CHAPTER VIII: DOMESTIC VIOLENCE CRIMES

Transcription

1 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -1 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES A. Chapter Contents... 1 B. Chapter Goals... 3 C. Pennsylvania Does Not Have a Designated Domestic Violence Crime... 3 D. Crimes Against Individuals Simple Assault Aggravated Assault Recklessly Endangering Terroristic Threats Kidnapping Harassment Stalking Strangulation E. Sexual Crimes and Related Offenses Civil Relief in Sexual Assault Cases Rape Involuntary Deviate Sexual Intercourse Aggravated Indecent Assault F. Crimes Involving Property Arson Burglary Criminal Trespass Criminal Mischief Cruelty to Animals G. Crimes Against the Family Endangering Welfare of Children Interference With Custody of Children H. Defenses Raised in Domestic Violence Cases Self-Defense Voluntary Intoxication Mutual Battering Corporal Punishment... 29

2 VIII -2 I. Miscellaneous Provisions Firearms Violation Bail Criminal Protective Orders Crime Victims Act Victim Impact Statements J. Other Relevant Information Effectiveness of Criminal Justice System Response Decrease in Domestic Violence Homicides K. Emerging Practices Promoting Safety in Bail Determinations L. Emerging Practices Promoting Safety by Carefully Scrutinizing A.R.D. Requests Why Victims Sometimes Want A.R.D Why Victims May Oppose A.R.D M. Emerging Practices Promoting Safety in Sentencing Decisions Pre-Sentencing Reports Provide Valuable Context for Sentencing Decisions Restitution Aids Victim Recovery Special Conditions Protect and Rehabilitate Sentencing Recommendations Additional Penalties as Warranted N. Emerging Practices Promoting Safety Using Victim-Witness Programs O. Emerging Practices Promoting Safety by Protecting Victim Confidentiality Domestic Violence Advocate/ Counselor Confidentiality Sexual Assault Counselor Confidentiality P. Emerging Practices Promoting Justice by Recognizing Victim Rights... 44

3 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -3 B. Chapter Goals The purpose of this chapter is to provide an overview of crimes that involve domestic violence. In Pennsylvania, there is no specifically designated domestic violence crime; rather, domestic violence incidents are addressed separately under Pennsylvania s Crimes Code in categories such as crimes against individuals, sexual crimes, property crimes, crimes against the family, and miscellaneous crimes. Cases interpreting the statutes and procedural requirements are discussed, and practical tips for judges handling these issues are provided. C. Pennsylvania Does Not Have a Designated Domestic Violence Crime The Commonwealth of Pennsylvania does not have a separate crime for domestic violence. Pennsylvania s Crimes Code, however, encompasses almost every act of domestic violence, and affords trial courts the opportunity to address a broad range of domestic violence situations without diminishing the severity of the offense. D. Crimes Against Individuals 1. Simple Assault Typically, simple assault charges are filed when bodily injury is inflicted on a domestic violence victim. However, bodily injury is not a required prerequisite for filing charges in all subsections of the statute. The law penalizes a perpetrator s attempts to place victims in fear of imminent serious bodily injury, in addition to attempts to cause bodily injury. Simple assault (a) Offense defined..... A person is guilty of assault if he: 1 (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; (2) negligently causes bodily injury to another with a deadly weapon; (3) attempts by physical menace to put another in fear of imminent serious bodily injury; or (4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person. (b) Grading. Simple assault is a misdemeanor of the second degree unless committed: (1) in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree; or (2) against a child under 12 years of age by an adult 18 years of age or older, in which case it is a misdemeanor of the first degree. 2 1 (a) Offence defined. Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault PA. C.S Id.

