What is Considered Sexual Assault? A Guide on Sexual Assault.

  • Posted at Oct 20, 2020
  • Written by yellowbrick
What is Considered Sexual Assault? A Guide on Sexual Assault.

Published with permission from Florin/Roebig Trial Attorneys
Published: December 16, 2019 Last Modified: July 22, 2020

If you’re searching for advice on what to do after a sexual assault, consider this step-by-step guide for a detailed overview of what to do immediately following the incident, your rights, sexual assault laws in your state, and how to seek help with filing a sexual assault claim.

Trigger Warning: If you have been sexually assaulted, this guide may contain information that is painful or difficult to read.

If you’ve been sexually assaulted, it can be hard to know what to do, whether the incident happened a few hours ago or a few years ago. You may be feeling a myriad of emotions, from shame to anger, or even guilt. You may need medical care, but feel too upset or humiliated to seek it. And you may want to seek legal help, but be unsure where to turn for support after such a traumatic experience.

Immediately following a sexual assault, your safety should be the number one priority. Beyond seeking immediate stability, it’s important that you know your legal rights in case you want to file a sexual assault claim now or in the future.

Perhaps the most important thing to understand is that healing and recovery should be your greatest goal following a sexual assault, but legal recourse may be available, too. Whether you seek damages for physical, emotional, or psychological harm, a sexual assault claim may help with the recovery process.

What Is Considered Sexual Assault?

With so much stigma surrounding sexual assault, it’s necessary to first have an understanding of the definition of sexual assault. This type of assault unfortunately takes many forms. When considering a sexual assault, it’s important to remember that the incident is never the victim’s fault and that if force or coercion was used and the actions were nonconsensual –  not wanted or agreed to (having a person’s consent), an assault occurred.

Types of sexual assault include any unwanted sexual activity:

  • attempted rape
  • fondling
  • unwanted sexual contact or touching
  • forcing victim to perform sexual acts (i.e. oral penetration or other forms of sex)
  • rape: unlawful sexual intercourse or penetration of the victim’s body by a body part or object

Other sexual crimes include:

Consideration Of Force In Sexual Assault

Force is not simply defined as physical force, such as holding a person down to assault them. Force can also be when one person coerces another with emotional or psychological force. Examples of this include threats and verbal abuse. If the person who assaulted you threatened to hurt you, your children, your family, or themselves, this is an act of force.

Consideration Of Consent In Sexual Assault

Every sexual assault case hinges largely on the consideration of consent. Consent in a sexual act means all parties are in agreeance to the act. Without consent, the act is considered an assault.

Some important things to remember about consent include:

  • a person can change their mind about consenting to sexual acts at any time
  • consenting to one sexual act does not mean they consent to all or further acts
  • consent to past sexual acts or current sexual acts does not guarantee future consent
  • consent is about communication, whether with words or verbal cues or physical signs
  • minors are particularly vulnerable and the minimum age of consent in many states is 16
  • those with developmental or intellectual disabilities may also not have the ability to give content to sexual activity

Is Sexual Assault Considered Rape?

Rape is a form of sexual assault. However, not all forms of sexual assault will be considered rape. Rape is penetration of the anus or vagina, in any capacity, with any object, that is unwanted or forced.

States have differing laws for definitions of rape. If you choose to pursue legal action, your attorney can help you understand the definition of rape in your state and the laws surrounding it.

Although not all forms of sexual assault are considered rape, every form of sexual assault can be traumatic and damaging. Regardless of the type of sexual assault, you have rights.

What Are My Rights After A Sexual Assault Incident?

You have the right to report any form of sexual assault and to seek legal action against the perpetrator. This includes formally documenting the incident and seeking a medical evaluation to document the physical effects.

While choosing to seek justice after you’ve been sexually assaulted may seem daunting, it may ultimately lend to your recovery. Following an assault, you may be riddled with anger, frustration, and a sense of injustice at what happened to you. You may not want to admit to yourself or others what happened, believing doing so will make it more vivid or force you to relive the incident over and over.

