What is Legally Considered Abuse?

Many victims of sexual abuse worry that what happened to them might not legally qualify as “sexual abuse.”  This can lead to victims not reporting what happened and going years before ever understanding that what happened to them does qualify as sexual abuse.  Waiting could mean losing out on the right to sue your abuser or even missing the statute of limitations for potential criminal charges.  As such, it is important to understand what is legally considered “sexual abuse.”

The law of each state might vary as to what is and is not considered sexual abuse.  The law might also change depending on whether you are looking at the criminal law or civil law definition of sexual abuse.  In any case, most states will accept that unwanted touching of private areas constitutes molestation or abuse in some way.  Further, any unwanted sex might qualify, even if consent was a hazy issue.

If you think you might be the victim of sexual abuse, call The Law Office of Andrew Shubin’s sexual abuse victim lawyers at (814) 826-3586 for compassionate, confidential help.

What is the Legal Definition of Sexual Abuse?

As mentioned, the law varies from state to state.  This means that what your state considers “sexual abuse” might be a bit different than what another state considers “sexual abuse.”  There may also be specific carve-outs or exceptions where the actions in question are included or excluded from the definition.  Further, criminal and civil law are sometimes different, and it can be hard to find the answers you are looking for because the definition is not clear as to whether it comes from criminal or civil law.

Civil vs. Criminal Law Definitions of Sexual Abuse

Our sexual abuse victim lawyers understand that you are likely not a lawyer and might not understand whether a statute or definition you found applies to criminal cases or civil cases.

When it comes to criminal laws, states often write down their different laws and assign a name and code section to every offense.  The crime of “sexual abuse” might refer to ongoing situations or multiple instances of assault or some other offense.  However, the common definition of “sexual abuse” might be broader, encompassing what your state’s criminal laws might call molestation, sexual contact, sexual assault, sexual battery, or rape.  Some states, like Pennsylvania, even use complex phrases like “deviate sexual intercourse.”

Many crimes overlap with civil wrongs as well.  In civil court, you sue the victim for what they did so you get damages paid rather than merely locking them up.  Most states do not write down their civil definitions of various acts – known as “torts” – and instead rely on the “common law” definitions or use judicial decisions and precedents to come up with what is and is not abuse.  Other states will reference their criminal code when looking into specific definitions of various torts.

If you want to sue for what happened to you, it needs to meet the civil definition of sexual abuse.  If you want to press charges, it needs to meet the definition of some crime, regardless of the crime’s specific name.  Keep this in mind as you begin to understand what happened to you and whether it constitutes “sexual abuse” by some legal definition.

Definition for Civil Lawsuits

As mentioned, the civil definition of any particular issue is not necessarily written down in your state’s code somewhere.  Instead, there are common definitions that we arrived at through years of judicial rulings dating back to old English law before the U.S. was even formed.  Many of these definitions have changed over time, but nonetheless still form the basis of most civil lawsuits.

Regardless of the pattern of abuse and whether it was one instance or many, our sexual abuse victim lawyers will typically file sexual abuse cases as claims for assault and battery or a similar tort.  Battery consists of unwanted touching that results in physical harm or offense, while assault is putting someone in fear that they are going to be touched in such a way.  The common example here is that someone drawing back their fist to punch you is assault and someone actually punching you is battery.

Some states might use different names or have more specific claims for sexual battery or sexual assault specifically.  Here, the elements might change a bit to include what type of touching occurred, considering mere touching to be one tort and sexual penetration to be another.  There might also be different technical definitions that separate assault with an object, oral/anal penetration, assault while the victim is drugged, and assault of a minor into different offenses or torts.

All in all, any unwanted sexual touching will usually constitute some kind of legal wrong, whether it is called “sexual abuse” or something else.

Does Sexual Abuse Require Force to Be Illegal?

Some states include the requirement that sexual assault or sexual abuse happened “by force.”  These definitions are often considered outdated, and most states have changed their laws or are in the process of changing laws to remove force as an element of the lowest-level version of sexual assault.  Instead, many states will consider assault or abuse involving force or drugs to be a worse criminal offense or tort and abuse that involves no force to be a separate tort or crime.  For example, New York’s statutes consider rape involving force a higher “degree” of rape than rape without force.

In some states, the law only makes it a crime or a tort if there was enough force used to overcome resistance.  Under these terribly outdated laws, the victim is essentially considered to have legally consented unless they fought back.  Most states’ current laws are more in line with modern notions of consent.

In general, if you were touched in an unwanted, sexual way, it should constitute some kind of sexual abuse or sexual assault that you can get justice for, even if there was no force involved.  You can leave it to our attorneys to look at the specific facts of your case and determine what specific name to use for the claim.

Does Sexual Abuse Require Penetration?