4 VIII -4 Bodily injury is defined as the "impairment of physical condition or substantial pain." 3 a. Attempt to inflict injury sufficient Normally, to obtain a conviction for simple assault under section (a)(1), the Commonwealth is required to demonstrate beyond a reasonable doubt that defendant intentionally inflicted bodily injury upon the victim. 4 However, bodily injury need not be established if the charged offense involves an attempt. The Superior Court in Commonwealth v. Klein held that an attempt to inflict bodily injury is sufficient to support a conviction. 5 The Klein court noted, "Intent may be shown by circumstances which reasonably suggest that a defendant intended to cause bodily injury." 6 In Commonwealth v. Matthews, the defendant shoved a loaded firearm into the throat of an unsuspecting motorist and repeatedly threatened to kill him. 7 While the defendant did no actual physical harm to the victim, the Superior Court ruled that the defendant possessed the intent to inflict serious bodily injury. 8 b. Physical menace pointing a gun One of the most common forms of Pointing a gun at another assault charges filed in domestic person can constitute simple violence situations involves simple assault as an attempt by assault by physical menace under physical menace to put section (a)(3). The elements that must another in fear of imminent be proven to convict are as follows: serious bodily injury. (1) intentionally placing another in fear of imminent serious bodily injury, (2) through the use of menacing or frightening activity. 9 In Commonwealth v. Reynolds, the defendant pointed a gun at the victim. 10 The court found that the act of pointing a gun at another person can constitute simple assault as an attempt by physical menace to put another in fear of imminent serious bodily injury See 18 PA. C.S Commw. v. Torres, 766 A.2d 342 (Pa. Super. 2001). 5 Commw. v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002) (citing Commw. v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994). 6 Id.; see also Commw. v. Marti, 779 A.2d 1177 (Pa. Super. 2001); Commw. v. Polston, 616 A.2d 669 (Pa. Super. 1992). 7 Commw. v. Matthews, 870 A.2d 924 (Pa. Super. 2005). 8 Id. 9 Commw. v. Reynolds, 835 A.2d 720 (Pa. Super. 2003). 10 Id. 11 Reynolds, 835 A. 2d at 726 (citing In re Maloney, 636 A.2d 671, 674 (Pa. Super. 1994) (concluding that simple assault under section 2701(a)(3) was established where a driver pointed a gun at another driver and said, Get the f*** out of here. )).

5 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -5 c. Physical menace circumstantial evidence In Commonwealth v. Hudgens, the wielding of a sword coupled with threatening behavior constituted assault by physical menace. 12 In cases involving physical menace, a perpetrator s intent can be proven by circumstantial evidence and may be inferred from his conduct under the attendant circumstances Aggravated Assault Aggravated assault charges are normally filed in response to an increased level of physical violence or threat of violence above that which is criminalized under the simple assault statute. Aggravated assault also includes, in large measure, acts normally prohibited under simple assault, but committed against a protected class of individuals (e.g., law enforcement personnel, caseworkers, teachers) in the performance of their duties. This section will focus only on those portions of the aggravated assault statute that routinely arise in domestic violence situations. Aggravated assault (selected provisions) (a) Offense defined. A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; (b) Grading. Aggravated assault under subsection (a)(1), (2) and (9) is a felony of the first degree. Aggravated assault under subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the second degree. 14 a. Attempted aggravated assault must include intent The Superior Court decision in Commonwealth v. Gruff provides a thorough survey of the parameters of aggravated assault and the issues involved with proving its elements. 15 The court explained that, for aggravated assault purposes, an "attempt" is found where the accused, with the required specific intent, acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another. 16 The court emphasized that the attempt must be accompanied by the requisite intent. 12 Commw. v. Hudgens, 582 A.2d 1352 (Pa. Super. 1990). 13 See Commw. v. Little, 614 A.2d 1146 (Pa. Super. 1992) PA. C.S Commw. v. Gruff, 822 A.2d 773 (Pa. Super. 2003). 16 Gruff, 822 A.2d at 776 (citing Commw. v. Galindes, 786 A.2d 1004, 1009 (Pa. Super. 2001)).

