Sex Crimes

Under what circumstances may sexual activity be a crime?

Sexual activity may be a crime when any of three issues arise: lack of consent, statutory age, or regulatory preclusion.

Consent may be lacking when any of the following circumstances exist: force, threat of force, a party being unconscious or unaware, the administration of drugs or foreign substances to impair a party’s ability to exercise control, or when a party is incapable of providing consent, such as when suffering from a mental disability.

There are statutes which set forth specific age criteria for certain sexual actions. When a party is underage, sexual activity is still a chargeable offense, even if performed consensually.

There are also certain classifications of that make sexual activity a crime even among consenting adults. These are prostitution, incest, bestiality, and loosely related, bigamy and polygamy.

Which physical actions are addressed as sex crimes?

There are various classifications of physical sexual activity, all with specific legal definitions.

  • Sexual intercourse is vaginal, oral or anal sex. The key legal terminology is “penetration, however slight.”
  • Deviate sexual intercourse includes oral and anal sex between human beings, any form of sexual intercourse with an animal, and the penetration, however slight, of the genitals or anus of another person with a foreign object without a good faith medical, hygienic, or law enforcement reason.
  • Indecent contact is the touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire in either person. This would include the touching of the breasts or butt when performed with the requisite intent.

What if the actor didn’t know the other actor was too young?

There is such a defense called “Mistake as to Age,” where the actor must prove by a preponderance of the evidence (more likely than not) that he/she reasonably believed the other party to be old enough. However, this defense is only available if the age the criminality of the conduct depends upon is fourteen years or older.

There is no mistake of age defense available to the production of child pornography.

What are some of the commonly charged sex crimes?

Rape (18 Pa.C.S. § 3121): sexual intercourse lacking consent due to circumstances explained above.

Statutory Sexual Assault (18 Pa.C.S. § 3122.1): sexual intercourse between unmarried participants, one under 16 and the other 4 or more years older

Involuntary Deviate Sexual Intercourse (18 Pa.C.S. § 3123): deviate sexual intercourse lacking consent due to circumstances explained above.

Sexual Assault (18 Pa.C.S. § 3124.1): sexual intercourse, other than rape or involuntary deviate sexual intercourse, lacking consent

Institutional Sexual Assault (18 Pa.C.S. § 3124.2): sexual intercourse, deviate sexual intercourse, or indecent contact between a State or County employee or agent and an inmate, detainee, patient, or facility resident.

Aggravated Indecent Assault (18 Pa.C.S. § 3125): the penetration however slight of the genitals or anus with a part of the body other than for good faith medical, hygienic, or law enforcement reasons, without consent or requisite age criteria, as explained above.

Indecent Assault (18 Pa.C.S. § 3126): indecent contact or intentionally causing contact with seminal fluid, urine, or feces for the purpose of arousing sexual desire, without consent or requisite age criteria as explained above.

Indecent Exposure (18 Pa.C.S. § 3127): exposing the genitals in any public place or where there are others present under circumstances in which actor knows or should know that the conduct is likely to offend, affront, or alarm.

Sexual Intercourse with Animal (18 Pa.C.S. § 3129): person engaging in any form of sexual intercourse with an animal.

Open Lewdness (18 Pa.C.S. § 5901): any lewd act which actor knows is likely to be observed by others who would be affronted or alarmed.

Prostitution (18 Pa.C.S. § 5902): being an inmate of a house of prostitution, engaging in sexual activity as a business, loitering or being within view of any public place for the purpose of being hired to engage in sexual activity, or through a variety of actions, promoting prostitution.

Obscene and Other Sexual Materials and Performances (18 Pa.C.S. § 5903): a vast array of actions, including but not limited to displaying, distributing, designing, producing, or possessing under illegal circumstances obscene materials.

Sexual Abuse of Children (18 Pa.C.S. § 6312): a variety of acts relating to the production, dissemination, and possession of child pornography.

Corruption of Minors (18 Pa.C.S. § 6301): by any act corrupting or tending to corrupt the morals of a minor, or aiding, abetting, enticing, or encouraging a minor in the commission of any crime. Note, this crime may apply to non-sexual conduct, but is punished more harshly when the conduct is of a sexual nature.

