criminal-law virginia sexual-assault
Is it legal to grope an unconscious person in Virginia?
<p>A friend of mine was groped by a man she knows while she was asleep. She didn't wake up because of her medication which makes her sleep pretty heavily. The man has fully admitted to doing this, so there is no debate as to what happened.</p>

<p>The investigator has said that according to Virginia law, what he did was wrong but not illegal. Since "he didn't use force, threats, or intimidation, it's legal. So in VA, you can do many things to someone who is asleep provided that if they wake up and tell you to stop, you stop." (quote from friend paraphrasing investigator).</p>

<p>I find it extremely hard to believe that you can sexually assault a person so long as they remain unconscious don't resist you. Is this really how the law in Virginia works? What are the limits of what you are legally permitted to do to an unconscious person?</p>

<h1>Short Answer</h1>
<p>No. This is not legal under Virginia law. It is a serious crime.</p>
<h1>Long Answer</h1>
<h3>The basic reasoning</h3>
<p>This would be actionable as aggravated sexual battery and punishable by up to 20 years in prison, because the facts demonstrate a touching of intimate parts with an intent to molest (i.e. sexual abuse) and this is accomplished through the victim's physical helplessness, which includes being unconscious at the time for any reason.</p>
<h3>Intent to Molest, Gratify or Arouse</h3>
<p>Contrary to user6726, I don't think that groping in the factual context of the question can be reasonably interpreted as lacking an intent to molest under the statute. An interpretation that requires an effect on the victim would be contrary to the fact that the statute is talking about the intent of the perpetrator and to the fact that the statute expressly authorizes prosecutions in cases where the victim is physically helpless a definition that includes unconscious or drugged. One could probably get the court to provide an extra non-standard jury instruction if this was raised by the defense at trial as an issue.</p>
<p>The intent to molest, gratify or arouse intent requirement is designed to distinguish between, for example, giving a sponge bath to an unconscious patient at a medical facility or by a family member, or touching someone's breasts in order to get a bra size for a tailor, and &quot;groping.&quot; The intent requirement also excludes unintentional conduct such as slipping and falling into someone by accident. The admission by the perpetrator in the question doesn't suggest any possible non-sexual reason for the contact, and is inconsistent with unintentional conduct.</p>
<h3>Corroboration From Actual Recent Prosecutions</h3>
<p>This reading is consistent with the fact that Virginia prosecutors have brought charges in similar circumstances such as <a href="http://www.eveningsun.com/story/news/2017/03/22/two-men-charged-rape-unconscious-woman-house-party/99453734/?cookies=&amp;from=global" rel="noreferrer">the rape of an unconscious woman at a house party</a> and <a href="http://www.nbcwashington.com/news/local/Man-Accused-of-Assaulting-Unconscious-Women-215867991.html" rel="noreferrer">charges against a Virginia DJ for his conduct towards unconscious women</a>. The only material difference between rape and aggravated sexual battery under Virginia law is that rape requires penetration, while sexual battery merely requires sexual contact.</p>
<h3>Additional Commentary</h3>
<p>Reaching this conclusion is a bit tricky, because usually aggravated sexual battery would have a narrower definition of the crime than &quot;plain vanilla&quot; sexual battery.</p>
<p>But, in Virginia, there is conduct that constitutes aggravated sexual battery which does not constitute &quot;plain vanilla&quot; sexual battery, including molestation by accomplished through physical helplessness which is defined broadly in the relevant statute.</p>
<p>In other words, in this fact pattern, &quot;sexual battery&quot; is not a lesser included offense of &quot;aggravated sexual battery&quot; under subsection A(2) of § 18.2-67.3 of Virginia's statutes. Plain vanilla sexual battery includes the circumstances of subsection A(4) of § 18.2-67.3 of Virginia's statutes and some special &quot;statutory rape&quot;/&quot;position of trust&quot; type conduct that is outside of the scope of both A(4) type conduct and aggravated sexual battery generally.</p>
<p>I would attribute the statements of the investigator as symptom of poor training about sexual assault cases and a generally regressive state of law enforcement attitudes about sexual assault in Virginia. Your friend should insist on talking to the investigator's supervisor and reviewing the relevant legal citations, with a lawyer, if necessary, if she wants to press charges.</p>
