Defining Violation: Sex Crime Categories In Pennsylvania

Philadelphia Sexual Abuse Lawyer Guy D'Andrea
Guy D'Andrea, Esq. - PA Abuse Guardian

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Pennsylvania’s law on sex crimes is fairly complex, defining numerous crimes that are different both in their circumstances and the severity of punishment exacted on convicted offenders. In this guide, we’ll break down these gradations of sexual crime in detail.

Misdemeanors & Felonies: Crime Is A Matter Of Degree

Like every criminal code, Pennsylvania first separates sexual offenses into two broad categories: misdemeanors and felonies. Misdemeanors are considered “lesser” crimes than felonies, and offenders generally face less stringent penalties for committing them.

Felonies, on the other hand, are more serious. Crimes are also broken down by “degree.” There are first-degree, second-degree and third-degree misdemeanors and felonies, with third-degree misdemeanors being considered the least serious crimes and first-degree felonies being the most serious crimes.

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Public Indecency

“Open lewdness,” for example, is a third-degree misdemeanor in Pennsylvania. One of several crimes defined under the heading “Public Indecency,” open lewdness refers to any act involving erotic or sexual behavior that the offender “knows is likely to be observed by others who would be affronted or alarmed.”

Pennsylvania’s public indecency law also covers “indecent exposure,” in a which a person exposes their genitals in public, commonly known as “flashing. That’s usually a second-degree misdemeanor, unless the offender expose themselves in front of someone under 16, in which case the degree of the offense is increased to a first-degree misdemeanor. As a first-degree misdemeanor, indecent exposure carries a penalty of up to 5 years in prison and fines set at the judge’s discretion. Offenders convicted of second-degree indecent exposure face punishments including a 2 year prison sentence and discretionary fines.

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How Does Pennsylvania Define Rape?

In Pennsylvania, rape is a first-degree felony. Other states have different names for this offense, including “sexual battery” and “sexual assault,” but in Pennsylvania’s legal code, under Chapter 31: “Sexual Offenses,” the crime is called “Rape.”

Intercourse requires penetration, according to Pennsylvania law, but even minimal amounts of penetration are sufficient to constitute the crime:

“In addition to its ordinary meaning, [sexual intercourse] includes intercourse per os or per anus, with some penetration however slight; emission is not required.” [emphasis added].

We’ll discuss the meaning of “per os or per anus” a little later. For now, note that a sex act need not be “consummated” in any sense, including with ejaculation, to be classified as “sexual intercourse.” Thus rape is defined as any sexual intercourse (as described above) committed:

  • through forcible compulsion,
  • through the “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution”,
  • while the victim is unconscious,
  • when the offender knows that the victim is unaware that the sex act is occurring,
  • when the offender has “substantially impaired” the victim’s ability to assess or control their own actions by giving them a drug or other intoxicant without their knowledge, or
  • when the victim “suffers from a mental disability” that renders them incapable of consent.

Criminal Penalties For Rape

Jail terms and fines for offenders convicted of rape depend on the circumstances of the crime.

When the victim is an adult, an offender can be imprisoned for up to 20 years and fined for up to $25,000. Penalties for “date rape” are even more severe, including 10 more years of imprisonment and an additional fine of up to $100,000.

When the victim is younger than 13, offenders can be imprisoned for up to 40 years. When the rape of a “child” (defined as any minor under 13) causes serious bodily injury, offenders can receive life sentences in jail.

To learn more, see our article for A Brief Recap of North Philly, PA History

What Is “Deviate Sexual Intercourse”?

Many of these laws don’t involve vaginal penetration, what most of us consider “sex” proper. Sometimes these other sex acts, like cunnilingus, fellatio or anal penetration are referred to as “deviate” acts.

In Pennsylvania’s law books, “deviate sexual intercourse” is defined by the Latin phrases “per os” and “per anus,” which mean “with the mouth” or “with the anus” respectively. The laws apply equally to acts involving either parties’ body parts. In other words, forcing someone to insert their penis into one’s own mouth is just as illegal as forcing one’s own penis into their mouth. Other states call these acts “indecent assault,” a term Pennsylvania uses in some circumstances.

“Deviate sexual intercourse” also includes any form of sexual intercourse involving non-human animals.

What Is Pennsylvania’s Age Of Consent?

