offender: employed by or contracted with any city or county jail, or juvenile detention facility where the victim is in the custody; employed by or contracted with a local law enforcement agency, court, or local government where the offender is supervising the minor while the minor is on probation or parole;

3 that is a mandated reporter who engages in sexual intercourse or deviate sexual activity; or that is an employee in the victim s school or school district, or a temporary caretaker. Engaging in sexual intercourse or deviate sexual activity with the victim, who is less than 21 years and enrolled in K12 public or private school where the offender is a teacher, principal, athletic coach, or counselor. Note: the Supreme Court of Arkansas held that a sexual assault statute, as applied to prosecute defendant, a teacher at a public high school, for consensual sexual relationship with 18-year old student enrolled at that school violated the defendant s fundamental privacy right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. Paschal v. Arkansas, 388 S.W.3d 429 (Ark. 2012). What are the punishments for Anything else I Statutory Citation(s): It is no defense that the victim consents to the conduct. Sexual assault in the first degree is a Class A felony, which is punishable by both imprisonment and the imposition of a fine, in the following manner: An offender shall be imprisoned not less than 6 years nor more than 30 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $15,000. As of January 17, 2017, the legislature has proposed to upgrade sexual assault in the first degree to a Class Y felony if the victim is a family or household member, thereby increasing the prison sentence. Deviate sexual activity: means any act of sexual gratification involving: the penetration, however slight, of the anus or mouth of a person by the penis of another person, or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Mandated reporter: includes, but is not limited to, a child care worker or foster care work, a coroner, a day center worker, a domestic abuse advocate, a law enforcement official, a mental health professional, and a teacher. A list of all mandated reporters can be found at Ark. Code Ark. Code (sexual assault in the first degree); Ark. Code (incarceration); Ark. Code (definitions); Ark. Code (imposition of fines); 2017 AR H.B (proposed legislation). Sexual Assault in the Second Degree

4 How is it defined? What is the punishment for A person commits the crime of sexual assault in the second degree if the offender: Engages in sexual contact with another person by forcible compulsion. Engages in sexual contact with another person who is incapable of consent because he or she is physically helpless, mentally defective, or mentally incapacitated. Being 18 years, engages in sexual contact with a person who is less than 14 and not the offender s spouse. Engages in sexual contact with a minor and the offender is in a position of trust or authority over the victim. Position of trust or authority includes, but is not limited to, any offender: employed by or contracted with any city or county jail, or juvenile detention facility where the victim is in the custody; employed by or contracted with a local law enforcement agency, court, or local government where the offender is supervising the minor while the minor is on probation or parole; that is a mandated reporter; or that is the minor s guardian, an employee in the victim s school or school district, or a temporary caretaker. Note: Consent of the minor is not a defense. Being a minor, engages in sexual contact with another person who is less than 14 years, and not the person s spouse. However, it is an affirmative defense that the offender was not more than 3 years than the victim if the victim is less than 12 years; or the offender is 4 years older than the victim if the victim is 12 years or older. Being a teacher, principal, athletic coach, or counselor of a K12 public or private school engages in sexual contact with a victim who is a student enrolled in the K12 public or private school, and is less than 21 years. Note that the Supreme Court of Arkansas held that a sexual assault statute, as applied to prosecute defendant, a teacher at a public high school, for consensual sexual relationship with 18-year old student enrolled at that school violated the defendant s fundamental privacy right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. Paschal v. Arkansas, 388 S.W.3d 429 (Ark. 2012). Sexual assault in the second degree is a Class B felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: An offender shall be imprisoned for not less than 5 years nor more than 20 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $15,000. Sexual assault in the second degree committed by a minor with another person who is less than 14 years, and not the person s spouse is a Class D felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: An offender shall be imprisoned for not more than 6 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $10,000. As of January 17, 2017, the legislature has proposed to upgrade sexual assault in the second degree to a Class A felony if the victim is a family or household member; a Class C felony if committed by a minor and the victim

