In the District of Columbia, a common albeit less serious sexual offense is a crime called Misdemeanor Sexual Abuse (or “MSA”). Like most misdemeanors in the District, the charge is not jury demandable. That means a judge, not a jury, will decide guilt or innocence if an individual is charged with MSA. These cases can be difficult for all parties involved because they typically involve serious allegations, are sexual in nature, and have the potential to cause a great deal of trauma for an individual victim of the abuse and for any individual falsely accused.
What are the Elements of Misdemeanor Sexual Abuse?
The D.C. Code defines Misdemeanor Sexual Abuse as engaging in a sexual act or sexual contact with another individual. The law requires that the defendant should have knowledge or reason to know that it was done without the other person’s permission. The maximum penalty for the offense is 180 days and/or a $1,000.00 fine. Accordingly, like most misdemeanors in D.C., it is not jury demandable. That means a judge decides both whether the defendant is guilty or not guilty and sentences the defendant if she finds the defendant guilty.
The Code defines a sexual contact under D.C. Code §22-3001(9) as “the touching with any clothed or unclothed body part or any object, either directly or indirectly through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” This could involve two strangers like an individual grabbing or groping another on the metro or at a bar. It could also involve individuals who know each other where one person touches another without consent.
What is the Difference Between Misdemeanor Sexual Abuse and Misdmeanor Sexual Assault?
The crime of MSA should not be confused with a non-violent sexual touching assault, which is a lesser included offense of MSA. The elements of a non-violent sexual touching includes (1) a sexual touching; (2) done voluntarily, on purpose and not by mistake or accident; and (3) without the other person’s consent. The major difference between the two offenses is the added element that the government must prove that the defendant’s intent was to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” Non-violent sexual touching is a general intent crime, which means the defendant only needed to intend to do the touching whereas MSA requires a specific intent.
Although the two offenses are similar, the government’s burden is slightly higher with misdemeanor sexual assault. And in practice the government may charge both offenses or may just charge one depending on the facts. In addition, if the government only charges the defendant with MSA, it can still ask the judge to consider the lesser offense.
Consider two scenarios that illustrate the difference. Defendant one is at a party and randomly slaps a female party goer on the butt. Without more, it may be difficult for the government to prove the specific intent required for an MSA conviction. Although the touching may in itself be enough to convict for a non-violent sexual assault touching. All the government has to prove for that is the defendant intended to do the touching and it was not a mistake or accident. It does not have the burden to prove it was even intended to be sexual in nature.
Consider another scenario where the defendant is on a date and goes home with the complainant. The defendant makes a number of sexualized statements while grabbing her breasts. The complainant tries to stop the defendant while stating no repeatedly and the defendant continues to grab and persist. Here, the government would have a much stronger case to prove the added specific intent required for MSA.
What are Some Defenses to Misdemeanor Sexual Abuse in the District of Columbia?
Several defenses exist to the charge of misdemeanor sexual abuse. These defenses typically include misidentification, mistake or accident, and consent. For a misidentification defense, it is usually necessary for the incident to involve strangers. Usually, for police to obtain a warrant for an MSA case, the complaining witness must identify the person. An investigation will usually start with the complainant filing a police report. If the complainant does not know who the suspect is, they will provide the detective with whatever information they have. The detective will further investigate and if they develop a prime suspect, they will present the complainant with a photo array. If the complainant can confidently identify the person out of the photos, then the detective will usually get a warrant. The defense of misidentification usually involves challenging the identification procedures or arguing that the complainant mistakenly chose the wrong individual.
For a mistake or accident defense, whether the parties know each other tends to be irrelevant. An obvious example of a mistake or accident could involve something like a crowded metro car. Many people enter the car and bodies get jammed together and one individual inadvertently makes contact with another’s private parts. The person on the receiving end of the touch could misinterpret the facts and circumstances of the incident and believe it was done intentionally. This “mistake” could lead to an arrest and charges getting filed.
For the defense of consent, it will typically but not always involve parties who know each other. This defense requires the defense to make the argument that the complainant consented to the touch and for some nefarious reason fabricated the allegation. This defense can be one of the most difficult because it essentially requires the defense to accuse the complainant of being a liar. This can be a very difficult needle to thread even for a skilled criminal defense attorney.
The consequences of being convicted for misdemeanor sexual abuse in the District of Columbia can be severe. They can include jail time, probation, including in some instances court ordered sex offender treatment. They can also include serious reputational consequences. If you or someone you know has been accused of an assault offense, contact us today for a full case evaluation.