6 VIII -6 b. Factors for evaluating intent Under section (a)(1) of the aggravated assault statute, the intent underlying the attempt must be to cause serious bodily injury to another. In Commonwealth v. Alexander, the Pennsylvania Supreme Court made clear that an attempt under section (a)(1) requires a showing of some act, albeit not one causing serious bodily injury, but one that is accompanied by an intent to inflict serious bodily injury. 17 Where the actual injury inflicted does not constitute serious bodily injury, the charge of aggravated assault can be supported only if the actual injury was accompanied by the intent to inflict serious bodily injury. 18 In Alexander, the defendant punched the victim once in the head and then walked away. No serious bodily injury occurred. The court concluded that the intent to cause serious bodily injury was not inherent in that act Factors in determining intent to inflict bodily injury: significant difference in size or strength use of weapon to aid or implement attack defendant s statements before, during, and after alone and listed several factors to consider in determining whether the intent to inflict serious bodily injury was present. Those factors included evidence of a significant difference in size or strength with the victim, the defendant's use of a weapon or implement to aid his attack, and his statements before, during or after the attack that might indicate his intent to inflict further injury on the victim. 19 c. Intent shown, but no injury Aggravated assault under section (a)(1) can be found merely with proof of intent without serious bodily injury. In Commonwealth v. Lopez, the defendant fired eight bullets at the front door of his girlfriend s empty residence. 20 The Court held that a prima facie case of aggravated assault could be established since the accused possessed the requisite intent to cause serious bodily injury. The law simply requires distinct evidence establishing the perpetrator s intent to cause serious bodily before a conviction for attempt will be sustained. Even in the case where no injury is inflicted, an attempt under (a)(1) can be established if the requisite intent is present. 21 Similarly, attempts to cause only bodily injury, but done using a deadly weapon, will sustain a conviction under section (a)(4) of the statute Commw. v. Alexander, 383 A.2d 887, 889 (Pa. 1978). 18 Id. 19 Id. 20 Commw. v. Lopez, 654 A.2d 1150 (Pa. Super. 1995). 21 Id. at 1154; see also Commw. v. Rosado, 684 A.2d 605, 608 (Pa. Super. 1996). 22 Lopez, 654 A.2d at

7 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -7 Likewise, a situation where the injury incurred only meets the criteria for bodily injury, but where the act of causing the injury is accompanied by a deadly weapon, is proscribed under this section. d. Infliction of serious bodily injury Section (a)(1) also includes the actual infliction of serious bodily injury on a victim, be it intentionally, knowingly, or by recklessness that involves circumstances manifesting extreme indifference to the value of human life. In Commonwealth v. Nichols, the court sustained the aggravated assault conviction where, after being hit by the defendant with a bat, the victim's jaw was wired shut for six weeks. 23 The court also found that the aggravated assault conviction could be sustained because the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life when the defendant hit the victim in the jaw with a baseball bat Recklessly Endangering Reckless endangering is a lesser-included offense of aggravated assault that proscribes reckless conduct that creates a danger of death or serious bodily injury to others. It is often charged in conjunction with aggravated assault but stands apart because neither the infliction of injuries nor the attempt to do so is necessary to support a conviction. Reckless conduct that creates the risk of death or serious bodily injury is the focus of the statute. Recklessly endangering another person. A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 25 In order to establish the crime of recklessly endangering another person, prosecutors must establish: (1) a mens rea of recklessness, (2) an actus reus, (3) causation, and (4) the achievement of a particular result, namely danger to another person of death or serious bodily injury. 26 The mens rea for recklessly endangering another person is a conscious disregard of a known risk of death or great bodily harm to another person. 27 a. Striking child with shoe, cold water immersion Acts of commission or omission by parents toward their children may create substantial risk of death or great bodily harm so as to allow the conviction of parents for recklessly endangering another person. In Commonwealth v. Rochon, the court upheld a reckless endangering conviction where the defendant struck her 17-month-old son with a shoe after he soiled his diaper 23 Commw. v. Nichols, 692 A.2d 181 (Pa. Super. 1997). 24 Id. at PA. C.S Reynolds, 835 A.2d at Commw. v. Hopkins, 747 A.2d 910, 916 (Pa. Super. 2000).