5 Anything else I Statutory Citation(s): is less than 14 years, not the minor s spouse, and a family or household member; a Class D felony if committed by a minor and the victim is less than 14 years and not the minor s spouse; or if otherwise committed, a Class B felony, thereby increasing the all prison sentences. Forcible compulsion: physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Guardian: means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor. Mandated reporter: includes, but is not limited to, a child care worker or foster care work, a coroner, a day center worker, a domestic abuse advocate, a law enforcement official, a mental health professional, and a teacher. A list of all mandated reporters can be found at Mentally defective: means that a person suffers from a mental disease or defect that renders the person incapable of understanding the nature and consequences of a sexual act or unaware a sexual act is occurring. Mentally incapacitated: means that a person is temporarily incapable of appreciating or controlling the person's conduct as a result of the influence of a controlled or intoxicating substance administered to the person without the person's consent, or that renders the person unaware a sexual act is occurring. Minor: means a person less than 18 years of age. Physically helpless: means a person is unconscious, physically unable to communicate a lack of consent, or rendered unaware a sexual act is occurring. Sexual contact: means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code (sexual assault in the second degree); Ark. Code (definitions); Ark. Code (imposition of fines); Ark. Code (incarceration); 2017 AR H.B (proposed legislation); Paschal v. Arkansas, 388 S.W.3d 429 (Ark. 2012) (holding prohibition of consensual sexual relations with an 18 year violates right to privacy). Sexual Assault in the Third Degree How is it defined? A person commits the crime of sexual assault in the third degree if: The offender engages in sexual intercourse or deviate sexual activity with another person who is not the actor's spouse, and the offender is in a position of trust or authority over the victim. Position of trust or authority includes, but is not limited to, any offender: employed by or contracted with any city or county jail, or juvenile detention facility where the victim is in the

6 custody (includes those that provide services, or supervision to maintaining the detainees); employed by or contracted with a local law enforcement agency, court, or local government where the offender is supervising the minor while the minor is on probation or parole; that is a mandated reporter or a member of the clergy. Being a minor, the offender engages in sexual intercourse or deviate sexual activity with another person who is less than 14 years, and not the person s spouse. However, it is an affirmative defense that the offender was not more than 3 years older than the victim. What are the punishments for Anything else I Statutory Citation(s): It is no defense that the victim consented to the conduct. Sexual assault in the third degree is a Class C felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: An offender shall be imprisoned for not less than 3 years nor more than 10 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $10,000. As of January 17, 2017, the legislature proposed to upgrade sexual assault in the third degree to a Class B felony if the victim is a family or household member, thereby increasing the prison sentence. Deviate sexual activity: means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person, or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Mandated reporter: includes, but is not limited to, a child care worker or foster care work, a coroner, a day center worker, a domestic abuse advocate, a law enforcement official, a mental health professional, and a teacher. A list of all mandated reporters can be found at Ark. Code (sexual assault in the third degree); Ark. Code (incarceration); Ark. Code (imposition of fines); Ark. Code (definitions); 2017 AR H.B (proposed legislation). Sexual Assault in the Fourth Degree

7 How is it defined? What is the punishment for Anything else I Statutory Citation(s): A person commits sexual assault in the fourth degree if the person: Being 20 years or older engages in sexual intercourse, deviate sexual activity, or sexual contact with another person who is less than 16 years, and not the person s spouse. Engages in sexual contact with another person who is not the offender s spouse, and the offender is employed with any city or county jail or facility, and the victim is in the custody of such jail or facility. Sexual assault in the third degree is a Class D felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: An offender s sentence shall not exceed 6 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $10,000. As of January 17, 2017, the legislature proposed to upgrade sexual assault in the fourth degree to a Class C felony if the victim is a family or household member, thereby increasing the prison sentence. Sexual assault in the fourth degree where the offender is over 20 years and engages in sexual contact with a person that is less than 16 years and not the offender s spouse is a Class A misdemeanor, is punishable in the following manner: An offender s sentence shall not exceed 1 year. An offender is also subject to a judicially-determined fine, in an amount not exceeding $2,500. As of January 17, 2017, the legislature proposed to upgrade sexual assault in the fourth degree to a Class D felony if the victim is a family or household member, thereby increasing the prison sentence. Deviate sexual activity: means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person, or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Sexual contact: means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code (sexual assault in the fourth degree); Ark. Code (incarceration); Ark. Code (imposition of fines); Ark. Code (definitions); 2017 AR H.B (proposing to increase sentencing). Statutory Rape

