Second-degree sexual assault can occur when the victim is mentally incapacitated or physically helpless, force is used, or unnecessary medical treatment is given for sexual gratification. The accused can also be charged if the victim is unable to give valid consent or if the accused fraudulently obtains consent.
The factors that define the various degrees of sexual assault vary from jurisdiction to jurisdiction. There are some common factors, however, that align the rules across jurisdictions. Second-degree sexual assault, for example, occurs in many places if certain facts are present. Factors that usually indicate second-degree sexual assault are knowledge that the sexual act was committed while the victim was mentally incapacitated or physically helpless, the defendant uses force to force the victim to engage in sexual activity, or the defendant subjects the victim to unnecessary medical treatment for the purpose of sexual gratification.
Second-degree sexual assault can occur when the defendant commits a sexual act while his victim is unable to consent to the act due to incapacity. The nature of the incapacity giving rise to the allegation may be physical or mental. For example, the defendant would be guilty of sexual assault in the second degree if he had committed sexual acts while the victim was unconscious, asleep or immobilized. Additionally, someone who engages in sexual acts with a mentally disabled person may fall into this category if that person is deemed to be so mentally disabled that they are unable to give valid consent to the sexual acts.
Another circumstance that can give rise to second-degree sexual violence is if the person who commits the sexual act uses force or coercion to obtain the consent of the victim. The amount of force required to make an accusation of second-degree sexual assault can vary from jurisdiction to jurisdiction. However, most jurisdictions will deem a minimal amount of force necessary to obtain consent by making the victim feel threatened.
A less common case of second-degree sexual assault occurs when someone uses the mask of medical treatment to obtain the victim’s consent for acts that may involve sexual gratification of the accused. For example, a doctor who subjects a patient to an unnecessary exam that may or may not involve physical contact could give rise to a second-degree sexual assault charge. The key element in establishing such an accusation is that the defendant fraudulently obtained the victim’s consent with the intention of sexually gratifying himself with the procedure.
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