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For a Sexual Assault Charge does "Sexual Intent" need to be proven?

New York, NY |

I have been told a very strange thing by the lawyer assigned to represent my children. My 5 year old son was attacked by a special needs child of a friend of my ex-wifes. By technical specifications this was 3rd degree sexual assault. The lawyer for my children who should be protecting their interests has said that one needs to prove "sexual intent" on the part of the perpetrator. If the act that was committed was sexual in nature, but the special needs 8 year old child does not understand what he was doing, how could there be an onus on the victim to prove "Sexual Intent" .

Attorney Answers 5


  1. "Crimes" are not strict liability events. This means the defendant doesn't get railroaded simply because a bad act took place. In our "crime" world, traditionally, there also had to be proven beyond a reasonable doubt the mental intent to commit the crime.

    Your lawyer is telling you the child did not or could not form the mental intent to commit the crime. So no crime took place. Indeed not every indescency is a crime.

    Good luck.


  2. Yes they must approve intent to commit sexual assault. The scenario does not sound like a crime at all, because it is doubtful that a child at that age could form intent.


  3. Intent is necessary. Sex crimes are not strict liablity.


  4. I agree with my Avvo colleagues. You should talk and discuss the issues in this case with your attorney. Understanding how the law applies to a specific situation is seldom easy. Communicating how the law works us one of the tasks of lawyers. Some of us pride ourselves the explanation to our clients.

    Of course, every answer is based on the question asked and requires a complete context. This answer should NOT be relied upon to make any legal decisions. Seek the advice of an experienced criminal defense attorney in YOUR JURISDICTION -BEFORE you do or say anything. Law Offices of Raymond G. Wigell, Ltd. Admitted in Illinois and Federal District Courts in Illinois(Northern, Central and Southern Districts) and Indiana(Northern District), Defenders of the Constitution since 1975; Aggressive Creative Defense Strategies. Website: www.waaltd.com Email: rwigell@waaltd.com Available - 24/7 Office (708)481-4800 Cell. (708)218-0923


  5. Almost all crimes need specific intent to commit the criminal act, not just the physical act. I bump into you accidentally, you fall and break your wrist, there is no criminal intent. If I purposely bump into you or push you, and you fall and break your wrist, it is a crime, because of my specific intent to harm you. Typically, a child under 6 years of age is by law considered incapable of forming criminal intent (it varies with jurisdiction). An 8 year old, depending upon what "special needs" means in terms of his mental abilities, may similarly be unable to form criminal intent. Many laypeople confuse the physical act with the criminal act. One is part of the other, but not the other way around.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

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