8 How is it defined? See Sexual Assault in the Third Degree and Sexual Assault in the Fourth Degree Statutory citation(s): ; Sodomy How is it defined? What are the punishments for this crime? Anything else I Statutory Citation(s): Arkansas does not appear to criminalize sodomy. Any state laws that outright prohibit sodomy are unconstitutional under Lawrence v. Texas, 539 U.S. 588 (2003). N/A N/A N/A Sexual Indecency with a Child How is it defined? A person commits sexual indecency with a child if the person: Being 18 years or older, the person solicits another person who is, or represented to be, less than 15 years to engage in sexual intercourse, deviate sexual activity, or sexual contact. With the purpose to arouse or gratify a sexual desire of either himself or another person, the person purposely exposes his or her sex organs to another person who is less than 15 years. However, it is an affirmative defense if the person is within 3 years of age of the victim. With the purpose to arouse or gratify a sexual desire of either himself or another person, the person purposely exposes his or her sex organs to a minor, and the offender is in a position of trust or authority over the minor. Trust or authority includes, but is not limited to, any offender: employed by any city or county jail, or

9 What is the punishment for any juvenile detention facility, which the minor is in custody; that is a mandated reporter; that is the minor s parent or guardian, an employee in the minor s school or school district, or a temporary caretaker. With the purpose to arouse or gratify a sexual desire of either himself or another person, the person being 18 years of age or older, causes or coerces a minor to expose his or her sex organs to the actor or another person, and the offender is in a position of trust or authority over the minor. Position of trust or authority includes, but is not limited to, an offender: employed by or contracted with any city or county jail, or juvenile detention facility where the victim is in the custody; employed by or contracted with a local law enforcement agency, court, or local government where the offender is supervising the minor while the minor is on probation or parole; that is a mandated reporter; that is the minor s guardian, an employee in the victim s school or school district, or a temporary caretaker. Being 18 years or older, the person causes or coerces another person who is less than 14 years to expose his or her sex organs or the breast of a female with the purpose to arouse or gratify a sexual desire of the actor or another person. As of March 3, 2017, the Arkansas general assembly proposed a house bill to amend and make consistent the age provisions of the offenses of sexual indecency with a child and sexual assault in the fourth degree. Sexual indecency with a child is a Class D felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: Anything else I An offender s sentence shall not exceed 6 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $10,000. Deviate sexual activity: means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person, or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Guardian: means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor. Mandated reporter: includes, but is not limited to, a child care worker or foster care work, a coroner, a day center worker, a domestic abuse advocate, a law enforcement official, a mental health professional, and a teacher. A list of all mandated reporters can be found at

10 Statutory citation(s): Sexual contact: means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Deviate sexual activity: means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person, or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Guardian: means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor. Mandated reporter: includes, but is not limited to, a child care worker or foster care work, a coroner, a day center worker, a domestic abuse advocate, a law enforcement official, a mental health professional, and a teacher. A list of all mandated reporters can be found at Sexual contact: means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Sexual Extortion How is it defined? A person commits sexual extortion if the person: With the purpose to coerce another person to engage in sexual contact or sexually explicit conduct or to distribute a recording of a person in a state of nudity or engaged in sexually explicit conduct, the person communicates a threat to damage the property or harm the reputation of the other person, or produce or distribute a recording of the other person engaged in sexually explicit conduct or depicted in a state of nudity.

11 What is the punishment for Sexual extortion is a Class B felony, which is punishable by imprisonment and the imposition of a fine, in the following manner: Anything else I An offender shall be imprisoned for not less than 5 years nor more than 20 years. An offender is also subject to a judicially-determined fine, in an amount not exceeding $15,000. Statutory Citation(s): Recording: includes without limitation an image or video. Sexual contact: means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Sexually explicit conduct: means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadomasochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, or pubic area of any person or the breast of a female. State of nudity: the appearance of human anus, human genitals, or a female breast below a point immediately above the top of the areola. Ark. Code (sexual extortion); Ark. Code (incarceration); Ark. Code (imposition of fines); Ark. Code (definitions).

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