Rape of a Child / Aggravated Rape of a Child

Rape of a Child / Aggravated Rape of a Child in Tennessee could cost you between 25 to 60 years in jail

Rape is the unlawful sexual penetration accomplished by force or coercion, without consent, or by fraud. The offense can be heightened to Rape of a Child if the victim is between the ages of three years old and thirteen years old.

A person can be charged with Rape of a Child for a number of reasons, to include a parent making the claim on behalf of a shared child to gain leverage in a custody battle or divorce, a well-intended teacher or parent who misinterprets a child’s fictional account, or a child’s account tainted by repeated interactions with law enforcement and social workers who are determined to find that the alleged act occurred.

Rape of a Child 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.

If you have been charged with Rape of a Child, 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. (I have incorporated Rape of a Child and Aggravated Rape of a Child into the book below despite the general title.) You can also read the excerpt on this page below the statute.

This resource discusses the statute, defenses, and sentencing for the Tennessee criminal offense of Rape of a Child

Tenn. Code Ann. 39-13-522. Rape of a child.

(a) Rape of a child is the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is more than three (3) years of age but less than thirteen (13) years of age.

(b) (1) Rape of a child is a Class A felony.

(2) (A) Notwithstanding title 40, chapter 35, a person convicted of a violation of this section shall be punished as a Range II offender; however, the sentence imposed upon such person may, if appropriate, be within Range III but in no case shall it be lower than Range II.

(B) Section 39-13-525(a) shall not apply to a person sentenced under this subdivision (b)(2).

(C) Notwithstanding any law to the contrary, the board of parole may require, as a mandatory condition of supervision for any person convicted under this section, that the person be enrolled in a satellite-based monitoring program for the full extent of the person’s term of supervision consistent with the requirements of § 40-39-302.

Tenn. Code Ann. 39-13-531. Aggravated rape of a child.

(a)  Aggravated rape of a child is the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is three (3) years of age or less.

(b)  Aggravated rape of a child is a Class A felony and shall be sentenced within Range III, as set forth in title 40, chapter 35.

Excerpt from my Rape consumer guide:

I can only give general advice here without having read the specific facts in your case, but I can say this – as you read this guide, you will probably be surprised at how many things you would like to present at trial but cannot.

Let me begin by saying that many people may not think you, as a rape defendant, should even be entitled to seek legal information on how to defend against a rape accusation.

These individuals are so uncomfortable with the concept of rape that they do not want to get into the details of ‘whether it happened (or didn’t happen),’ and especially ‘why someone might say that it happened even if it didn’t.’

These people may also think that you are a monster for even suggesting that a rape did not occur and making the accuser undergo a trial, because it could result in the accuser’s integrity, character, and personal lifestyle being drawn into question. Instead, they trust that if you cooperate completely without question and submit yourself to every mental, physical, and psychological examination in a “search for truth,” that the inevitable obviousness of a rare, rare false accusation will surely come to light, and you will therefore be cleared in that way. To attempt to counter an allegation in any other way would be in poor taste, this group will say.

On one hand, this group ‘sort of’ knows that you have a right to defend yourself, and they ‘sort of’ understand as a distant concept that not every accusation is truthful, but don’t fool yourself into thinking that you and the accuser are on level ground with this group of people.

But if you were to ask this group to acknowledge these deep-seated prejudices, not only would you highly offend them, but they would deny these feelings and thoughts to the end – and they would probably believe the words of denial as they left their mouths, truly feeling that you will be given the same presumption of innocence as any other person who has been accused of a crime.

And the name of this group of people is “the jury.”

Ten Facts that You Need to Know about Rape of a Child / Aggravated Rape of a Child

I.  The first thing you need to understand about the offense of rape is that after you have been accused of rape – regardless of guilt or innocence – you now occupy a special space in hell reserved for child abusers, that dentist who killed Cecil the Lion, and the proverbial snowball. You have a lot of climbing to do, just to get back to ground level and be seen as a human being again. It’s not fair, but it’s there.

Many jurors do not (or cannot) follow the jury instructions, and presume that you are innocent in the same way that they might against a person accused of stealing a handbag from Target. Now I’m not basing this on some actual quantitative data, but I’m telling you what I see in the courtroom. When potential jurors hear that they may be jurors for a rape trial, you can almost hear the air be sucked out of the room and the room gets twenty degrees hotter.

What this means is that you cannot sit back with a “let the State prove it” attitude and rely on the presumption of innocence. You can’t try not to lose, or try for a tie – be in it to win it, or take the best offer that you get if you can’t stomach going all in. You are fighting more than an intellectual battle of guilty versus not guilty – you are fighting a battle for the hearts and minds of the jury, and that takes a lot more than “Ladies and gentlemen, the State didn’t prove their case today.”

Unless you have an expert witness who can expose the State’s snake oil science, your attorney can catch the accuser in a significant lie (or walk a tender witness through a series of questions showing how they could be mistaken or felt coerced to lie), or basically prove an OJ-level police cover-up, then you will be convicted of rape.

II.   The second thing you need to know about rape is that a person can be convicted of rape with very little or even no forensic evidence.

There’s nothing more frustrating than to hear a rape defendant say things like, “They don’t have anything other than the accusation,” as if the State needed more! Banish the thought that the State actually needs forensic (i.e., scientific) proof such as pubic hairs, body fluids, abnormal bruising, or other TV-show flourishes – if the jury believes the accusation, and there is nothing else to support it (a he said, she said), then the State can get a conviction if the jury finds the accuser more credible than you.

