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A friend of mine was groped by a man she knows while she was asleep. She didn't wake up because of her medication which makes her sleep pretty heavily. The man has fully admitted to doing this, so there is no debate as to what happened.

The investigator has said that according to Virginia law, what he did was wrong but not illegal. Since "he didn't use force, threats, or intimidation, it's legal. So in VA, you can do many things to someone who is asleep provided that if they wake up and tell you to stop, you stop." (quote from friend paraphrasing investigator).

I find it extremely hard to believe that you can sexually assault a person so long as they remain unconscious don't resist you. Is this really how the law in Virginia works? What are the limits of what you are legally permitted to do to an unconscious person?

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Short Answer

No. This is not legal under Virginia law. It is a serious crime.

Long Answer

The basic reasoning

This would be actionable as aggravated sexual battery and punishable by up to 20 years in prison, because the facts demonstrate a touching of intimate parts with an intent to molest (i.e. sexual abuse) and this is accomplished through the victim's physical helplessness, which includes being unconscious at the time for any reason.

Intent to Molest, Gratify or Arouse

Contrary to user6726, I don't think that groping in the factual context of the question can be reasonably interpreted as lacking an intent to molest under the statute. An interpretation that requires an effect on the victim would be contrary to the fact that the statute is talking about the intent of the perpetrator and to the fact that the statute expressly authorizes prosecutions in cases where the victim is physically helpless a definition that includes unconscious or drugged. One could probably get the court to provide an extra non-standard jury instruction if this was raised by the defense at trial as an issue.

The intent to molest, gratify or arouse intent requirement is designed to distinguish between, for example, giving a sponge bath to an unconscious patient at a medical facility or by a family member, or touching someone's breasts in order to get a bra size for a tailor, and "groping." The intent requirement also excludes unintentional conduct such as slipping and falling into someone by accident. The admission by the perpetrator in the question doesn't suggest any possible non-sexual reason for the contact, and is inconsistent with unintentional conduct.

Corroboration From Actual Recent Prosecutions

This reading is consistent with the fact that Virginia prosecutors have brought charges in similar circumstances such as the rape of an unconscious woman at a house party and charges against a Virginia DJ for his conduct towards unconscious women. The only material difference between rape and aggravated sexual battery under Virginia law is that rape requires penetration, while sexual battery merely requires sexual contact.

Additional Commentary

Reaching this conclusion is a bit tricky, because usually aggravated sexual battery would have a narrower definition of the crime than "plain vanilla" sexual battery.

But, in Virginia, there is conduct that constitutes aggravated sexual battery which does not constitute "plain vanilla" sexual battery, including molestation by accomplished through physical helplessness which is defined broadly in the relevant statute.

In other words, in this fact pattern, "sexual battery" is not a lesser included offense of "aggravated sexual battery" under subsection A(2) of § 18.2-67.3 of Virginia's statutes. Plain vanilla sexual battery includes the circumstances of subsection A(4) of § 18.2-67.3 of Virginia's statutes and some special "statutory rape"/"position of trust" type conduct that is outside of the scope of both A(4) type conduct and aggravated sexual battery generally.

I would attribute the statements of the investigator as symptom of poor training about sexual assault cases and a generally regressive state of law enforcement attitudes about sexual assault in Virginia. Your friend should insist on talking to the investigator's supervisor and reviewing the relevant legal citations, with a lawyer, if necessary, if she wants to press charges.

Of course, the prosecutor has no obligation to prosecute the case even if the prosecutor had a videotaped confession to every element of the crime. But, there is no reason for a prosecution to be prevented due to a non-lawyer investigator's misunderstanding of the law. A letter of complaint to the investigator's supervisor or the head of the department or the politician to whom the department reports would also be in order.

The Statutes

The statute creating the crime is as follows, with all of the pertinent language in bold. I have put the word "or" when necessary to see how the statute fits together (which could be omitted in a block quotation showing omissions with ". . .") in italics and have left the remainder of the relevant statutes in plain text to allow a reader to confirm that the reading I am giving to the statute is correct.

§ 18.2-67.3. Aggravated sexual battery; penalty.

A. An accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and

  1. The complaining witness is less than 13 years of age, or

  2. The act is accomplished through the use of the complaining witness's mental incapacity or physical helplessness, or

  3. The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less than 18 years of age, or

  4. The act is accomplished against the will of the complaining witness by force, threat or intimidation, and

a. The complaining witness is at least 13 but less than 15 years of age, or

b. The accused causes serious bodily or mental injury to the complaining witness, or

c. The accused uses or threatens to use a dangerous weapon.

B. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility for a term of not less than one nor more than 20 years and by a fine of not more than $100,000.

This in interpreted in light of some key definitions:

§ 18.2-67.10. General definitions.

As used in this article:

  1. "Complaining witness" means the person alleged to have been subjected to rape, forcible sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated sexual battery, or sexual battery.

  2. "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person.

  3. "Mental incapacity" means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known.

  4. "Physical helplessness" means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known.

  5. The complaining witness's "prior sexual conduct" means any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article.

  6. "Sexual abuse" means an act committed with the intent to sexually molest, arouse, or gratify any person, where:

a. The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts;

b. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts;

c. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or

d. The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts.

Also relevant is this statute:

§ 18.2-67.6. Proof of physical resistance not required.

The Commonwealth need not demonstrate that the complaining witness cried out or physically resisted the accused in order to convict the accused of an offense under this article, but the absence of such resistance may be considered when relevant to show that the act alleged was not against the will of the complaining witness.

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Under Virginia law, this is not rape, which is defined in terms of sexual intercourse.

What is sexual battery?

