Gross Sexual Imposition in Ohio

What is Gross Sexual Imposition?

Gross Sexual Imposition is when a person engages in sexual contact* with another person, who is not his or her spouse, under any of the following conditions:

Force. If a person is purposely compelled to submit to the contact by force or threat of force. What constitutes “force” or “threat of force” is often a critical issue in these cases. In some cases the amount of force required is far less than one might suspect.
Under 13 Years Old. Sexual contact with anyone less than 13 years old is Gross Sexual Imposition. The law states that no one under the age of 13 can consent to sexual activity, and therefore, sexual contact of any kind with someone under the age of 13 is strictly prohibited.
Drugs or Alcohol. When, in order to prevent resistance, a person substantially impairs another’s judgment or control by administering drugs or alcohol by force or surreptitiously. This is not a situation of voluntary intoxication. This is when a person is intentionally drugged by another in order to make them unable to resist.
Impaired Mental or Physical Condition. Sexual contact with another when the other person’s ability to consent or resist is impaired because of a mental or physical condition. The most common physical condition is voluntary intoxication. If a person is so intoxicated or impaired that he or she cannot consent or is unable to resist, sexual contact is prohibited. It does not matter how or why the person became intoxicated. If a person is mentally impaired they cannot consent, and if a physical condition (for example, paralysis) makes a person unable to resist, that too is strictly prohibited.
Medical or Dental. If a person’s judgment or control is impaired because they have willingly been given a drug or anesthetic for purposes of a medical or dental surgery, examination, or treatment. For example: a person is sexually assaulted while under anesthesia for a dental procedure.

* “Sexual contact” means any touching of an erogenous zone of another, including without limitation to the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

What are the Penalties for Gross Sexual Imposition?

Generally, Gross Sexual Imposition is a 4th Degree Felony and carries a penalty of 6 to 18 months in prison and a possible fine of $5,000. In addition to possible prison time and a fine, anyone convicted of Gross Sexual Imposition will be required to register as a Tier I sex offender for at least 15 years.

If the victim is less than 13 years old, or alcohol or drugs were used to facilitate the commission of the crime, then Gross Sexual Imposition is a 3rd Degree Felony. The penalty upon conviction is 1 to 5 years in prison, and the sex offender registration requirement is increased to a Tier II, which requires registering as a sex offender for 25 years.

Common Defenses to Gross Sexual Imposition

Because there are so many different forms of Gross Sexual Imposition, the defenses vary depending upon the type of Gross Sexual Imposition alleged. Below I address some of the more common defenses.

Consent. If the sexual activity is voluntary and both parties are over the age of 16 then, in most cases, there is no crime. Consent eliminates the compulsion aspect of the “Force” type of Gross Sexual Imposition. That is, you cannot force someone to do something they voluntarily wish to do of their own free will. However, the law specifically states that the alleged victim of the offense does not need to prove physical resistance.
Level of intoxication. Alcohol tends to loosen people’s inhibitions and as a result it has played a role in human sexuality for years. It is not illegal to consume alcohol and engage in sexual activity. The issue is, whether or not one of the participants is too intoxicated to voluntarily consent to the sexual activity. This is a subjective defense.
No Sexual Activity. As is the case with most crimes, denying that the action was undertaken is always a defense. “I never hit him,” “I did not steal the money,” “I never touched her.” These have always been defenses to crimes.

Defending an accusation of Gross Sexual Imposition can be complex and, as a result, requires an experienced criminal defense attorney.

What Should I Do If I Am Charged with Gross Sexual Imposition?

If you have been charged, or think that you may be charged, with Gross Sexual Imposition follow these steps:

DO NOT provide a statement to law enforcement;
DO NOT communicate with anyone else (via talking, texting, social media, etc.) about what happened;
If you have already talked, STOP TALKING;
CONTACT an experienced criminal defense attorney; and
Plead NOT GUILTY at arraignment.

For Reference:

Gross Sexual Imposition Ohio Revised Code Section §2907.05

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.(2) For the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.(3) The offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person’s consent for the purpose of any kind of medical or dental examination, treatment, or surgery.(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.(5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.

(B) No person shall knowingly touch the genitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touching is done with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(C) Whoever violates this section is guilty of gross sexual imposition.

(1) Except as otherwise provided in this section, gross sexual imposition committed in violation of division (A)(1), (2), (3), or (5) of this section is a felony of the fourth degree. If the offender under division (A)(2) of this section substantially impairs the judgment or control of the other person or one of the other persons by administering any controlled substance, as defined in section 3719.01 of the Revised Code, to the person surreptitiously or by force, threat of force, or deception, gross sexual imposition committed in violation of division (A)(2) of this section is a felony of the third degree.(2) Gross sexual imposition committed in violation of division (A)(4) or (B) of this section is a felony of the third degree. Except as otherwise provided in this division, for gross sexual imposition committed in violation of division (A)(4) or (B) of this section there is a presumption that a prison term shall be imposed for the offense. The court shall impose on an offender convicted of gross sexual imposition in violation of division (A)(4) or (B) of this section a mandatory prison term, as described in division (C)(3) of this section, for a felony of the third degree if either of the following applies:

(a) Evidence other than the testimony of the victim was admitted in the case corroborating the violation;(b) The offender previously was convicted of or pleaded guilty to a violation of this section, rape, the former offense of felonious sexual penetration, or sexual battery, and the victim of the previous offense was less than thirteen years of age.(3) A mandatory prison term required under division (C)(2) of this section shall be a definite term from the range of prison terms provided in division (A)(3)(a) of section 2929.14 of the Revised Code for a felony of the third degree.

(D) A victim need not prove physical resistance to the offender in prosecutions under this section.