Unlawful Contact with a Minor (18 Pa.C.S. § 6318): intentionally contacting a minor for the purpose of engaging in activity otherwise prohibited as a sex crime.

Are there mandatory sentences applicable to sexually based offenses?

Yes, there are. Upon conviction, if the District Attorney files for a mandatory sentence, the sentencing court has no discretion but to impose it.

Crime Criteria Mandatory Sentence
Rape (18 Pa.C.S. § 3121) Accused under 60, Victim over 60 and not a Police Officer 5 years
Rape (18 Pa.C.S. § 3121) Victim under 16 10 years
Involuntary Deviate Sexual Intercourse (18 Pa.C.S. § 3123) Accused under 60, Victim over 60 and not a Police Officer 5 years
Involuntary Deviate Sexual Intercourse (18 Pa.C.S. § 3123) Victim under 16 10 years
Aggravated Indecent Assault (18 Pa.C.S. § 3125) Victim under 16 5 years
Aggravated Indecent Assault (18 Pa.C.S. § 3125) Victim under 13 10 years
Crime of Violence (includes rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, and sexual assault or attempt, conspiracy, or solicitation thereof) 2nd Conviction for Such Crime 10 years
Crime of Violence (includes rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, and sexual assault or attempt, conspiracy, or solicitation thereof) 3rd Conviction for Such Crime 25 year
Sexually Violent Offense 2nd Conviction for Such Crime 25 years
Sexually Violent Offense 3rd Conviction for Such Crime Life
Failure to Register, Verify Address or Provide Photograph (18 Pa.C.S. § 4915) Ten Year Requirement, 1st Offense 2 years
Failure to Register, Verify Address or Provide Photograph (18 Pa.C.S. § 4915) Ten Year Requirement, 2nd or Subsequent Offense 5 years
Failure to Register, Verify Address or Provide Photograph (18 Pa.C.S. § 4915) Lifetime Requirement, 1st Offense 3 years
Failure to Register, Verify Address or Provide Photograph (18 Pa.C.S. § 4915) Lifetime Requirement, 2nd or Subsequent Offense Not addressed
Failure to Provide Accurate Information When Registering or Verifying Address (18 Pa.C.S. § 4915) Ten Year Requirement, 1st Offense 3 years
Failure to Provide Accurate Information When Registering or Verifying Address (18 Pa.C.S. § 4915) Ten Year Requirement, 2nd or Subsequent Offense 7 years
Failure to Provide Accurate Information When Registering or Verifying Address (18 Pa.C.S. § 4915) Lifetime Requirement, 1st Offense 5 years
Failure to Provide Accurate Information When Registering or Verifying Address (18 Pa.C.S. § 4915) Lifetime Requirement, 2nd or Subsequent Offense 7 years

What is “sexting”?

“Sexting” coins the modern phenomena of sending sexually explicit images via electronic media – most commonly referring to minors engaging in such activities through cell phone texting. There has been great controversy addressing whether laws dealing with child pornography may attach to such conduct if the subject of the image is under the age of eighteen, regardless of the consensual nature of the act, another minor being the intended recipient, or even the possibility of the subject photographing and sending images of him/herself. In an effort to still penalize such conduct, but at a level severe level than child pornography laws would have, such conduct was recently made a misdemeanor of the second degree if the subject’s lack of consent or bullying were at issue, or a summary offense if the conduct was purely consensual. While no longer carrying the felony classification that child pornography laws do, “sexting” still carries criminal consequences that can be very far reaching.

What exactly are Megan’s Law and the Adam Walsh Act, or SORNA?

Megan’s Law in Pennsylvania consisted of a series of legislative measures designed to enable law enforcement agencies to identify and track certain categories of sex offenders, and provide a standardized mechanism for the members of the public to be notified of their criminal background and whereabouts in their communities. Collectively referred to as ‘Megan’s Law,’ these laws (Pennsylvania Consolidated Statutes, Title 42, Chapter 97, Subchapter H, cited at 42 Pa.C.S. § 9791 et seq.) were formed largely in response to high-profile crimes and the passing of similar federal laws which required states to follow suit.