Yet seeking legal repercussions against the perpetrator can help by giving you the peace of mind in knowing the perpetrator did not walk away, that you may prevent future incidents, and give you a sense of empowerment, something that is stolen from many sexual assault victims in the wake of an incident.

Common Concerns When Filing A Sexual Assault Report

After a sexual assault incident, many are afraid to report the incident for many reasons. From fear of others finding out to fear of others not believing the incident happened, victims may choose not to report. Reporting what happened to you can be important—even if you choose not to file a claim against the perpetrator.

While you may be very shaken up to physically unsound after an assault, reporting can be crucial. If you can name the perpetrator, it helps ensure that others will not be attacked in the future. If you don’t know your perpetrator but can describe them, this can give police something to refer to when trying to identify an offender.

Sexual assault in any form can rob you of your confidence, self-esteem, and sense of safety. Reporting the incident may be incredibly painful at the time, but can help protect others, bring legal or punitive action against the perpetrator, and expose the perpetrator for their harmful, damaging behavior.

Here is a list of common concerns when filing a sexual assault report and reasons it may help to report the incident anyway:

  • Knowing the perpetrator: Unfortunately, the majority of victims know the person who assaulted them. Bringing action against them helps protect future victims. If the perpetrator was a family member, this can be especially motivating as exposing the perpetrator could help ensure no more of your family members will be harmed.
  • Severity of assault: Some victims may have fought their attacker, or the incident may have been discovered by a third party. If penetration or strong evidence of physical harm did not occur, they may not feel they have a right to report. Sexual assault in any form is illegal and you have the right to report it.
  • Being in a relationship with the perpetrator: Sadly, some people will turn to force or use force regularly on their partners during sexual acts. Even if sexual abuse regularly occurs, it is still considered sexual assault each time. If force is used at all, then the act is an assault.
  • Worrying people won’t believe it happened: All law enforcement is trained in handling sexual assault reports. If an officer is not understanding and unbiased, you may request to speak with their superior officer.
  • Consequences: Exposing someone for a crime can be difficult to do, even if it’s warranted and even if they deserve whatever repercussions they may receive. If the perpetrator threatened consequences if you tell anyone, this can be difficult to overcome. Many organizations exist to help keep sexual assault victims free from harm and away from perpetrators.

What To Do After You’ve Been Sexually Assaulted

Trauma caused by sexual assault can lead to a number of effects, including making it difficult for you to seek help after the incident. Trauma often mutes the victim’s ability to feel strong and empowered enough to tell others about the incident, find treatment, or pursue repercussions for the perpetrator.

In fact, much of recovery following sexual assault focuses on teaching ways for individuals to gain back their sense of strength, independence, and self-worth following an incident.

If you’re unsure what to do after you’ve experienced sexual assault, follow this step-by-step guide for what to do immediately after a sexual assault and how to file a sexual assault claim.

1. Seek Safety And Support

First and foremost, your safety should be the number one priority. Seeking physical stability and environmental safety after an incident is the most important step. Whether you head to a hospital, a police station, or a close friend’s or family member’s home, go to a safe place that helps you feel secure and where you can receive the emotional support you need.

Trying to focus on getting safe may be difficult after an assault; you may be unable to focus on anything but the injustice of what happened to you—and rightfully so. Shock and derealization can set in, as your body and brain are desperately trying to cope with the aftermath of the attack. But once you’re safe, you can begin the process of receiving support, finding ways to heal, and seeking recourse.

Because sexual assault has an effect on your mental health it can trigger emotional and psychological shock, taking action and finding help may be extremely difficult to do. In order to ground yourself, experts recommend speaking to someone close to you to help soothe the panic you’re feeling.

Call someone who will be understanding and offer a judgment-free listening ear, as well as help you get home, to a hospital, or to file a report. Victim-blaming and stigma surrounding sexual assault can deter victims from seeking help, even from those closest to them.