Sexual battery is when one

sexually abuses, as defined in § 18.2-67.10, (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse

and sexual abuse is

an act committed with the intent to sexually molest, arouse, or gratify any person

("complaining witness" in fact is the person alleged to be the victim, and this does not mean that the victim must "press charges").

Is the act 'sexual abuse'?

So the first question is whether the act constitutes "sexual abuse": did someone (the violator) have the intent to sexually molest, arouse, or gratify a person. One might suppose that the assailant intended to arouse himself, or to gratify himself. And then the question is whether this means specifically "sexually arouse" and "sexually gratify", or would it be contrued as general arousal, or gratification. If the latter, it would be very hard to argue that the act was not "sexual abuse", but if the former, the counter-argument could be "I thought it was funny" or "I hated her and did it out of spite".

The scope of "sexual" is ambiguous: it could refer to just the first of the terms, or all three terms. There is no official name for the jurisprudential principle identified by Solan (The language of judges) as the "across the board rule", which is sort of the opposite of the last antecedent rule (which has you interpret ambiguous modifier-modified relations narrowly). A narrow interpretation of "sexual" (i.e. "sexual molestation, or any kind of gratification") would have the bizarre consequence that anything that makes someone happy, like telling a person a joke, constitutes sexual abuse. This is absurd, therefore the intended meaning must be "sexually molest, sexually arouse, or sexually gratify". Prosecution might procede on the premise that the assailant intended to receive sexual gratification from the act. Or, it could proceed on the premise that the act is sexual molestation.

What does it mean to 'sexually molest'?

The statutes do not define "sexual molest". Jurors could make the determination in one of two ways. First, there could be a jury instruction that defines the phrase (presumably derived from distillation of prior case law); second, they could assign the expression the "plain meaning". The danger here is that the plain meaning of "molest" is based on an effect on the victim, which arguably does not exist in this case. However, most people would feel that this is sexual molestation.

The instruction spelling out the definition of sexual abuse is slightly different from what the statute says, but does not flesh out "sexually molest":

Sexual abuse means an act committed with the intent to sexually molest, arouse or gratify any person, where the defendant intentionally touches the complaining witness’ intimate parts or material directly covering such intimate parts.

It should be noted that ordinary consensual sex is, under Virginia law, "sexual abuse" (which itself is somewhat absurd, and will certainly be confusing). Sexual molestation is not a crime: sexual abuse is.

What is the difference between sexual abuse and sexual molestation?

"Abuse" adds to the meaning of "molestation" that "abuse" is "against the will of the complaining witness, by force, threat, intimidation, or ruse". The later 3 conditions are clearly not applicable. Is the act "against the will", or "by force"? Neither expression is given a legal definition. Again, these terms are taken to be self-evident, and the jury instructions do not clarify what constitutes "against the will" or "by force". The question would arise whether "against the will" specifically mean "contrary to the will", or "lacking a will to do so". Force in the broadest sense includes any kind of touching.

A minor complication is that the law defines the crime in terms of "against the will of the complaining witness, by force, threat, intimidation, or ruse", which could be interpreted as "any of these five reasons". Or it could be interpreted as "against the will when it is by one of these four means". The second interpretation would mean that the state has more things to prove and fewer choices, the former means it has only one thing to prove and more choices. Because of the comma, this is to be interpreted as a list of 5 things. If the statute said "against the will of the complaining witness by force, threat, intimidation, or ruse", it would mean "by force which is one of the following four".

What about assault (or battery)?

There is no crime of "sexual assault" in Virginia (it is subsumed under various other names). There is a crime labeled assault and battery, which says

Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor

That means that battery alone is not a crime: the crime involves at least assault. There is no further statutory explication of "assault" and "battery", but the instructions say that

An assault is [an overt act intended to do bodily harm to another together with the present ability to cause such harm; an overt act intended to place a person in fear or apprehension of bodily harm that creates in (him;her) a reasonable fear or apprehension]

Arguably, groping is not intended to bodily harm another. The tort law understanding of battery is a bit different (often conflated with assault), since it also includes "offensive contact", and "harmful" and "offensive" contact are not the same. Virginia omitted the "offensive contact" part of the concept. In tort law, "harm" includes "physical harm" (which is "physical impairment") and other kinds of harm (i.e. detriment). Lewd touching is not physical harm, but it is harm. It's uncertain whether it is bodily harm (harm with respect to the body? or a rewording of "physical impairment"?), using Virginia's terms.

Since the require requires at the minimum that there be an assault, and since offensive contact is not assault, we should stop here.

Still, you might want to know about "battery" since that might cover the situation you're interested in. The term "battery" is explained in the jury instructions

A battery is the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting or vengeful manner

This does not require that the victim have any knowledge of the act. Unsurprisingly, the law does not define what constitutes "in an rude manner", however people would ordinarily interpret groping without consent as "rude". However: simple battery is not a crime. There are certain special conditions where battery (without assault) is a crime: battery against a health care provider, battery against a full-time or part-time employee of any public or private elementary or secondary school on the job.

Under the tort version of the "interest in freedom from offensive contact contacts" (see §18, Restatement, 2nd) illustration 2 says

A kisses B while asleep but does not harm her. A is subject to liability to B.

In the present case, the accused is liable for the tort of battery. But criminal law is different.

So, on a narrow reading of Virginia (criminal) law, the investigator is apparently correct.

  • I think that your reading is unduly narrow. Groping an unconscious person would probably constitute battery under Virginia law, at a minimum. For example, charges were brought in a factually similar case here: eveningsun.com/story/news/2017/03/22/… and here: nbcwashington.com/news/local/… – ohwilleke Sep 7 '17 at 1:40
  • The big problem is that sexual battery is not the proper crime. Aggravated sexual battery is and includes a broader range of conduct than simple sexual battery, contrary to good statutory drafting practice. – ohwilleke Sep 7 '17 at 2:26

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