Object sexual penetration is sex offense and a violation of Virginia Code § 18.2-67.2. A person is guilty of object sexual penetration if he or she “penetrates the labia majora or anus of the complaining witness” with an object or causes the victim to penetrate his or her own body with an inanimate or animate object if the victim is:
- less than 13 years of age or,
- the act was against the will of the complaining witness whether by force, threat or intimidation, or
- if the complaining witness was helpless or incapacitated due to mental incapacity.
A person may be found guilty of object sexual penetration if he or she caused another person to penetrate the complaining witness with an object or an animal. A complaining witness is a person who may have been subjected to the alleged act.
What are the penalties for object sexual penetration in Virginia?
The penalties for sexual penetration by an animate or an inanimate object are the same as those for rape in Virginia.
Penetration by an animate or inanimate object is a felony punishable by confinement in state prison for life or by a prison sentence of not less than five years. If the defendant was more than three years older than the victim at the time of the alleged act and the act was committed in the course of a violent felony, object sexual penetration is punishable by a mandatory minimum of twenty-five years confinement in prison. If the defendant as 18 years or older at the time of the alleged incident and the victim is less than 13 years old, object sexual penetration is punishable by a mandatory minimum of life in prison.
The terms of the sentence for object sexual penetration must be served consecutively with any other sentences imposed for another offense. If the sentence imposed is less than a life sentence, the court must impose a suspended sentence of not less than 40 years, to be suspended for the remainder of the defendant's life and subject to revocation by the court.
If the offense was perpetrated against a spouse, the court may suspend any or all of the sentence imposed upon completion of counseling or therapy if, in the views of the complaining witness and the court and after consideration of other relevant evidence, the court finds that imposition of a suspended sentence will promote the family unit and is in the best interest of the complaining witness. In cases involving a spouse, the defendant may be placed on probation pending the completion of counseling or therapy if he or she has not had a similar case dismissed before and if the complaining witness consents.
The court may defer the proceedings until the completion of court-ordered therapy and dismiss the case upon the completion of this requirement. If the defendant fails to complete therapy or counseling, the court may revoke probation and proceed with a final disposition of the case by sentencing the defendant to a term of years in the Virginia state correctional system with all or part of that sentence suspended.
Sex Offender Registration
A person who has been convicted of object sexual penetration is required to comply with all laws and regulations regarding sex offender registration in Virginia, including being evaluated for risk level and notifying local authorities of any change of address, employment and vehicle information
What are possible defenses if I am charged with object sexual penetration?
The prosecuting attorney must prove all elements of the offense beyond a reasonable doubt. If the prosecution cannot meet its burden of proof, the defendant must be found not guilty.
The prosecution has the burden of proving that the victim was under age 13, incapacitated or physically helpless or that the act was perpetrated without the victim's consent by force, threat, coercion or intimidation.
Age of Victim
If the prosecutor cannot demonstrate by proof that the victim was under age 13, the state cannot meet its burden of proof beyond a reasonable doubt. The prosecutor can present testimony from the victim, other witnesses and other relevant evidence regarding the age of the victim at the time of the alleged incident.
Mental Incapacity or Physical Helplessness
Mental incapacity means that at the time of the alleged offense the condition of the complaining witness prevented him or her from understanding the nature or consequences of the sexual act, and the defendant knew or should have known about the condition. The prosecution has the burden of proving the mental incapacity of the complaining witness.
Physical helplessness means unconsciousness or another condition existing at the time of the offense which rendered the complaining witness unable to communicate an unwillingness to participate in the act, and the defendant knew or should have known about the condition.
Force, Threat, or Intimidation
In cases where the complaining witness was over age 13 and was not mentally incapacitated or physically helpless, the prosecuting attorney may be able to show the offense was committed by means of force, threat or intimidation. A show of force must be enough to overcome the victim's will. A threat or intimidation means a verbal threat of bodily harm or putting the alleged victim in fear of bodily harm by a statement or action by the perpetrator. If the prosecuting attorney cannot prove that there was any force, threat, intimidation or coercion, the defendant may be found not guilty because the elements of the charge were not proven.
Consent is a defense to the charge of object sexual penetration. A defendant is not required to testify in a criminal case but is permitted to testify if he or she chooses to do so. An experienced defense attorney can help a defendant charged with a serious sexual offense decide whether or not to testify about their reasonable belief that the alleged victim consented to the act.
Mistake of Fact or Identity
In some cases, the defendant may be able to allege that the incident did not occur or that the offense was committed but was committed by some other person than the defendant. In many cases, a physical exam is performed on the victim to detect signs of injury and other evidence. Careful scrutiny of reports from the exam can yield exculpatory evidence for the defense in some cases.
It may be possible to obtain other evidence from the time of the alleged incident such as security footage, statements of other witnesses and counseling or school records of the alleged victim. If the defendant can present evidence that raises a reasonable doubt as to the identity of the perpetrator or whether the offense actually occurred, he or she may be found not guilty.
Virginia Criminal Defense Attorney Bryan J. Jones
Being charged with the sexual offense of object penetration in Virginia can have life-altering consequences. It is important for anyone who has been accused of this type of offense to speak to a criminal defense attorney right away. Bryan J. Jones is an experienced defense attorney who can advise you about your rights at every stage of the proceeding and help you defend your case. Contact us today online or at (434) 260-7899.