Sexual Battery in Tennessee will make you a convicted felon and a sexual offender on the Sexual Offender Registry
Sexual Battery is unlawful sexual contact accomplished by force, coercion, or fraud and without consent. The offense can be heightened to Aggravated Sexual Battery if the victim is less than thirteen years old. A person can be charged with Sexual Battery for groping another person’s private parts.
Sexual Battery and Aggravated Sexual Battery can result in a felony conviction, a prison sentence that must be served at 100%, Community Supervision for life, and being placed on the Sex Offender Registry for life as a Violent Sex Offender.
This offense will result in the individual being placed on the Sex Offender Registry. If you have been charged with Aggravated Sexual Battery, please contact me immediately to discuss how we can defend your reputation and your freedom.
I have written an entire consumer guide for individuals charged with this offense, which can be downloaded for free here. You can also read my original blog entry discussing the consumer guide and its contents here.
Tenn. Code Ann. 39-13-505. Sexual battery.
(1) Force or coercion is used to accomplish the act;
(4) The sexual contact is accomplished by fraud.
(b) As used in this section, “coercion” means the threat of kidnapping, extortion, force or violence to be performed immediately or in the future.
(c) Sexual battery is a Class E felony.
Tenn. Code Ann. 39-13-504. Aggravated sexual battery.
(1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon;
(2) The defendant causes bodily injury to the victim;
(3) The defendant is aided or abetted by one (1) or more other persons; and
(A) Force or coercion is used to accomplish the act; or
(4) The victim is less than thirteen (13) years of age.
(b) Aggravated sexual battery is a Class B felony.
Excerpt from my Sexual Battery consumer guide:
I. The first thing you need to understand about the offense of sexual battery is that the offense is all about “unlawful sexual contact” that is less than sexual penetration (otherwise, the offense would be rape). So if you’re charged with sexual battery and then you blurt out to the police that you and the alleged victim ‘never even had sex,’ then you’re missing the point – no one is saying that you did.
Unlawful sexual contact is further defined under Tenn. Code Ann. § 39-13-501 as “the intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”
Notice in the definition above that sexual contact can occur because the defendant touched the alleged victim’s private parts, or because the defendant forced the alleged victim to touch the defendant’s private parts. Also, notice that no one ever has to be naked – the touching can occur through the clothing.
II. The second thing you need to know about this offense is that “force or coercion” must be used to accomplish the act. This could be as simple as groping a woman’s breast at a bar, so don’t think that all that much is actually required with this element – the point is that the alleged victim did not consent to the behavior.
We all know what force is, but coercion is more complicated and varied – in a case for rape and sexual battery, a defendant threatened to publicly expose the victim as a homosexual unless he cooperated, and the jury found that this sexual offense was accomplished through the use of coercion. State v. McKnight, 900 S.W.2d 36 (Tenn. 1994).
III. The third (and most interesting thing) you need about sexual battery is that it can also be accomplished by fraud. Tenn. Code Ann. § 39-13-505.
Sexually battery by fraud is controversial and not allowed in some states because it opens defendants up to scenarios that many would consider mere ‘pillow talk.’ However, in Tennessee, prosecution under these facts is permitted.
Imagine that you told a person that you were single, or did not have an STD, or were a casting agent in Hollywood (and I’m being a bit ridiculous here, but you get the point). If the alleged victim consented to you touching him or her at the time based on the fraud that you perpetrated, and that person would never have consented to the sexual contact if he or she knew the truth about what you lied about, then that person did not really have a knowing consent, because you misled them in order to get their consent under false pretenses.
What facts can make the charge more serious?
I have already defined the standard offense of Sexual Battery above, but a good working definition is an unlawful sexual contact accomplished by force, coercion, or fraud and without consent.
Sexual Battery is a Class E felony. The range of punishment for a Class E felony is “not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000).” Tenn. Code Ann. § 40-35-111.
There are two heightened versions of Sexual Battery with additional elements and greater punishments, which include:
1) Sexual Battery by an Authority Figure, and
2) Aggravated Sexual Battery.
If the above elements of Sexual Battery are met, but any of these additional factors are present, then the charge will be Sexual Battery by an Authority Figure:
(1) The victim was, at the time of the offense, thirteen (13) years of age or older but less then eighteen (18) years of age; or (2) The victim was, at the time of the offense, mentally defective, mentally incapacitated or physically helpless, regardless of age; and, (3) (A) The defendant was at the time of the offense in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional or occupational status and used the position of trust or power to accomplish the sexual contact; or (B) The defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual contact. Tenn. Code Ann. § 39-13-527.