A federal law called the Adam Walsh Act, otherwise known as the Sex Offender Registration and Notification Act (SORNA) was passed in 2006, and calls for states to adopt laws that substantially comply with the federal version. The law calls for a three-tiered categorization of sex offender registration requirements, based on the nature of the offense and whether the individual is a repeat offender. The goal of the law is to achieve greater uniformity regarding registration requirements across the states. Effective as of December 20, 2012, Pennsylvania substantially adopted the provisions of SORNA, thereby broadening and enhancing the registration requirements that had already existed in this state. Overall, the registration periods were lengthened and more offenses were included as registerable offenses. It is important to note that the new provisions apply to sex offenders who may have been convicted even prior to its passing. For further inquiry, please contact an attorney at our firm.

Which offenses are subject to sex offender registration requirements?

Tier I Sexual Offenses – Fifteen Year Registrants

Those convicted of the following offenses:

  • 18 Pa.C.S. § 2902(b) (relating to Unlawful Restraint).
  • 18 Pa.C.S. § 2903(b) (relating to False Imprisonment).
  • 18 Pa.C.S. § 2904 (relating to Interference with Custody of Children).
  • 18 Pa.C.S. § 2910 (relating to Luring a Child into a Motor Vehicle or Structure).
  • 18 Pa.C.S. § 3124.2(a) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3126(a)(1) (relating to Indecent Assault).
  • 18 Pa.C.S. § 6301(a)(1)(ii) (relating to Corruption of Minors).
  • 18 Pa.C.S. § 6312(d) (relating to Sexual Abuse of Children).
  • 18 Pa.C.S. § 7507.1. (relating to Invasion of Privacy).
  • 18 U.S.C. § 1801 (relating to Video Voyeurism).
  • 18 U.S.C. § 2252(a)(4) (relating to Certain Activities Relating to Material Involving the Sexual Exploitation of Minors).
  • 18 U.S.C. § 2252A (relating to Certain Activities Relating to Material Constituting or Containing Child Pornography).
  • 18 U.S.C. § 2252B (relating to Misleading Domain Names on the Internet).
  • 18 U.S.C. § 2252C (relating to Misleading Words or Digital Images on the Internet).
  • 18 U.S.C. § 2422(a) (relating to Coercion and Enticement).
  • 18 U.S.C. § 2423(b), and (c) (relating to Transportation of Minors).
  • 18 U.S.C. § 2424 (relating to Filing Factual Statement about Alien individual).
  • 18 U.S.C. § 2425 (relating to Use of Interstate Facilities to Transmit Information about a Minor).
  • A conviction or court martial of a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth.
  • A conviction of an attempt, conspiracy or solicitation to commit an offense enumerated under Tier I classification.
  • A conviction for a sexual offense in another jurisdiction or foreign country that is not set forth in this section, but nevertheless requires registration under a sexual offender statute in the jurisdiction or foreign country.

Tier II Sexual Offenses – Twenty-Five Year Registrants

Those convicted of the following offenses:

  • 18 Pa.C.S. § 3122.1(a)(2) (relating to Statutory Sexual Assault).
  • 18 Pa.C.S. § 3124.2(a.2) and (a.3) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3126(a)(2), (3), (4), (5), (6) or (8) (relating to Indecent Assault).
  • 18 Pa.C.S. § 5902(b.1) (relating to Prostitution and related Offenses).
  • 18 Pa.C.S. § 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to Obscene and other Sexual Materials and Performances).
  • 18 Pa.C.S. § 6312(b) and (c)(relating to the Sexual Abuse of Children).
  • 18 Pa.C.S. § 6318 (relating to Unlawful Contact with Minor).
  • 18 Pa.C.S. § 6320 (relating to Sexual Exploitation of Children).
  • 18 U.S.C. § 1591 (relating to Sex Trafficking of Children by Force, Fraud, or Coercion).
  • 18 U.S.C. § 2243 (relating to Sexual Abuse of a Minor or Ward).
  • 18 U.S.C. § 2244 (relating to Abusive Sexual Contact) where the victim is 13 years of age or older but under 18 years of age.
  • 18 U.S.C. § 2251 (relating to Sexual Exploitation of Children).
  • 18 U.S.C. § 2251A (relating to Selling or Buying of Children).
  • 18 U.S.C. § 2252(a)(1), (2) or (3) (relating to Certain Activities Relating to Material Involving the Sexual Exploitation of Minors).
  • 18 U.S.C. § 2260 (relating to Production of Sexually Explicit Depictions of a Minor for Importation into the United States).
  • 18 U.S.C. § 2421 (relating to Transportation Generally).
  • 18 U.S.C. § 2422(b) (relating to Coercion and Enticement).
  • 18 U.S.C. § 2423(a) (relating to Transportation of Minors).
  • A conviction or court martial of a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth.
  • A conviction of an attempt, conspiracy or solicitation to commit an offense enumerated under Tier II classification.

