WASHINGTON — As women have come forward to say that Donald J. Trump groped them without their consent in places like New York and Florida, the claims have raised interest in the legal rules about such contact.
How does criminal law treat groping?
Laws governing sex crimes against adult victims vary by state, but they tend to break down into three categories: penetration crimes, exposure crimes and indecent contact crimes. The last — groping someone’s intimate parts without consent — are generally misdemeanors.
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New York’s penal code includes the misdemeanor offense of “forcible touching,” in which a defendant is guilty if he or she “forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” In Florida, intentionally touching another person against his or her will without penetration is a misdemeanor battery for a first offense, although a repeat offender could be charged with a felony.
Gabriel Chin, a criminal law professor at the University of California, Davis, says context is critical because a defendant could argue that he or she made a reasonable mistake in thinking the other person wanted to be touched. For example, it would be harder to win a conviction involving groping said to occur on a date than it would if it happened at work, he said.
What kind of punishment can stem from a groping conviction?
In New York, “forcible touching” is a Class A misdemeanor, meaning it carries a sentence of up to a year of incarceration or three years of probation, and a $1,000 fine. In Florida, battery is a first-degree misdemeanor, which carries a sentence of up to a year in jail, and a $1,000 fine.
How often are people prosecuted on accusations of groping adults?
Rarely, although reliable data is scarce. Jennifer Long, a former assistant district attorney in Pennsylvania who is now the executive director of AEquitas, a technical assistance organization for sexual violence prosecutors, said it was hard to know because few adult victims of groping report that crime “unless it is a complete stranger on the street.” She said even fewer such allegations get through the system to a prosecution.
Even when a contact crime is charged, it is not always because of groping alone. Ms. Long said that when she was a prosecutor, defendants were sometimes charged with contact crimes for violent attacks when there was not sufficient evidence of penetration, or to back up rape charges. “It’s very hard to generalize, but I would sense that these cases are probably not prosecuted frequently,” she said.
Is there a legal difference between sexual assault and rape?
The Justice Department’s Bureau of Justice Statistics distinguishes between rape, defined as forced sexual intercourse of various types, and sexual assault, which refers to other types of victimization separate from rape and which “may or may not involve force,” ranging from “unwanted sexual contact” and “grabbing or fondling” to mere “verbal threats.” Further complicating matters, states do not use a common set of terms and standards for what constitutes a rape versus other types of sexual battery. In short, while common everyday parlance, these terms do not have a fixed and precise legal meaning.
Can people file lawsuits against suspected perpetrators, even if there are no criminal charges?
Yes. Generally, a defendant is liable for battery if he or she intentionally acted in a way that caused offensive contact without the plaintiff’s consent, said Ellen M. Bublick, a University of Arizona law professor who has written about lawsuits filed by sexual assault victims. That could include “contact that would be offensive to an ordinary sense of personal dignity such as an unwanted kiss” bestowed without consent, she said.
How often do lawsuits like this arise?
Rarely. While data about sexual misconduct lawsuits is scarce, specialists said the overwhelming majority arise when there is a third party that has the financial wherewithal to pay a judgment — like a nursing home or an employer. Most of those accused do not have the means to pay a judgment large enough to make it worthwhile for a plaintiff’s lawyer to pursue a sexual battery case arising outside a workplace, said Nancy Sheehan, a partner at Porter Scott who has defended employers against sexual harassment claims since the 1980s.
“You don’t hear as much about verdicts in assault and battery cases because if the evidence supports the plaintiff’s claim and the defendant has financial means, in all likelihood the case will be settled and most of those cases will have a confidential settlement agreement,” she said.
If there is a groping lawsuit and the plaintiff prevails, what kind of damages could a defendant be required to pay?
Ms. Sheehan estimated that damages “could go anywhere from a low of $10,000 to close to six figures or more if a jury is inflamed.” Punitive damages — those designed to punish rather than compensate — could add much more to a judgment if a defendant has a high net worth. But in practice, she said, as society has become coarser about sexual matters, it has become harder to offend a jury.
“I’ve seen a definite shift in what facts out there are needed to grab a jury’s attention, because it has to have shock value,” she said. “We’ve become an overly sexualized society, and in most cases, a grope doesn’t grab anyone’s attention anymore — unless you happen to be a famous presidential candidate.”
Could Mr. Trump face legal jeopardy over the groping allegations that have emerged, and that he denies?
No, because the statute of limitations has expired. In New York, the statute of limitations for a misdemeanor prosecution is two years from the act, and one year for filing a lawsuit. In Florida, it is two years for a misdemeanor prosecution and four years for a lawsuit. “None of the conduct I’ve heard about would seem to still be actionable under civil or criminal law,’’ said Tamara Rice Lave, a former public defender who now teaches at the University of Miami law school, “which means the alleged victims can’t recover anything directly from Trump.”