In Pennsylvania, the age of consent is 16. Legally, no one under the age of 16 can consent to sexual conduct, whether or not the sex act in question was consensual. Under a “Romeo and Juliet” exception, the state provides some lee-way when a defendant and victim are within 4 years of one another.

Regardless, this basic definition of “statutory rape” (so-called because it’s automatically considered rape under the state’s statutes) structures several criminal charges in the state:

  • Aggravated indecent assault, a second-degree felony, covers any genital or anal penetration with a body part when the victim is younger than 13. The defendant’s age doesn’t matter. This law is also extended to cover victims between 13 and 15, when the defendant is 4 or more years older.

Penalties: up to 10 years in prison, up to $25,000 fine or both.

  • Involuntary deviate sexual intercourse, a first-degree felony, includes oral or anal sexual contact, including cunnilingus or fellatio. When the victim is under 13, the law covers defendants of any age. For minor victims between 13 and 15, the law applies to defendants at least 4 years older than the victim.

Penalties: up to 20 years in prison, up to $25,000 fine or both.

  • Indecent assault can either be a first or second-degree misdemeanor, depending on the victim’s age. The crime covers all intimate touching with the intent of arousing or satisfying sexual desire.

When the victim is under 13, offenders can be charged with a first-degree misdemeanor that carries penalties of up to $5,000 (no less than $1,500), jail time up to 5 years or both. When the victim is 13 or older, the crime becomes a second-degree misdemeanor, with penalties of up to 2 years in prison, a fine of up to $5,000 (no less than $500) or both.

  • Rape, a first-degree felony, covers any sexual intercourse with a minor under 13. Genital and anal penetration, however brief, are included in the definition of “sexual intercourse.”

Penalties: up to 20 years in prison, up to $25,000 fine or both.

  • Statutory sexual assault, a second-degree felony, covers sexual intercourse with children between the ages of 13 and 15, when the defendant is at least 4 years older than their victim.

Penalties: up to 10 years in prison, up to $25,000 fine or both.

In their own defense, sex offenders often say they “mistook” their victims for older, or even that the victim lied about their age. That may or may not be a legitimate defense in Pennsylvania, but only in strictly-defined situations. When a victim is below 14, offenders have no excuse, legal or otherwise. But if a victim is below the age of consent, but over 14, offenders may be able to argue that they reasonably believed the victim was older.

Marriage: An Exception To Statutory Rape Laws

The state does, however, have an exemption for married couples.

Pennsylvania’s marriage laws say 16 is the youngest age at which people can get married, and that’s only with parental consent. But in rare cases, judges can grant marriage licenses to minors younger than 16, if they believe marriage is in the best interests of the juvenile.

In that case, the state’s marriage exemption allows for consensual sex between the minor couple, even if they’re separated in age by more than 4 years. That’s true, though, only if the couple was married in Pennsylvania, and resides there.

Pennsylvania’s Romeo & Juliet Law

In most cases, Pennsylvania prohibits any sexual conduct between adults (people over the age of 18) and minors (people below the age of 16), even when the sex is consensual. There is, however, a “Romeo and Juliet” exception designed to prevent teenagers from being hit by serious criminal charges when they engage in consensual sexual conduct.

Under this exception, prosecutors are prohibited from pursuing criminal convictions when a minor who is 13 or older engages in sexual conduct with a defendant who is less than four years older. Thus, consensual sexual conduct between a 14-year-old and a 16-year-old would be allowed, as would consensual sex between a 15-year-old and an 18-year-old. In both cases, the defendant is fewer than four years older than the other sexual partner, who is older than 13.

Institutional Sexual Assault

Pennsylvania also prohibits most sexual contact between employees of state facilities and the residents under their charge. This law covers employees and “agents” of:

  • the Department of Corrections
  • county correctional authorities
  • youth development centers
  • youth forestry camps
  • State and county juvenile detention centers
  • licensed residential facilities serving children and youth
  • mental health facilities
  • facilities for the mentally disabled
  • schools

If the employ engages in sexual intercourse with an “inmate, detainee, patient[,] resident”, or student at their facility, consensual or not, they’ve committed (at the least) a third-degree felony.

In addition to criminal penalties, sex offenders also open themselves to civil liability in committing their crimes. That means survivors of rape, molestation or any other non-consensual sex act have every right to file their own lawsuit in state court.

PA sex assault lawsuits are distinct from criminal prosecutions, although some civil cases “tag-along” behind the work of prosecutors, since a conviction can have a major effect (usually good for survivors) on a civil lawsuit.

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