Tier III Sexual Offenses – Lifetime Registrants

Those convicted of the following offenses:

  • 18 Pa.C.S. § 2901(a.1) (relating to Kidnapping).
  • 18 Pa.C.S. § 3121 (relating to Rape).
  • 18 Pa.C.S. § 3122.1(b) (relating to Statutory Sexual Assault).
  • 18 Pa.C.S. § 3123 (relating to Involuntary Deviate Sexual Intercourse).
  • 18 Pa.C.S. § 3124.1 (relating to Sexual Assault).
  • 18 Pa.C.S. § 3124.2(a.1) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3125 (relating to Aggravated Indecent Assault).
  • 18 Pa.C.S. § 3126(a)(7) (relating to Indecent Assault).
  • 18 Pa.C.S. § 4302(b) (relating to Incest).
  • 18 U.S.C. § 2241 (relating to Aggravated Sexual Abuse).
  • 18 U.S.C. § 2242 (relating to Sexual Abuse).
  • 18 U.S.C. § 2244 where the victim is under 13 years of age (relating to Abusive Sexual Contact).
  • A conviction or court martial of a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth.
  • A conviction of an attempt, conspiracy or solicitation to commit an offense enumerated under Tier III classification.
  • Two or more convictions of an offense(s) enumerated under Tier I or Tier II classification.

What does SORNA require these individuals to do?

They must register with the Pennsylvania State Police upon release from incarceration, upon parole from a state or county correctional facility or upon the commencement of a sentence of intermediate punishment or probation. They must notify the Pennsylvania State Police within 48 hours of any change of status relating to residence, employment, or schooling. Likewise, they must notify the appropriate law enforcement agency in another state within 48 hours of establishing a residence in that state. They must also verify their updated registration information with the State Police and be photographed on a regular basis, depending on their classification. Tier I offenders are required to report every year. Tier II offenders are required to report every six months. Tier III offenders, Juvenile offenders, Sexually Violent Predators, and Sexually Violent Delinquent Children are required to report every three months. Transient offenders are required to report every month.

Selected pieces of information pertaining to such individuals are available for public viewing on Pennsylvania’s Megan’s Law website (http://www.pameganslaw.state.pa.us). Such information includes: names/aliases, year of birth, residence address, school address, employment city/county/zip code, annually updated photograph, physical description, identifying marks, license plate, vehicle description, registration compliance status, description of triggering offense, the status of the victim as a minor, and the date of conviction.

What does it mean to be designated as a Sexually Violent Predator (SVP)?

Anyone convicted of a SORNA offense must undergo an assessment by the Sexual Offenders Assessment Board. Such an assessment considers a number of factors such as the facts of the triggering offense, the individual’s criminal history, and the individual’s personal characteristics. Depending on the outcome of the assessment, the District Attorney may pursue such a classification by requesting a hearing, where it must be proven to a judge by clear and convincing evidence that due to a mental abnormality or personality disorder, the individual is likely to engage in predatory sexually violent offenses.

Besides having to register for life, individuals designated an SVP, are subject to community and victim notification requirements. In such cases, the police are required to provide the individual’s name, address, photograph, offense information, and SVP designation to victims of the individual and to neighbors and school officials near the individual’s residence.

What happens if an individual does not comply with SORNA requirements?

Failure to comply can be the basis for a separate offense, with various gradations of felonies, depending on the registration category an individual is in and on whether the individual has been previously convicted of such an offense.