Have You Been Charged With Sexual Abuse Or Sexual Misconduct In Kentucky?

KENTUCKY LAW ON SEXUAL ABUSE AND MISCONDUCT AND DEGREES OF SEXUAL ABUSE AND MISCONDUCT

Sexual abuse in Kentucky is defined in the Kentucky Revised Statutes Sections 510.110, 510,120, and 510.130. 

Sexual abuse in the first degree occurs when the accused subjects another person to sexual contact by forcible compulsion; or when person subjected to sexual contact by the accused is incapable of consent because he or she is physically helpless, less than 12 years old, mentally incapacitated, or is an individual with an intellectual disability. It is additionally sexual abuse in the first degree when the accused and the victim fall into certain age group categories or there is a relationship of special trust between the accused and the victim. 

Sexual abuse in the second degree occurs when the accused is 18 years old or older but less than 21 years old and engages in sexual contact with another person who is less than 16 years old. It also occurs when there is a special relationship of authority between the accused and the person with whom the accused engaged in sexual contact. 

The first of this prohibited category is sexual contact occurring within the context of a relationship of authority between a person working for a detention facility and another person who is 18 years old or older and who the accused knows or should know is under the authority of that facility. 

The second prohibited category is sexual contact occurring within the context of a relationship of authority between a person who is a peace officer serving in his or her official capacity and a person under his or her authority. 

Sexual abuse in the third degree occurs when the accused subjects another person to sexual contact without the other persons consent. 

Sexual misconduct is defined in KRS §510.140. This specific statute is somewhat of a catchall statute, the purpose of which is to provide a charge for sexual offenses not specifically covered by other sections of KRS Ch. 510. Cooper v. Com., 550 S.W.2d 478 (Ky. 1977). Sexual misconduct occurs when a person engages in sexual intercourse or deviate sexual intercourse with another person without the latter’s consent. 

Whether a defendant may be convicted of a lesser included offense of the offense charged depends in part on the evidence given at trial. Each degree of sexual abuse may be a lesser included offense of the degree or degrees that are higher than it, e.g., sexual abuse in the third degree may be a lesser included offense of both sexual abuse in the first and second degrees. Sexual misconduct may also be a lesser included offense to any degree of sexual abuse. 

ELEMENTS OF SEXUAL ABUSE OR MISCONDUCT – WHAT MUST BE PROVEN TO BE CONVICTED

Sexual abuse has a number of elements that must be proven by the Commonwealth or the County in order to for there to be a conviction. First, the offensive contact must have occurred. Second, the defendant’s voluntary action must have caused the offensive contact (this is the intent element). The offensive contact is sexual contact, which must be conducted with the intention of gaining sexual arousal or gratification, or for a sexual purpose or in a sexual manner. Third, there must have been either actual lack of consent (as in the case of forcible compulsion) or statutory lack of consent due to either the specified age restrictions or to the relationship of trust or authority over the other person. 

DEFINITIONS

The terms forcible compulsion, mental illness, individual with intellectual disability, physically helpless, sexual contact, and sexual intercourse are defined in KRS §510.010.

• Forcible compulsion means physical force of threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense in KRS Chapter 510. 
• Mental illness means diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the DSM Third and any subsequent revision thereto, of the American Psychiatric Association. 
• Individual with an intellectual disability means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B. 
• Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon or her without his or her consent. 
• Physically helpless means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act; this includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug. 
• Sexual contact means the touching of a person’s intimate parts or the touching of the clothing or other material intended to cover the immediate area of a person’s intimate parts, if that touching can be construed by a reasonable person as being don for the purpose of sexual arousal or gratification of either party; for a sexual purpose; or in a sexual manner for the purpose of exacting revenge or retribution, humiliating or degrading, or punishment. 

PENALTY FOR SEXUAL ABUSE IN KENTUCKY 

Sexual abuse in the first degree is a Class D felony, in which case the penalty is one to five years’ incarceration, unless the victim is less than 12 years old, in which case it is a Class C felony, and the penalty is five to ten years’ incarceration. 

Sexual abuse in the second degree is a Class A misdemeanor, and therefore is punishable by up to 12 months incarceration and a fine of $500. 

Sexual abuse in the third degree is a Class B misdemeanor and therefore is punishable by up to 90 days in incarceration and a fine of $250. 

Sexual misconduct is a Class A misdemeanor for which the penalty is up to 12 months’ incarceration and a fine of $500.  