Sexual Battery by an Authority Figure is a Class C felony. The range of punishment for a Class C felony is not less than three (3) years nor more than fifteen (15) years based on the classification of the defendant. In addition, the jury may assess a fine not to exceed ten thousand dollars ($10,000).” Tenn. Code Ann. § 40-35-111. The sentence must be served 100% day for day, meaning that the defendant will get no sentence reductions for good behavior.
If the above elements of Sexual Battery are met, but any of these additional factors are present, then the charge will be an Aggravated Sexual Battery:
(1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon; (2) The defendant causes bodily injury to the victim; (3) The defendant is aided or abetted by one or more other persons, and either a) force or coercion is used to accomplish the act; or b) the defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or (4) The victim is less than thirteen (13) years of age. Tenn. Code Ann. § 39-13-505.
Aggravated Sexual Battery is a Class B felony. The range of punishment for a Class B felony is not less than eight (8) years nor more than thirty (30) years based on the classification of the defendant. In addition, the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000).” Tenn. Code Ann. § 40-35-111. In most cases, the sentence must be served at 85%, meaning that the offense must be served without the possibility of parole, and no credits may be applied to reduce the sentence by more than 15%.
Keep in mind that each sexual act can count as a separate incident and support multiple convictions. State v. Hogg, — S.W.3d –, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).
Could this charge put me on the Sex Offender Registry?
Sexual Battery will place a criminal defendant onto the Sex Offender Registry as a Sexual Offender, which means that a convicted defendant can petition for removal after ten years of compliance.
Both Sexual Battery by an Authority Figure and Aggravated Sexual Battery will place a criminal defendant on the Sex Offender Registry as a Violent Sexual Offender, which means that a convicted defendant will be on the Sexual Offender Registry for life and also have Community Supervision for life. Tenn. Code Ann. § 39-13-524.
Can I get a diversion on this offense?
If you’ve done some research online (perhaps on my website, which is located at MemphisDiversion.com), then you know that judicial diversion is a wonderful program that allows individuals with little to no criminal background to enter a guilty plea in a manner that avoids future jail time and the eventual expunction of the criminal charge upon the successful completion of a probationary period. Tenn. Code Ann. § 40-35-313.
After the criminal defendant enters a guilty plea, the sentence is suspended and the charge would show on a criminal background check as a pending offense (not a conviction). If the criminal defendant is successful, he or she has achieved the same result as winning at trial.
Sexual Battery is eligible for diversion, but the heightened offenses are not.
Sexual Battery by an Authority Figure and Aggravated Sexual Battery are not eligible.
What defenses are unavailable?
The most obvious defense is that the alleged offense never happened. This offense rarely leaves forensic evidence, so in the absence of eye witnesses, the result of the trial will turn mostly on your testimony (assuming that you testify) in comparison to the testimony of the alleged witness – whoever is more credible will prevail.
There is also a potential defense as it relates to the consent: the statute says that “sexual contact is accomplished with the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent” (Emphasis added).
Let’s break that down further:
- Knows: If an alleged victim says “don’t touch me,” then you have actual knowledge – pretty clear.
- Or has reason to know: If the circumstances of the encounter are that you just met a person, and with no provocation or encouragement, you reach out and place her hand on the person’s buttocks and squeeze it … well, you might not have explicitly been told ‘no’ beforehand, but you had a pretty good idea that this was not acceptable.
(And this should be obvious, but dressing provocatively, flirting, etc., still doesn’t entitle a defendant to start grabbing things without asking first.) However, if you and the alleged (adult) victim are in a heated make-out session and it seems like both individuals are ready to take the action further, and then the alleged victim shrieks when you touch the alleged victim sexually, then perhaps the touching was reasonable based on the circumstances. (Perhaps not).
- At the time: This requirement is more interesting. One can certainly imagine a scenario where an alleged victim consented at the time of the touching, but then later removed consent on ‘the morning after.’ Certainly, the alleged victim can remove further consent, but the revocation of consent does not make the previously consented touching retroactively unlawful.
This all assumes that the victim is an adult who has the capacity to consent, and is in no way mentally defective, mentally incapacitated, or physically helpless.
Could law enforcement seize my house or car over this?
Yes. If a criminal defendant was found to have committed a sexual battery against a minor, the real or personal property is subject to judicial forfeiture. The offense must be committed against a person under eighteen (18) years of age on or after July 1, 2006. Tenn. Code Ann. § 39-13-530.