Even when there has not been a sex act, the child could have been molested by another person, the child could have been injured through rough play (riding a bike, etc.), and there can be vaginal or anal bruising regardless — even if no rape occurred, the forensic evidence could still be inconclusive.

Yes, it absolutely helps that the State doesn’t have any of that evidence (unless they do). But what they do have is an accuser crying on the stand, a jury crying in the box, the accuser’s family crying in the pews. It can be very difficult to appeal to the critical thinkers in the room, who decide crucial issues with logic and reason, rather than just “feel sorry” for someone in an unreflective, ‘swallow everything they say as truth’ manner. Some juries don’t understand the burden of proof, the standard of proof, the rules of evidence, courtroom procedure, or jury instructions – they think that a trial is nothing more than figuring out who wears the white hat and who wears the black one. If it’s a tie, you lose.

III.  The third thing you need about rape is that no physical injury is required. If an injury occurred, then the charge would be aggravated rape, so the fact that no physical injury occurred doesn’t help reduce it from rape.

IV.  The fourth thing you need to know about rape is that the “force” element in the statute is nothing more than the force sufficient to accomplish the act, such as holding a person down beforehand. State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994). The victim doesn’t have to be hog-tied for force to exist.

V.  The fifth thing you need to know about rape is that you don’t have to “finish” the sex act for rape to have occurred. If a person inserted any part of himself (or herself), or even a foreign object such as a finger, stick, bottle, etc., into another person (oral, anal, vaginal) without consent, then a rape has occurred. Prosecutors are fond of saying “penetration, however slight” to remind jurors that any insertion whatsoever is sufficient.

VI.  The sixth thing you need to know about rape is that consent can be withdrawn as easily as it is given. There is no “irrevocable consent,” so even if a person is initially very excited about having sex and gets you worked up, but then later says “Stop,” and the person does not stop, then a rape has occurred. (Obviously, this just applies to rape in general, and not to acts with children).

Consent also cannot be given by a person who is completely passed out, suffering from a mental defect like dementia, or under age (but see Statutory Rape on that one).

VII.  The seventh thing you need to know about rape is that it can be accomplished by coercion rather than force.

In a 1994 case, a defendant was convicted for rape and sexual battery because he threatened to tell people that one of his victims was a homosexual if he did not participate. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), Tenn. Code Ann. § 39-13-503.

VIII.  The eighth thing you need to know about rape is that it is a completely separate offense from statutory rape – rape is about force or coercion, while statutory rape is about age.

Two recent court decisions distinguished the two in this way: “[s]ince the offense of statutory rape includes an age element whereas the offense of rape does not, and the offense of rape includes the element of force whereas the offense of statutory rape does not, statutory rape was not a lesser included offense in a prosecution for rape by force or coercion. State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995). See also State v. Stokes, 24 S.W.3d 303, 2000 Tenn. LEXIS 382 (Tenn. 2000).

IX.  The ninth thing you need to know about rape is that sexual battery cannot be a lesser included offense of attempted rape, because sexual battery requires proof that the sexual contact be “for the purpose of sexual gratification,” which is not required for attempted rape. State v. Bowles, 52 S.W.3d 69, 2001 Tenn. LEXIS 586 (Tenn. 2001), review or rehearing denied, State v. Curry, — S.W.3d –, 2001 Tenn. LEXIS 788 (Tenn. Nov. 5, 2001).

X.  The tenth thing you need to know about rape is that a person can receive convictions for both rape and incest arising out of the same act, and this does not violate due process under the Tennessee or United States Constitutions because neither offense was “essentially incidental” to the other. State v. Beauregard, 32 S.W.3d 681, 2000 Tenn. LEXIS 662 (Tenn. 2000).

What facts can make the charge more serious?

Rape of a child: If the victim is more than three (3) years of age but less than thirteen years of age. Rape of a child is a Class A felony, but the statute for this offense specifically states that a person convicted of a violation of this section shall be punished as a Range II offender (15 to 25 years) or may, if appropriate, be within Range III (25 to 40 years). A person convicted of rape of a child can also never be released from community supervision and may be monitored by GSP for the rest of his or her life. Tenn. Code Ann. §§ 39-13-522; 40-39-302.

Aggravated rape of a child: If the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is three (3) years of age or less. A person convicted of this offense shall be punished as a Range III offender (25 to 40 years). Tenn. Code Ann. § 39-13-531.

Could this charge put me on the Sex Offender Registry?

Rape of a child and Aggravated Rape of a child will all place a criminal defendant onto the Sex Offender Registry as a Violent Sexual Offender. Tenn. Code Ann. § 40-39-202.

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.

Rape of a child and Aggravated Rape of a child are ineligible for diversion.

What defenses are unavailable?

The most obvious defense is that the alleged offense never happened.

There is also a potential defense regarding the elements above, i.e., was forced or coercion used, or did penetration occur.

With Rape of a child and Aggravated Rape of a child, the issue is often whether the child understands the difference between a truth and a lie, whether other individuals are using the child as a pawn in a bitter custody or divorce dispute, whether the child is trying to ‘please’ the person asking the questions because the child does not fully understand the investigation process, or whether the child’s memory has been “tainted” by repeated exposure to police or social worker questioning, to the point where the child is now remembering suggestions that were placed in his or her head, rather than from actual memory.

Could law enforcement seize my house or car over this?

Yes. If a criminal defendant was found to have used his or her house or any personal property in the commission of a sex offense 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.