If you’re uncomfortable calling someone close to you, most states have certified advocates  available 24/7. These organizations provide confidential support, crisis intervention, and also provide information on available resources and advocate victims’ rights. You can also reach out to the National Sexual Assault Hotline for professional support at (800) 656-HOPE (4673).

2. Consider Seeking Medical Care

You may want to avoid going to a hospital and seeking medical attention for a number of reasons after you’ve been assaulted. Shock, shame, anger, and panic may be coursing through your body and you likely don’t want to experience that in front of people you don’t know. However, seeking medical care immediately after a sexual assault may benefit you in the long run, whatever you decide to do in terms of pursuing the perpetrator.

The biggest goal of seeking medical care after a sexual assault is to make sure you are medically sound. Even if you don’t have physical injuries on the outside, you may have internal injuries which need to be addressed as soon as possible. Health care personnel are trained to give the most compassionate care possible to assault victims and can administer the proper care, including medications to help you feel calmer if necessary. They can also test for HIV, sexually transmitted infections, and pregnancy.

If you experienced rape, you may want to consider filing a sexual assault rape kit. Should you choose not to file a police report right away, the sexual assault kit can be kept frozen until you’re ready.

While getting a sexual assault kit can be daunting, the window for being tested for sexual assault is often 72 hours or less, so it’s important to do this as soon as possible. You can decide at a later date what to do in terms of reporting the incident or filing a sexual assault claim.

3. Find Ways To Address And Process The Incident

A common coping mechanism for sexual assault or other trauma is to ignore the incident and act like it didn’t happen. This is completely understandable as many victims are eager to get back to life as normal and not be seen as victims. Yet addressing and talking about the incident are important to the healing process.

Each survivor must deal with sexual assault in his or her own way. Recovery involves relying on healthy and productive coping mechanisms. You can seek a form of talk therapy to work through the difficult emotions or feelings which will arise in the weeks, months, and years to come. These include cognitive behavioral therapy and dialectical behavior therapy.

Self-serving habits include journaling, breathing exercises, meditation, yoga, and many more. If you seek professional support after an incident, doctors and organizations which help people heal after a sexual assault can provide you with a number of treatments to try until you find one that works for you.

4. Decide Whether To File A Sexual Assault Claim

In the weeks and months after you were assaulted, you may wrestle with the idea of filing a sexual assault claim, decide to file, talk yourself out of it, and so on. Ultimately, choosing to file a sexual assault claim is your decision and the benefits and drawbacks which come with it are factors you should carefully consider.

First, filing a sexual assault claim can help expose the perpetrator for their harmful actions. This can be particularly motivating if you know the perpetrator, as you may want to help ensure they cannot harm anyone else around you.

Seeing your perpetrator pay financially or through serving time in jail or prison may be gratifying and may bring a sense of justice. Sexual assault is a crime and filing claims is the best way to guarantee perpetrators are removed from society.

However, facing the perpetrator in court, reliving the incident during the claims process, and making the incident public knowledge may keep you from filing. In the end, the decision to file a sexual assault claim should depend on your healing goals and whether filing will help you in your recovery and later on in life.

How Long Can You Wait To Report Sexual Assault?

Because many sexual assault survivors choose not to file a claim right away, a common question they ask is, “how long do I have to file a sexual assault claim?” The answer can be complex. As is demonstrated in numerous sexual assault cases over the past decades, some survivors wait years to file a claim.

They may feel they can heal without filing a claim, or they may want to put the incident behind them without taking legal action. Politicians, celebrities, and other public figurers have been exposed for sexual assault when survivors choose to take action years after an assault in order to seek justice and expose the perpetrator’s actions to society.

Because of this and many incidents recently arising involving non-famous perpetrators, laws have been put in place regarding how long after a sexual assault claim can be filed. These are called statutes of limitations, and they vary by state.

Statute Of Limitations On Sexual Assault

To understand the statute of limitations on sexual assault by state, it’s first important to understand the factors which affect these laws. The statute of limitations on sexual assault in each state is dependent on several factors, including the type of assault, what type of crime category the assault falls into, and the age of the victim at the time of the assault.

