Criminal law-sexual assault.
In criminal law, an offence against a person is referred to the physical harm or force being applied to another person against their will. Crimes against a person can be categorised in three broad categories fatal offences, sexual offences non- fatal non- sexual offences (Braham, 2004).
Sexual assault or battery refers to the unwanted contact or touching of a person’s intimate parts against their will or consent. In the state of California, the penal code defines intimate parts as, sexual organs, breasts or groin of a female. The legal definition of sexual assault in California is an act of penile or vaginal intercourse with a person who’s not the spouse and without the agreement of the person to the act. Several laws have been developed in the past and presently to deal with sexual offenders and violation of a person’s rights and privacy.
Common laws are referred to the laws that govern a state but are dependent on the states or communities moral view about that issue or moral concept behind it (Holmes, 2009). Historically the degree of punishment depended on three factors, the social status of the victim and the offender, the place where the act occurred and the level of consent or resistance of the victim. In common law a one of the characteristics is that the bible applies too and the Ten Commandments are reflected in the laws. For example, if a person forced a virgin to lie with him, he was forced to pay money to the girl’s father and was forced to marry her.
According to the common laws, only women could be victims of rape; women were considered to be the only victims of rape. It was also considered that only men could commit the crime. Under the common law a husband could not rape his wife but would be charged with battery and assault. Rape was viewed as one degree and rarely referred to more than one category. Rape was defined as the penetration of the penis into a female’s vagina by force or against the will of the woman or girl.
Common law rape and sexual assault did not involve the crime of offensive touching but it would be categorised as disorderly conduct. Resistance by the victim was considered to be a major contributing factor in the formulation of a case against sexual assault. Rape was defined as an offence against sexual morality. This crime against humanity was punishable by death in the past; no other form of punishment was available once this crime was committed.
Statutory law is written law, formulated by the legislature or by a legislator. They are laws that are present in the constitution of a nation and are recognised as the states laws. Often than not statute laws are an improvement or and advancement of the common laws. As they are formulated the common laws are put in consideration. Based on sexual assault several law statutes have been formulated
According to these laws, both women and men can be victims of rape cases. The law also states that both men and women can commit the crime, as seen in the case of the state versus Stevens in which the court held a woman could be charged with having sexual intercourse with a 13 year old. A husband can be held accountable for the raping of his wife and also battery.
In the statute laws too, rape cases are divided into several categories; the second degree known as “Ordinary” which is the most common while there is “aggravated” which is considered as the first degree, it involves gang rape cases and use of deadly weapons that may harm or lead to the death of the victim. In the statute laws, sexual intercourse is viewed to be more than penetration; oral sex or the inserting of objects inside the genitals against the will of either male or female, it is termed as assault. The statute law or the modern law, many sexual offences also are inclusive of touching of the intimate parts of another in intimate way against their will is also seen as sexual offence.
Unlike in the past, the utmost resistance policy was scraped off; the court only requires evidence that the act actually took place and it occurred against the will or consent of the victim, is enough evidence to hold the defendant guilty. Sexual assault is mostly considered and classified as the crime against a person.
California statute laws declare that anyone who commits the offence of forcing themselves onto someone, violently leading to the physical and mental injury of the victim shall be punished by imprisonment in the state prison for three to eight years. For anyone who sexually abuses a child below the age of fourteen, they face an imprisonment of eight to twelve years in prison (Singer,2010). Statutory law protects the rights of all it does not discriminate any gender or age all are one.
The comparison between the common laws and the statutory law shows disparity between the two but again there are common factors that are still maintained in both forms of law. In common law males are usually left out and it implies that only female gender is the only group greatly affected. The law neglected the right of male gender. While the statute laws on the other hand stood and represented both parties hence there was no discrimination. In statute law, many details are covered and no generalizing of factors such as all forms of rape are the same, it also includes cases such as touching and other forms of sex. Common laws on the other hand ruled out some forms of sexual violation and also generalized abuse to be all of the same degree.
Laws with regards to common laws, punishments were sometimes unjust or did not match up to the offence done. Most sexual abuse offenders regardless of what they did faced severe punishment such as death but in accordance to the statute laws the defendant if found guilty is usually sentenced to imprisonment for a certain period of time and is usually dependent on degree of the crime committed. As the years have progressed the laws have developed to be more efficient and non-discriminatory. But both forms of law bear few similarities, they both fight for the justice and protection of human rights against sexual abuse and assault. They both view sexual abuse as crime against humans.
To reduce the rate of discrimination yet the boy child require to be heard to. The common law was found to be shortcoming since it neglected certain vital aspects, like the girl child the male child to needs the law to protect them and their rights too.
Previous common laws omitted several aspects that too needed attention, for example, touching someone intimately or in a suggestive way which is against their will too should be considered as a sexual offence. Hence the law had to be revised so as to add some few elements that were needed to fully implement justice.
Common laws were found to be incompetent in some areas such as when it came to a husband and a wife. Sexual harassment by a husband to the wife too needed attention hence the development of law that also found husbands guilty of raping their wives. This protected women from suffering in silence. The government has also set up laws that allow the investigation of child exploitation crimes and law enforcement personnel to ensure that it is not happening (Donohue, 1992).
New additions to the laws too would be appropriate to aid in the protection of child and victims of sexual assault. Few changes should be made on the current statute laws such as in cases of unwanted pregnancies that result from rape cases; the offender should provide and contribute through the development of the child even though they will not be there presently. This would help victims able to raise the children. The offender should receive a hefty fine on top of the jail sentence so as to discourage them from repeating the act again. Cases of sodomy and other sexual assault to the boy child should be listened to end given priority just as those of the girl child is since often their voice goes unheard. The government should also include laws that protect the street children and homeless who sometimes become victims of sexual assault since they lack people to take care of them and evil doers tend to take advantage of this. Laws that govern and provide justice to the helpless should be developed too.
Sexual abuse especially to the weak group in the society has to be stopped and protection of human rights is required.
Donohue, W. T., & Geer, J. (1992). The Sexual abuse of children. Hillsdale, N.J.: L. Erlbaum.
Singer, R. G., & Fond, J. Q. (2010).Criminal law: examples and explanations(5th ed.). New York: Aspen Publishers
Braham, P. (2004). Crimes against the state, crimes against persons: detective fiction in Cuba and Mexico. Minneapolis, Minn.: University of Minnesota Press.
Holmes, O. W. (2009). The common law. Cambridge, Mass.: Belknap Press of Harvard University Press.