Written by attorney Steven Fisher Fairlie

Pennsylvania Sex Crimes

UNDER WHAT CIRCUMSTANCES MAY SEXUAL ACTIVITY BE A CRIME? Sexual activity may be a crime when any of three issues arise: lack of consent, statutory age, or regulatory preclusion. Consent may be lacking when any of the following circumstances exist: force, threat of force, a party being unconscious or unaware, the administration of drugs or foreign substances to impair a party's ability to exercise control, or when a party is incapable of providing consent, such as when suffering from a mental disability. There are statutes which set forth specific age criteria for certain sexual actions. When a party is underage, sexual activity is still a chargeable offense, even if performed consensually. There are also certain classifications of that make sexual activity a crime even among consenting adults. These are prostitution, incest, bestiality, and loosely related, bigamy and polygamy.

WHICH PHYSICAL ACTIONS ARE ADDRESSED AS SEX CRIMES? There are various classifications of physical sexual activity, all with specific legal definitions. Sexual intercourse is vaginal, oral or anal sex The key legal terminology is penetration, however slight. Deviate sexual intercourse includes oral and anal sex between human beings, any form of sexual intercourse with an animal, and the penetration, however slight, of the genitals or anus of another person with a foreign object without a good faith medical, hygienic, or law enforcement reason. Indecent contact is the touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire in either person. This would include the touching of the breasts or butt when performed with the requisite intent.

WHAT IS THE AGE OF CONSENT IN PENNSYLVANIA? The answer depends on the crime that may apply, but eighteen is the safe cut-off.

WHAT IF THE ACTOR DIDN'T KNOW THE OTHER ACTOR WAS TOO YOUNG? There is such a defense called Mistake as to Age where the actor must prove by a preponderance of the evidence (more likely than not) that he/she reasonably believed the other party to be old enough. However, this defense is only available if the age the criminality of the conduct depends upon is fourteen years or older. There is no mistake of age defense available to the production of child pornography.

ARE THERE MANDATORY SENTENCES APPLICABLE TO SEXUALLY BASED OFFENSES? Yes, there are. Upon conviction, if the District Attorney files for a mandatory sentence, the sentencing court has no discretion but to impose it.

WHAT IS SEXTING? Sexting coins the modern phenomena of sending sexually explicit images via electronic media - most commonly referring to minors engaging in such activities through cell phone texting. Technically speaking, laws dealing with child pornography may attach to such conduct if the subject of the image is under the age of eighteen, regardless of the consensual nature of the act, another minor being the intended recipient, or even the possibility of the subject photographing and sending images of him/herself. Child pornography is a Megan Law offense, and there are instances of law enforcement officials exercising their charging discretion in response to acts of juvenile sexting.

WHAT EXACTLY IS MEGAN'S LAW? Megan's Law in Pennsylvania is a series of legislative measures designed to enable law enforcement agencies to identify and track certain categories of sex offenders, and provide a standardized mechanism for the members of the public to be notified of their criminal background and whereabouts in their communities. Collectively referred to as Megan's Law, these laws (Pennsylvania Consolidated Statutes, Title 42, Chapter 97, Subchapter H, cited at 42 Pa.C.S. § 9791 et seq.) were formed largely in response to high-profile crimes and the passing of similar federal laws which required states to follow suit. A federal law called the Adam Walsh Act was passed in 2006, and calls for states to adopt laws that substantially comply with the federal version. The law calls for a three-tiered categorization of sex offender registration requirements, based on the nature of the offense and whether the individual is a repeat offender. The goal of the law is to achieve greater uniformity regarding registration requirements across the states. However, great controversy surrounds the issue. Certain aspects of the measure would enhance reporting requirements compared to the current laws in Pennsylvania. As of this point, Pennsylvania legislation is pending, and foreseeable in the near future. It should be noted that there is a fair possibility that if Pennsylvania adopted a close version of the federal Adam Walsh Act, it would apply to sex offenders who may have been convicted even prior to its passing.

WHOM DOES MEGAN'S LAW APPLY TO? Megan's Law requires that individuals who are convicted of certain enumerated crimes register with the Pennsylvania State Police for a period of ten years or for their lifetime, depending on the crime. Ten year registrants are those convicted of the following offenses or falling in the following categories:Kidnapping, where the victim is a minor (18 Pa. C.S. 2901) Luring a Child into a Motor Vehicle or Structure (18 Pa. C.S. 2910) Institutional Sexual Assault (18 Pa. C.S. 3124.2) Indecent Assault where the offense is graded as a misdemeanor of the first degree or higher (18 Pa. C.S. 3126) Incest, where the victim is 12 years of age or older but under 18 years of age (18 Pa. C.S. 4302) Prostitution and related offenses, where the actor promotes the prostitution of a minor (18 Pa. C.S. 5902[b]) Obscene and other sexual materials and performances, where the victim is a minor (18 Pa. C.S. 5903[a] [3], [4], [5], or [6]) Sexual abuse of children (18 Pa. C.S. 6312) Unlawful contact with minor (18 Pa. C.S. 6318) Sexual exploitation of children (18 Pa. C.S. 6320) An attempt to commit any of the offenses under 10-year registration or lifetime registration; Criminal Solicitation or Criminal Conspiracy of any of the offenses under 10-year registration or lifetime registration ;Individuals convicted in another state of an equivalent offense listed under the 10-year registration, and who now reside, work or go to school in Pennsylvania. Such individuals are subject to a period of registration of ten years, or their original state's requirement, whichever is greater. Individuals paroled after the effective date of the statute for any of the offenses under the 10-year registration Individuals convicted under a former law of Pennsylvania which is similar to a current law which requires registration for ten years. The ten year registration period is extended by any period of time that individual spends incarcerated during those ten years.

WHAT DOES IT MEAN TO BE DESIGNATED AS A SEXUALLY VIOLENT PREDATOR (SVP)? Anyone convicted of a Megan's Law offense must undergo an assessment by the Sexual Offenders Assessment Board. Such an assessment considers a number of factors such as the facts of the triggering offense, the individual's criminal history, and the individual's personal characteristics. Depending on the outcome of the assessment, the District Attorney may pursue such a classification by requesting a hearing, where it must be proven to a judge by clear and convincing evidence that due to a mental abnormality or personality disorder, the individual is likely to engage in predatory sexually violent offenses. Besides having to register for life, individuals designated an SVP, are subject to community and victim notification requirements. In such cases, the police are required to provide the individual's name, address, photograph, offense information, and SVP designation to victims of the individual and to neighbors and school officials near the individual's residence.

WHAT HAPPENS IF AN INDIVIDUAL DOES NOT COMPLY WITH MEGAN'S LAW REQUIREMENTS? Failure to comply can be the basis for a separate offense, with various gradations of felonies, depending on the registration category an individual is in and on whether the individual has been previously convicted of such an offense.

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