For example, some states have no statute of limitations for sexual assault, which means you can file a claim as long as decades after the incident. Other states may restrict how long you have to file a sexual assault claim based on how they punish these crimes. For a state which punishes non-rape sexual assaults as misdemeanors, for example, the statute of limitations may range frrom one to three years.

Rape is often considered the most severe form of sexual assault, is considered a crime in every state, and is punishable by one year to up to a lifetime in prison. States have differing statutes of limitations for sexual assault that is considered rape (penetration without consent or by use of force). Many websites or organizations list sexual assault statutes of limitations by state, such as the Rape, Abuse, and Incest National Network.

If you need information on how long you have to file a sexual assault claim according to your state’s statute of limitations, the best way to obtain this information is by contacting a sexual assault attorney. These experienced lawyers are familiar with the laws on sexual assault and can explain them to you and help you understand your legal options.

Where Do Most Sexual Assaults Take Place?

Seeing sexual assault statistics and information can be heartwrenching. Yet understanding the scope of the issue can help survivors know that they are not alone and help fellow individuals know where to begin in order to start reversing the issue.

Sexual Assault In The Home

At least 70 percent of all sexual survivor victims knew their perpetrator, who may be a family member, friend, or acquaintance. Unfortunately, rape is the most under-reported crime and only 63 percent of other types of sexual assault will be reported. Only 12 percent of child sexual abuse is ever reported, and one in 10 women will experience rape, sexual assault, or sexual violence from an intimate partner.

Not wanting to expose a friend or family member, fear of consequences, and fear for destroying family dynamics can keep individuals from reporting sexual assault which happens at home or involves someone close to the survivor.

Sexual Assault On College Campuses

One in five females and one in 16 males are assaulted on college campuses every year, though 90 percent of these victims will not report the incident. Many perpetrators who self-report acts of sexual violence admit to repeat acts.

Most college campuses now have plans in place to help protect potential victims of sexual assault, from offering information on keeping students safe, to campus security systems, to campus security officers who escort students around campus.

Workplace Sexual Assault

Eight percent of all rapes take place at a victim’s place of work. If you experienced rape or sexual assault at work (by a co-worker for example), your employer is legally bound to take action against the perpetrator.

Most companies will not hire a former sex offender and it is not illegal to discriminate based on violent sexual history. If you experienced a sexual assault in the workplace, you may be able to request a leave of absence, implementation of stricter safety standards, change in work schedule, reassignment, or other changes to help you feel safe in the workplace.

If you’re worried about speaking to your employer after an assault, or are not sure how they will respond or what safety measures they can offer you, you can always speak to an attorney first to better understand what you may reasonably expect from an employer following a workplace sexual assault.

Another important topic to consider in regards to the workplace is sexual harassment. According to the U.S. Equal Opportunity Employment Commission (EEOC), sexual harassment in the workplace is defined as unwelcome sexual advances or other conduct of sexual nature that interferes with a person’s job performance or elicits a hostile, offensive, or intimidating workplace environment. This means that sexual harassment can range from an offensive sexual joke to unwanted physical advances. 

Examples of workplace sexual harassment include:

  • Talking about one’s sex life in front of other employees
  • Asking an employee about their sex life
  • Making jokes of sexual nature
  • Making comments on the attractiveness of other employees
  • Commenting on an employee’s appearance repeatedly
  • Circulating sexual photos or sexual information around the office
  • Sending emails or text messages that are sexual in nature
  • Spreading rumors about an employee that are sexual in nature
  • Touching another employee in an inappropriate and/or unwanted manner

Some conduct in the workplace is very obviously sexual harassment. However, some conduct may not be so black-and-white in terms of deciding whether it can be considered sexual harassment. The more covert displays of sexual workplace harassment are on the rise and often make it more difficult to clearly establish what’s acceptable and what’s not. If you are uncertain if a behavior or action is sexual harassment, it’s important to speak with a human resources employee or a manager to ensure you or another employee has not crossed the line and to seek help if they have.

