Under Virginia law, there are several different ways to charge a person accused of sexually assaulting a minor. For example, a person commits the crime of rape under Code Section 18.2-61 if they have sexual intercourse with a minor who is under 13 years old. A person commits forcible sodomy against a minor under Section 18.2-67.1 if they engage in conduct with a minor under 13 years old that includes cunnilingus, fellatio, anilingus, or anal intercourse. Object sexual penetration under Section 18.2-67.2 occurs when a defendant penetrates a person’s vagina or anus with an object.
If the defendant is over 18 years old and the victim is under 13 years old, the mandatory minimum sentence is life in prison. Consent is not a defense against any of these charges if the victim is a minor, and it is usually not a defense that the defendant did not know the victim’s age.
There are other charges for sexual assault against a minor that do not carry harsh mandatory minimum sentences. Under Code Section 18.2-63, for example, a conviction for “carnal knowledge” with a minor between 13 and 15 years old is a class 4 felony punishable by up to 10 years in prison, with no mandatory minimum. Having “carnal knowledge” of a minor includes having vaginal, anal, or oral sex with a minor or object penetration.
Aggravated sexual battery involving a minor under Section 18.2-67.3 applies to sexual conduct with a minor under the age of 13, but which involves touching as opposed to the more serious acts described above. It carries a maximum penalty of 20 years but has no mandatory minimum sentence. Under Section 18.2-67.4:2, it is a misdemeanor for an adult to commit an act of sexual abuse against a minor between the ages of 13 and 15 years old.
A conviction for any of these offenses usually comes with a requirement that the defendant register as a sex offender. Moreover, a conviction for these offenses generally cannot be expunged under Section 19.2-392.2.
There are many ways to defend yourself if you are charged with sexual assault of a minor under one of these laws. For example, most of these cases involve a “forensic interview” of the alleged victim, where the alleged victim is asked to describe what happened to them. There are strict protocols for how these interviews should be conducted, since interviewers do not want to influence the alleged victim’s narrative. A smart defense attorney will have an expert review that forensic interview to see if the alleged victim was “coached” regarding the allegations or if the forensic interviewer’s tactics influenced the child’s story.
In other cases, the case comes down to a “credibility contest,” where the evidence is mostly based on the alleged victim’s testimony. In these cases, it is extremely important to conduct a counter-investigation to uncover any motives for the alleged victim to lie or fabricate her testimony. In some cases, the defendant may avoid prosecution if they show they have autism or another intellectual disorder under Section 19.2-303.6.
Even in cases where the evidence of guilt is strong, there are several “lesser charges” that a lawyer can negotiate as part of a deal in order for the defendant to avoid the harshest mandatory minimum sentences. In these cases, mitigating evidence like polysexual evaluations, polygraphs, and background information can be very important.
