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Sex Offenses

The common-law crime of rape was defined as unlawful sexual intercourse by force between a man and a woman. Married men by definition could not rape their wives because sexual intercourse in the marriage was lawful. Any other sexual act was not included, although there were separate laws that punished sodomy and bestiality. Force, or at least the threat of force, was required, and a woman had to prove resistance to the act, usually by intense physical struggle. Early statutes required corroboration from independent witnesses before the offender could be found guilty. Rape was a felony and the punishment always included imprisonment or death.

Modern statues prohibiting sexual assault have diversified rape in to a variety of crimes. Sexual assault is often defined to include any sexual act done against the will of another. Some state statutes specifically provide that it is unnecessary to establish physical resistance by the victim to prove that the act occurred against the victim's will. The laws are usually gender-neutral so that they protect all victims of sexual assault. Most state laws provide for varying degrees of sexual assault, with the most serious crimes involving physical injury, gangs, or young children. Many states also have passed rape-shield laws -rules of evidence-that protect the victim by limiting the use of the victim's prior sexual activity, thereby ensuring the focus of the criminal trial stays on the defendant's conduct.

Other sex offenses can be found throughout most state criminal codes. More and more states are repealing laws aimed at punishing private sexual behavior between consenting adults, such as those criminalizing adultery and homosexuality. However, new sex offenses such as sexual exploitation by a therapist and sexual abuse of children by child care workers have been added. Almost all states prohibit indecent exposure, prostitution, incest, pornography, and voyeurism.

Sentencing for sex offenders varies widely depending on the nature of the offense. The Supreme Court has banned the use of the death penalty for rape of an adult when it does not involve murder. However, first-degree rape can carry the state's harshest sentences, short of the death penalty. In contrast, indecent exposure may be classified as a simple misdemeanor and carry a minimal jail sentence or fine. In addition to incarceration or fines, many sex offenders are required to undergo treatment plans designed to prevent further sex offenses. Unfortunately, the most common treatments available to sex offenders tend to be behavioral therapy and counseling, which have limited rates of success. More promising results have been obtained with medication and adversive conditioning. Many states have implemented laws requiring sex offenders to register their addresses with police departments once they are out of prison. The police departments are then required to give notice to the community of the presence of the sex offender. Laws that provide for civil commitment of serious sex offenders after their prison sentence have been held to be constitutional, provided the government establishes that the offender has a mental abnormality that makes him or her likely to commit further serious sex offenses.

Checklist: Grounds for Deportation

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DISCLAIMER: This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.