Title VII of the Civil Rights Act of 1964 outlines two different types of sexual harassment in the workplace: hostile work environment and quid pro quo. Learn more about workplace sexual harassment here.

Sexual Assault During Rideshares

In the wake of so many rideshare services cropping up in the past few years, sexual assault during rideshares have become a serious issue, for passengers and drivers alike. Lyft was sued at least 7 times in the month of August 2019 alone for rides which were alleged to have ended in sexual assault or rape.

In the year of 2018, more than 3,000 sexual assaults were reported by Uber—42 percent of those reports were from Uber drivers. Some survivors were even charged for ride services after reporting the assaults.

This has drawn attention to a greater issue: that Uber, Lyft, and rideshare services lack the safety standards of older, more established communal ride services, like taxis. With so many incidents reported, these rideshare services are owning up to the problem and working on implementing secure safety standards to better protect drivers and passengers.

Sexual Assault Laws

In general, all forms of sexual assault are considered crimes in every state. The degree of punishment for the type of sexual assault varies by state. There are a number of laws in place which were developed over time to protect sexual assault survivors.

Different laws and acts deal with different areas of sexual assault. The Clery Act was established to require college campuses provide notice of sexual assault in a timely manner to students and staff and with greater transparency. The Amy and Vicky Child Pornography Restitution Act made it easier for survivors of child pornography crimes to seek and obtain restitution from those who possess child porn images.

Many more laws exist surrounding sexual assault. These laws are often largely established following a victim’s case which was not fairly resolved in the original court proceedings and led to a more involved case and a higher standard of law for this area of the crime.

The best way to understand the laws for your own situation is to speak to a sexual assault attorney. They cannot predict the outcome of your case, but can help you understand possible outcomes based on the details of the incident and explain which laws may apply.

What Will Happen If I File A Claim?

After filing a police report, charges can be filed against the perpetrator. Then, an investigator will be assigned to the case to examine all the details of the incident. The investigator will speak with you to gather details, as well as the perpetrator, and compile evidence for your case. Once all of these details are gathered, the investigator will turn the case over to the prosecutor’s office.

Some cases may be dropped due to lack of evidence, while others may proceed further. For this reason, it can be crucial to file a report soon after the incident and to seek medical care or get a rape kit on file.

The Sexual Assault Claims Process

If your case proceeds, you will first have a preliminary hearing before a grand jury where evidence from the case is presented. All evidence is turned over from the investigator, a process which may take up to six months, with the hope of protecting your privacy along the way.
Then will come the trial, which varies in length with each case. Trials result in sentencing of the perpetrator if they are determined to be guilty, with sentences and other punitive actions varying among states.

What About All The Untested Sexual Assault Kits?

The average sentence length for rape in the United States is 11 years. However, you may have heard of many sexual assault kits left untested and many cases being ignored or untried.

While there is no excuse for untested sexual assault kits, victims laws are currently being put into place in many states to ensure these kits are tested and repercussions sought for these crimes. In addition, the Survivors’ Bills of Right Act of 2016 has put many laws in place regarding the handling of rape kits.

Should you choose to obtain a sexual assault kit and file it, it is your right to expect that the kit be tested, to be informed regarding its testing, and to be heard by and involved in the criminal justice process. It may be necessary to obtain legal help along with the way to make sure your case proceeds and is not lost in the system.

Finding Help With Filing A Sexual Assault Claim

Sexual assaults are a terrible reality for many Americans, with someone harmed every 73 seconds on average in the United States. After such a terribly traumatic incident, a victim of sexual assault may shy away from filing a claim.

Yet filing a sexual assault claim can have many benefits, from bringing an end to the perpetrator’s crime record to providing closure and a sense of peace for your own recovery.

For help with filing a claim, understanding laws surrounding sexual assault in your state, or to simply be heard regarding a sexual assault, contact the experienced sexual assault attorneys of Florin|Roebig today.

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