<p>Of course, the prosecutor has no obligation to prosecute the case even if the prosecutor had a videotaped confession to every element of the crime. But, there is no reason for a prosecution to be prevented due to a non-lawyer investigator's misunderstanding of the law. A letter of complaint to the investigator's supervisor or the head of the department or the politician to whom the department reports would also be in order.</p>
<h1>The Statutes</h1>
<p>The statute creating the crime is as follows, with all of the pertinent language in bold. I have put the word &quot;or&quot; when necessary to see how the statute fits together (which could be omitted in a block quotation showing omissions with &quot;. . .&quot;) in italics and have left the remainder of the relevant statutes in plain text to allow a reader to confirm that the reading I am giving to the statute is correct.</p>
<blockquote>
<p>§ 18.2-67.3. Aggravated sexual battery; penalty.</p>
<p>A. <strong>An accused shall be guilty of aggravated sexual battery if he or
she sexually abuses the complaining witness, and</strong></p>
<ol>
<li><p>The complaining witness is less than 13 years of age, <em>or</em></p>
</li>
<li><p><strong>The act is accomplished through the use of the complaining witness's</strong> mental incapacity <em>or</em> <strong>physical helplessness</strong>, <em>or</em></p>
</li>
<li><p>The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less
than 18 years of age, <em>or</em></p>
</li>
<li><p>The act is accomplished against the will of the complaining witness by force, threat or intimidation, and</p>
</li>
</ol>
<p>a. The complaining witness is at least 13 but less than 15 years of
age, or</p>
<p>b. The accused causes serious bodily or mental injury to the
complaining witness, or</p>
<p>c. The accused uses or threatens to use a dangerous weapon.</p>
<p>B. <strong>Aggravated sexual battery is a felony punishable by confinement in
a state correctional facility for a term of not less than one nor more
than 20 years and by a fine of not more than $100,000.</strong></p>
</blockquote>
<p>This in interpreted in light of some key definitions:</p>
<blockquote>
<p>§ 18.2-67.10. General definitions.</p>
<p>As used in this article:</p>
<ol>
<li><p><strong>&quot;Complaining witness&quot; means the person alleged to have been subjected to</strong> rape, forcible sodomy, inanimate or animate object
sexual penetration, marital sexual assault, <strong>aggravated sexual
battery,</strong> or sexual battery.</p>
</li>
<li><p><strong>&quot;Intimate parts&quot; means the genitalia, anus, groin, breast, or buttocks of any person.</strong></p>
</li>
<li><p>&quot;Mental incapacity&quot; means that condition of the complaining witness existing at the time of an offense under this article which prevents
the complaining witness from understanding the nature or consequences
of the sexual act involved in such offense and about which the accused
knew or should have known.</p>
</li>
<li><p><strong>&quot;Physical helplessness&quot; means unconsciousness or any other condition existing at the time of an offense under this article which
otherwise rendered the complaining witness physically unable to
communicate an unwillingness to act and about which the accused knew
or should have known.</strong></p>
</li>
<li><p>The complaining witness's &quot;prior sexual conduct&quot; means any sexual conduct on the part of the complaining witness which took place before
the conclusion of the trial, excluding the conduct involved in the
offense alleged under this article.</p>
</li>
<li><p><strong>&quot;Sexual abuse&quot; means an act committed with the intent to sexually molest, arouse, or gratify any person, where:</strong></p>
</li>
</ol>
<p>a. <strong>The accused intentionally touches the complaining witness's
intimate parts or material directly covering such intimate parts;</strong></p>
<p>b. The accused forces the complaining witness to touch the
accused's, the witness's own, or another person's intimate parts or
material directly covering such intimate parts;</p>
<p>c. If the complaining witness is under the age of 13, the accused
causes or assists the complaining witness to touch the accused's, the
witness's own, or another person's intimate parts or material directly
covering such intimate parts; <em>or</em></p>
<p>d. The accused forces another person to touch the complaining
witness's intimate parts or material directly covering such intimate
parts.</p>
</blockquote>
<p>Also relevant is this statute:</p>
<blockquote>
<p>§ 18.2-67.6. Proof of physical resistance not required.</p>
<p><strong>The Commonwealth need not demonstrate that the complaining witness
cried out or physically resisted the accused in order to convict the
accused of an offense under this article, but the absence of such
resistance may be considered when relevant to show that the act
alleged was not against the will of the complaining witness.</strong></p>
</blockquote>
