The statute of limitations on sexual abuse is similar to other felonies. In Arizona, felonies, with the exception of murder and sexual assault, have a 7 year statute of limitations.
The sexual abuse definition in Arizona is found in ARS 13 1404. The offense consists of knowingly or intentionally having sexual contact with someone who is:
Sexual contact is defined as fondling or manipulating the genitals, anus, or the female breast, either directly or using any object, or by causing such contact by another person.
While sexual abuse, unlike statutory rape, does not include sexual intercourse or oral sexual contact, an essential element of the charge is that the act, at least to the extent that the alleged victim is 15 years of age or older, is “without consent. This means that the victim was coerced through force (or the threat of force), was incapable of consent because of drugs, alcohol, or mental defect, or was deceived as to the nature of the act, among other examples.
IMPORTANT NOTE: Consent is not a defense if you are charged and are in a “position of trust” with respect to a 15, 16 or 17-year-old victim.
The classification of sexual abuse depends initially on the age of the alleged victim. If the victim is:
Note that while sexual abuse may involve minors as victims, sexual abuse of a person of any age can be charged as a felony. While the age of the victim may come into play in the classification and penalty imposed, the fact that the victim is 18 years of age or older is not a defense to the charge.
It is easy to confuse the various sex crimes since they often sound similar. Here are a couple of examples:
Sexual abuse involves only sexual contact as defined by ARS 13 1404, whereas sexual assault involves sexual intercourse.
The essential difference between these two offenses is that sexual abuse covers, among other things, sexual contact with the female breast only of a minor under the age of 15. It is a class 3 felony. Child molestation covers all other sexual contact (genitals, anus) of a minor less than 15 years old. Child molestation is a class 2 felony.
Child luring is soliciting (or offering) sexual conduct with a person you know or have reason to know is a minor. “Sexual conduct” includes intercourse, masturbation, sexual sadomasochism, and numerous other sex acts. As noted previously, sexual abuse involves only contact. Child luring is a class 3 felony, and if the minor is under 15, it is a Dangerous Crime Against Children (DCAC).
As with most sex crimes, the sentence for sexual abuse depends not only upon which crime you were involved but also on the age of the victim.
Class 5 Felony – where the victim is at least 15 years old:
Class 3 Felony – where the victim is under 15 years old:
Where the minor is under the age of 15, the offense is also considered a Dangerous Crime Against Children (DCAC) pursuant to ARS 13 705.
The law in Arizona says that if you have sexual contact with a minor who is from 15 to 17 years of age, the prosecution must prove that it was without consent. The law goes on to state, however, that consent is not a defense where you are in a “position of trust” with respect to that minor.
The term “position of trust” is defined in ARS 13 1401, and includes a minor’s:
Arizona sex offender laws pursuant to ARS 13 3821, require those convicted of sexual abuse of a minor (a person under the age of 18), to register as a sex offender and be placed on the Arizona sex offender register.
However, the fact that the victim is not a minor may not eliminate the Arizona sex offender registry requirement. Sex offender registration can also be required by the judge if you are convicted of a sexual offense under chapter 14 of title 13 (including sexual abuse), and the judge determines that the crime was sexually motivated pursuant to ARS 13-118.
SIDE NOTE: In order for such a finding to be made, it must be specially alleged by the prosecutor, and proven beyond a reasonable doubt. “Sexual motivation” in this context means that the offense was committed for the purpose of sexual gratification.
Apart from various defenses that apply to a host of different crimes there are several defenses that are often raised in sex crimes and sexual abuse charges. When someone has been falsely accused of inappropriate touching, common defenses often include:
Sex abuse cases often depend on a confession by the accused. Many times, these confessions are obtained only after intense interrogations. As such, attacking the reliability of a confession is paramount to a solid defense strategy.
In addition to confessions made to police, there is often evidence of a secretly recorded confession made to the victim or their parent. These calls, referred to as confrontation calls, make the caller an agent of the State and as such make the caller subject to the same laws as the police. Additionally, it is also important to evaluate the legality of obtaining secretly recorded confessions pursuant to individual state laws.
There may be no physical evidence of sexual abuse, which means that the entire case could hinge on the testimony of a victim which may be a complete fabrication of the truth.
When police collect physical evidence such as DNA, items of clothing or trace materials they will normally apply for search warrants. The circumstances, legal basis and procedural requirements for a valid search warrant must then be carefully scrutinized by an experienced sex crimes lawyer. The failure to properly obtain physical evidence can lead to valid attacks of the State’s case pursuant to illegal search and seizure laws.
As is the case with other sex crimes, often times the accuser or a person close to them has a motivation to falsely accuse. Whether the accusation is coming from an ex-romantic partner or their child, if someone is falsely accused of inappropriate touching, identifying and investigating the allegation is an integral part of a well-established defense strategy.
Charges of sexual abuse can often be met by the defense that the contact alleged was not sexual. In particular with small children, there are a host of situations in which incidental contact may be made, but which was never intended to be covered as a sex offense under the law.
Many sexual abuse cases involve victims unknown to the defendant. Establishing and eroding the credibility of an eyewitness or victim’s testimony is an essential a part of an effective defense.
Sexual abuse charges can involve charges that may have been brought under the wrong statute, with the wrong allegations or incorrect aggravating circumstances.
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