Many sexual abuse victims are worried about whether what happened to them involved actual penetration or not and whether it might “ruin their case” if they cannot remember or could not tell.  Our attorneys understand that these facts and situations are incredibly traumatic and that the last thing that you want to do is think carefully about what happened and identify the specific conduct.  Whether or not there was penetration in your case, you might still be able to file a claim for sexual abuse.

Some states use different names for different crimes and torts based on whether or not there was penetration.  For example, Alabama calls it “rape” when the assault involves vaginal sex and “sodomy” for other offenses, but they are both classified as the same level of crime.  Some states have a third offense for the use of an object.

Other times, states separate the offenses of sexual touching and sexual penetration.

In any case, all of these rise to the level of a crime or tort of some kind that you can file a claim for.  This means that you do not lose your case just because there was no penetration; you would just sue for a different cause of action.

How is Consent Determined in Sexual Abuse Cases?

Different states draw the line in different places for defining what constitutes valid consent.  In general, sex will be considered a crime or a violation of civil law if it is performed without consent.  However, some states require more than just a lack of consent, requiring force or force to overcome resistance.

Age

The “age of consent” is the legal age at which people can give consent.  People under the age of consent are considered to be unable to consent to sex, so it will always be considered some type of sexual abuse or sex crime for an adult to have sex with them.

Usually, the age of consent is not enforced against people who are close in age, with some states having specific cutoff points and “Romeo and Juliet laws.”  These laws often prevent charges for consensual sex between minors or a minor and a young adult.

Just because sex was consensual does not mean it wasn’t abuse, and just because you were old enough to consent doesn’t mean you did, in fact, consent.

Lack of Force

As discussed above, force is sometimes an element in rape and sexual assault charges and torts.  In this analysis, the court is forced to consider it consensual unless the victim fought back.  However, many victims of sexual assault do not fight back and should still be given the right to sue for what happened to them.

Most states consider mere lack of consent enough, but this is a law that changes state by state, so speak with our lawyers for more help.

Drugs and Alcohol

Many states say that you cannot give valid consent if you are under the effects of drugs or alcohol.  Some states might have more specific rules, such as a requirement that the person be “incapacitated” due to drugs or alcohol before consent is impossible.  This would mean that you might be able to give valid consent if you had a beer or two but not if you had ten.

Many cases of sexual assault, sexual abuse, and rape come down to whether the victim was “too drunk to consent” or not, and this might be the primary issue in your case.  Our lawyers can advise you on what the law is in your state and how it would apply to your specific situation.

In some states, it will make a difference whether consuming drugs or alcohol was voluntary.  For example, a Minnesota bill changed the law in 2021 to include voluntary intoxication as enough to disable your ability to consent.  In a high-profile case, the Minnesota Supreme Court had previously overturned a conviction because the victims took drugs on purpose, saying that only cases where they were drugged against their will could be prosecuted.  This newer law is better for victims and allows claims of rape and sexual abuse even when the victim was the one who got themselves drunk.

Withdrawn Consent

States have different rules on whether consent can be withdrawn or taken back once sex begins.  In many cases, victims begin to have consensual relations with someone but change their minds partway through and decide to stop.  By some definitions, continued sex will be considered sexual assault, but it will require investigation into your state’s specific rules, previous court rulings, and the facts of your case.

Marriage

Some very old sexual assault and rape laws include a carve-out such that men cannot be charged for raping their wives.  Most states have changed these laws, and they might only apply to criminal charges anyway.  Instead, most sexual abuse is illegal, even if the perpetrator is married to the victim.

Communicating Consent

States will vary as to whether your lack of consent needs to be communicated clearly/voiced out loud or not.  Sometimes, if there is no clear “no,” the case can be questioned.  In others, it might be assumed to be non-consensual unless there is an affirmative “yes.”

In most cases, the question of whether there was or was not consent will not be a question of what the law says but rather a question for the jury.  In these situations, the jury will be able to look at the totality of the circumstances, analyzing evidence of what was said at the time, how both parties responded, how each party acted physically, and the parties’ mental states at the time.

Identifying and Documenting Sexual Abuse for a Lawsuit

It might be difficult to understand whether what happened to you was sexual abuse or not.  It might be even harder to identify whether a loved one has been sexually abused.  In general, you should always talk to doctors, friends, therapists, and a lawyer about what happened.  This helps create a contemporaneous record of your understanding of the events and can help prove when you started to consider what happened to be abuse.  However, consider avoiding specific details, as statements could be used against you if they end up being inconsistent.

Call Our Sexual Abuse Victim Lawyers Today

If you suspect you or a loved one was a victim of sexual abuse, reach out to our sexual abuse victim lawyers at The Law Office of Andrew Shubin by calling (814) 826-3586.