Sex Education, Part One:
Let's Talk About "Sex"
Most Americans grow up with sex education being a separate unit in their Health class in 4th or 5th grade. Awkward pictures and videos are used to explain the biological and anatomical processes behind sexual intercourse. Teachers stumble through the classes amidst snickering and crude comments by their students. Taboo topics are typically avoided, and many students are left to the experience sexual intercourse in real time without much guidance.
This blog series seeks to help to Ohioans understand what the Ohio Revised Code says about sex crimes, the punishments for those crimes, and the sex offender registry. Unlike our Health class growing up, this series seeks to directly address important issues that we commonly received questions on from our clients.
Before we can address the complicated sentencing laws for sex crimes and the mandatory registry for those convicted of certain crimes. We start at the beginning: what is a "sex crime"? The obvious answer is: "a crime that involves sex." But that begs the question of "what is considered 'sex' under Ohio law?" Like many situations that involve the Ohio Revised Code and the law in general, the answer is not as simple as you might think.
"Sexual activity" is defined as "sexual conduct or sexual contact, or both.1" Out of the gate we are already diving down a rabbit hole of layered definitions.
The distinction between "sexual conduct" and "sexual contact" may not seem important at first glance. But the Ohio Revised Code has multiple laws that criminalize certain acts and have different penalties based on whether the accused is alleged to have engaged in "sexual conduct" or "sexual contact."
"Sexual conduct" is very similar to the common understanding of the broad term "sexual intercourse" or "sex" (when referring to the act and not a person's characteristics). Under Ohio law, "sexual conduct" refers to several different actions. The definition is broken down into the various sections below.
Under Ohio law, "sexual conduct"2 means:
(a) vaginal intercourse between a male and female;
(b) anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and
(c) without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.
a. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
"Sexual conduct" covers vaginal, anal, and oral sexual intercourse. However, it also covers digital penetration and penetration with other objects when consent is at issue. The last sentence is very important because it means that minimal penetration is required to satisfy the statute. Though not defined by R.C. 2907.01(A), "penetration" of the vaginal cavity is not required to be charged with crimes that include "sexual conduct." For example, Ohio appellate courts have upheld rape convictions and found that "penetration" occurred when the victim's outer labia were spread even though the evidence indicated that the victim's vaginal cavity was not penetrated.
The remainder of actions that satisfy "sexual activity" are referred to as "sexual contact." Under Ohio law, "sexual contact" means:
(a) any touching of an erogenous zone of another,
a. including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast
(b) for the purpose of sexually arousing or gratifying either person
While "erogenous zone" is not defined in R.C. 2907.01, the examples provided make it clear that the General Assembly's intent was to refer to the touching of a person's sexual or otherwise intimate areas. The areas listed in 2907.01(B) are not the only areas that can be considered an "erogenous zone." If the area in question is not listed, then the court will have to determine if contact by the accused with that body part (e.g. a foot, stomach, or neck) was for the purpose of sexual gratification or sexual arousal.
Like many other important terms in R.C. 2907.01, "sexual arousal" and "sexual gratification" are not explicitly defined. Typically, the courts will apply a common understanding of the terms when legal definitions are not supplied.
The important analysis for "sexual contact" is the mental state, or intentions, of the accused. Touching an erogenous zone is not, in itself, illegal. The law is concerned with the touching of an erogenous zone "for the purpose of sexually arousing or gratifying either person." Therefore, the prosecutor's office will have to offer evidence of what the accused intended when the victim was touched in an erogenous zone. Absent a confession by the accused, the courts have determined that touching with the intention of sexual arousal or sexual gratification can be inferred from "the type, nature, and circumstances surrounding the contact."3 In other words, the prosecutor will offer evidence of when, where, and why the contact occurred to convince a jury that sexual arousal or gratification was present in the mind of the accused when it occurred.
As you can see from just trying to define what "sexual activity" is under Ohio law, the sex crimes sections of the Revised Code are extremely complicated and, often times, very confusing. If you have questions about a sex crime, are the subject of a sex crime investigation, or have been accused of a sex crime, it is very important that you speak with a criminal defense attorney that has experience with sex crimes defense work specifically.
1 R.C. 2907.01(C)
2 R.C. 2907.01(A).
3 In re Anderson, 116 Ohio App.3d 441 (12th Dist., 1996)