Felony and Misdemeanor DC Sex Crimes

DC sex crimes attorney Jason Kalafat answers questions about the differences between felony and misdemeanor sex offenses.

What makes a sex offense a felony versus a misdemeanor?

Jason Kalafat: First degree sexual abuse is the highest level of felony sexual abuse. That is when someone is accused of engaging in or causing another person to engage in or to submit to a sexual act by using force; threatening or placing the other person in reasonable fear that they or someone else will be subjected to death, injury, or kidnapping; or rendering the person unconscious, meaning knocking them out or giving them a drug, intoxicant, or other substance that will substantially impair their ability to consent. That means engaging in a sexual act using force, threatening to use force, or making someone unconscious, whether it be through drugs, alcohol, or otherwise. That is first degree sexual abuse. A very important factor in this offense is defining what a sexual act is exactly. A sexual act is defined as any penetration of the private parts, which would include the anus or the vagina, by a penis; contact between a person’s mouth and penis, mouth and vulva, or mouth and anus; or any penetration using a hand, finger, or any other object. If the allegations involve any of those types of conduct, it is defined as a sexual act. That is how they determine that it is a first degree sexual abuse charge.

A second degree sexual abuse charge, which is one level down, is when a person engages in a sexual act by threatening another person or putting them in reasonable fear, or when the person knows or has reason to know that the alleged victim is incapable of appraising the nature of the conduct, is unable to decline participation in the sexual act, or is unable to communicate the unwillingness to engage in the sexual act. This situation would not have involved force, but rather the accused making a threat, putting the person in reasonable fear, or knowing that the person cannot consent. A common example of someone being unable to consent would be if they are inebriated or unconscious and the accused performs a sexual act upon them. Then the accused could be found guilty of second degree sexual abuse.

Third degree sexual abuse involves sexual contact as opposed to a sexual act. Sexual contact differs from a sexual act in that sexual contact involves touching either with your own body part or with an object, with or without clothing, of the genitalia, groin, breast, inner thigh, or buttocks of any person with a sexual, humiliating, harassing, or degrading intent. The difference between first degree and third degree is that third degree still involves using force or threats or rendering the person unconscious, but not performing any kind of sexual act. Third degree sexual abuse involves contact, whether it be over or under the clothing, and the intent is either sexual or is to degrade or humiliate the other person. That contact involves the genitalia, breast, inner thigh, or buttocks of the alleged victim.

Fourth degree sexual abuse is when a person engages in sexual contact with the alleged victim and the alleged victim is unable to appraise the nature of the conduct or incapable of declining participation. This is similar to second degree sexual abuse in which the victim is unconscious, in a position where they cannot consent, or cannot vocalize their lack of consent and sexual contact is made as opposed to sexual act.

Below those felony sexual abuse charges, there is misdemeanor sexual abuse. To some degree, it is a catchall charge. Misdemeanor sexual abuse is when someone engages in either a sexual act or sexual contact with another person while knowing that it was committed without the other person’s permission. It is a catchall because there are many situations in which the person could arguably be charged with a felony sexual abuse charge but the level of proof is not there or the conduct itself may not be as clear, so they charge the lower level misdemeanor sexual abuse. Most commonly, that occurs if someone is intoxicated and grabs the buttocks of another person at a bar, for example. Clearly, their conduct is inappropriate, but it may not rise to the level of a felony.

[Back to Sex Crimes Page]