SEXUAL ABUSE OR MISCONDUCT AS SEEN THROUGH CASE LAW 

Caselaw is used by the prosecutors, defense attorneys, and the courts to help clarify different meanings within statutes and to determine what level of proof or evidence is necessary for a conviction. Cases might also define the purpose for enacting a certain statute. For example, a very old case states that the sexual abuse statute’s purpose is to create an offense that is less than rape so that offenses that do not include an intent to rape or for which intent might be hard to prove can be prosecuted. Howell v. Commonwealth, 5 Ky. L. Rptr. 174 (Ky. 1993). In part due to this stated purpose, it is not necessary to give evidence that indicates that the accused attempted to have sexual intercourse. Rayburn v. Com., 476 S.W.2d 654 (Ky. 1954). 

Where the intent element is concerned, caselaw shows us that where the victim is a child, it is not necessary to give evidence going to intent or reasons for the conduct. Hatfield v. Commonwealth, 473 S.W.2d 104 (Ky. 1971). A person is presumed to be incapable of committing a crime between the ages of seven and fourteen, but this may be presumption pay be overcome with evidence to the contrary within the context of sexual abuse. Thomas v. Com., 189 S.W.2d 822 (Ky. 1941). On the other hand, evidence may be used to show intent despite the accused’s being drunk. Moore v. Commonwealth, 156 S.W.2d 742 (Ky. 2019). 

Terms within the statute, such as sexual contact, physical helplessness,  and forcible compulsion, might also be defined by caselaw. For example, there is sexual contact where the defendant thrusts against the victim and put his hand on her stomach. Rudd v. Commonwealth, 584 S.W.3d 742 (Ky. 2019). Regardless of the sexual nature of the area touched, it is still necessary that the touching be intentional instead of simply inadvertent. Boone v. Com., 155 S.W.3d 727 (Ky.App. 2004). And sexual contact is not limited to a sex organ, so long as the touching is done for sexual gratification of the perpetrator. Bills v. Com., 851 S.W.2d 466 (Ky. 1993). Thus, whether sexual contact has occurred will typically depend on three factors: the part of the body that was touched, the manner of the touching, and the circumstances under which the touching occurred. Ibid. 

Physical helplessness is determined based on the victim’s condition. A person is physically helpless and therefore cannot give consent if that person is sleeping. Boone v. Commonwealth, 155 S.W.3d 727 (Ky.App. 2004). If it is alleged that the victim could not give consent due to mental defect, then the question is whether the victim is capable of understanding the nature of the sexual act performed. Salsman v. Com., 565 S.W.2d 638 (Ky.App. 1978). 

When it is alleged that the victim was forcibly compelled, whether the victim felt fear and complied because of it may be determined subjectively from the victim’s point of view. Murphy v. Commonwealth, 509 S.W.3d  34 (Ky. 2017). Factors in drawing this conclusion include whether there was constant emotion, verbal and physical duress, whether the victim lived in continued fear of what the defendant might do, and whether the victim went along with the abuse out of fear. Yarnell v. Com., 833 S.W.2d 834 (Ky. 1992). Forcible compulsion may also be determined through inference based on the defendant’s actions. Some examples include when the defendant placed the minor victim’s hands on his pants in a sexual way, where the abuse took place through a show of force or threats, or where the victim was detained. Gibbs v. Com., 208 S.W.3d 848 (Ky. 2006); Woodward v. Commonwealth, 63 S.W.2d 477 (Ky. 1933); Stark v. Commonwealth, 184 S.W. 875 (Ky. 1916).  

DEFENSES TO SEXUAL ABUSE OR MISCONDUCT

It is a defense to sexual abuse in the second degree, forcible compulsion, that the alleged victim’s lack of consent was due solely to the fact that he or she was less than 16 years old, that he or she was at least 14 years old, and that the accused was less than 5 years older than the alleged victim. 

It is a defense to sexual abuse in the third degree that the other person’s lack of consent wad due solely to incapacity of consent because that person was less than 16 years old while being at least 14 years old, and the accused was less than 18 years old. 

Otherwise, the usual defenses may be available to the accused. These include consent, where consent is available. They also include insufficiency of evidence, tainted evidence, or looking into the motivations for a false accusation.  

It is not a defense if the accused is mistaken as to the age of the victim. Therefore, it also does not matter if the victim lied about his or her age to the accused. If there is a position of trust or authority, it is not a defense that the accused did not know of the other person’s status if the accused should have known.