What enhancement factors are likely to be applied to a sex offense?

Enhancement factors can be used to lengthen a defendant’s sentence beyond the presumptive minimum sentence in the range. Judges routinely apply these enhancement factors to tack more time onto a defendant’s sentence when convicted for a sex offense. It is important for a defendant to understand that when charged with a sex offense, he or she is very likely to receive a longer sentence.

These factors are used to lengthen the number of years in the range. For example, if you were sentenced to a B Felony as a Range I offender, you would be in a sentence range of eight to twelve years. The factors below would be used to argue that a nine, ten, eleven, or twelve year sentence is appropriate rather than an eight year sentence. Note: This is a separate issue from heightened sentencing based on the offense, which is about the percentage that must be served before release eligibility.

I have submitted fifteen-page briefs as to why many of these factors do not apply (or why mitigating factors also apply), while the prosecution has simply checked several boxes on a one-page form, but the enhancement factors were still applied – these factors are rarely a result of zealous advocacy from your attorney, but instead are completely up to the judge’s discretion based on the evidence submitted at trial.

There is no exact formula for how they should be applied – the judge could find that one enhancement factor applies, and give you the maximum sentence in the range. The judge could also find that several mitigating factors apply, but give them less weight than the enhancement factors. Also, the judge’s decision will not be disturbed on appeal.

I have placed the enhancement factors in bold type that are likely to be applied to sex offense cases.

40-35-114. Enhancement factors.

  • If appropriate for the offense and if not already an essential element of the offense, the court shall consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant’s sentence:
    • (1)  The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range;
    • (2)  The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;
    • (3)  The offense involved more than one (1) victim;
    • (4)  A victim of the offense was particularly vulnerable because of age or physical or mental disability;
    • (5)  The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;
    • (6)  The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim was particularly great;
    • (7)  The offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement;
    • (8)  The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community;
    • (9)  The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;
    • (10)  The defendant had no hesitation about committing a crime when the risk to human life was high;
    • (11)  The felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury, to another person, and the defendant has previously been convicted of a felony that resulted in death or serious bodily injury;
    • (12)  During the commission of the felony, the defendant intentionally inflicted serious bodily injury upon another person, or the actions of the defendant resulted in the death of, or serious bodily injury to, a victim or a person other than the intended victim;
    • (13)  At the time the felony was committed, one (1) of the following classifications was applicable to the defendant:
      • (A)  Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony;
      • (B)  Released on parole;
      • (C)  Released on probation;
      • (D)  On work release;
      • (E)  On community corrections;
      • (F)  On some form of judicially ordered release;
      • (G)  On any other type of release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government;
      • (H)  On escape status; or
      • (I)  Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction;
    • (14)  The defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense;
    • (15)  The defendant committed the offense on the grounds or facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private institution of learning when minors were present;
    • (16)  The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult;
    • (17)  The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone;
    • (18)  The offense was an act of terrorism or was related to an act of terrorism;
    • (19)  If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-102, the victim of the aggravated assault was a law enforcement officer, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security officer/guard, an employee of the department of correction or the department of children’s services, an emergency medical or rescue worker, emergency medical technician or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing an official duty and the defendant knew or should have known that the victim was such an officer or employee;
    • (20)  If the defendant is convicted of the offenses of rape pursuant to § 39-13-503, sexual battery pursuant to § 39-13-505 or rape of a child pursuant to § 39-13-522, the defendant caused the victim to be mentally incapacitated or physically helpless by use of a controlled substance or controlled substance analogue;
    • (21)  If the defendant is convicted of the offenses of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, rape of a child pursuant to § 39-13-522 or statutory rape pursuant to § 39-13-506, the defendant knew or should have known that, at the time of the offense, the defendant was HIV positive;
    • (22)
      • (A)  If the defendant is convicted of the offenses of aggravated arson pursuant to § 39-14-302 or vandalism pursuant to § 39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the defendant knew or should have known that it was a place of worship;
      • (B)  As used in subdivision (22)(A), “place of worship” means any structure that is:
        • (i)  Approved, or qualified to be approved, by the state board of equalization for property tax exemption pursuant to § 67-5-212, based on ownership and use of the structure by a religious institution; and
        • (ii)  Utilized on a regular basis by a religious institution as the site of congregational services, rites or activities communally undertaken for the purpose of worship;
    • (23)  The defendant is an adult and sells to or gives or exchanges a controlled substance, controlled substance analogue or other illegal drug with a minor; and
    • (24)  The offense involved the theft of property and, as a result of the manner in which the offense was committed, the victim suffered significant damage to other property belonging to the victim or for which the victim was responsible.