8 VIII -8 and then immersed him in water sufficiently cold to cause hypothermia. 28 The Rochon court found that the defendant s conduct recklessly endangered her son's life. 29 As noted earlier, the linchpin in recklessly endangering is reckless conduct that creates a risk of death or great bodily harm. 4. Terroristic Threats The terroristic threats statute seeks to prevent harm created by the psychological distress that follows from an invasion of another's sense of personal security. 30 The Pennsylvania terroristic threats statute provides as follows: 31 Terroristic threats must somehow make their way to the victim; direct communication between defendant and victim is not required. Terroristic threats (a) Offense defined. A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another; (2) cause evacuation of a building, place of assembly or facility of public transportation; or (3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience. (b) Restitution. A person convicted of violating this section shall, in addition to any other sentence imposed or restitution ordered under 42 Pa. C.S. 9721(c) (relating to sentencing generally), be sentenced to pay restitution in an amount equal to the cost of the evacuation, including, but not limited to, fire and police response; emergency medical service or emergency preparedness response; and transportation of an individual from the building, place of assembly or facility. (c) Preservation of private remedies. No judgment or order of restitution shall debar a person, by appropriate action, to recover from the offender as otherwise provided by law, provided that any civil award shall be reduced by the amount paid under the criminal judgment. (d) Grading. An offense under subsection (a) constitutes a misdemeanor of the first degree unless the threat causes the occupants of the building, place of assembly or facility of public transportation to be diverted from their normal or customary operations, in which case the offense constitutes a felony of the third degree. (e) Definition. As used in this section, the term "communicates" means, conveys in person or by written or electronic means, including telephone, electronic mail, Internet, facsimile, telex and similar transmissions. 28 Commw. v. Rochon, 581 A.2d 239 (Pa. Super. 1990). 29 Id. 30 Reynolds, 835 A.2d at PA. C.S (emphasis added).

9 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -9 When threats are made with the intent to terrorize the victim, the threat becomes criminal in nature. 32 The fact that anger is involved is no defense. However, the terroristic threats statute is not meant to penalize mere spur-of-the-moment threats that result from anger. 33 To establish the offense of terroristic threats, the Commonwealth must prove that (1) the defendant made a threat to commit a crime of violence, and (2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror. 34 Neither the ability to carry out the threat, nor a belief by the person threatened that it will be carried out is an essential element of the crime. 35 Further, direct communication of the threat between the defendant and the victim is not a required element of the crime. 36 All that is necessary is that the threat somehow makes its way to the victim. 5. Kidnapping The Pennsylvania kidnapping statute embodies the traditional notion of kidnapping (snatching a person by force) as well as a less recognized alternative confinement by force, threat, or deception. In domestic violence-related kidnapping cases, perpetrators may use the kidnapping of children or intimate partners to thwart efforts by the partner to withdraw from the relationship. The statute reads as follows: 37 Kidnapping (selected provisions) (a) Offense defined. A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions: (1) To hold for ransom or reward, or as a shield or hostage. (2) To facilitate commission of any felony or flight thereafter. (3) To inflict bodily injury on or to terrorize the victim or another. (4) To interfere with the performance by public officials of any governmental or political function. (b) Grading. Kidnapping is a felony of the first degree. A removal or confinement is unlawful within the meaning of this section if it is accomplished by force, threat or deception, or, in the case of a person who is under the age of 14 years or an incapacitated person, if it is accomplished without the consent of a parent, guardian or other person responsible for general supervision of his welfare. 32 Id. 33 Reynolds, 835 A.2d at Id. 35 Commw. v. Fenton, 750 A.2d 863 (Pa. Super. 2000). 36 Commw. v. Kelley, 664 A.2d 123 (Pa. Super. 1995) PA. C.S (emphasis added).

10 VIII -10 a. Substantial distance is one that isolates victim One question that arises in kidnapping cases involves the meaning of substantial distance. The court in In re T.G. held that a "substantial distance" is one that isolates and exposes the victim to increased risk of harm. 38 When the movement places the victim in a completely different environmental setting, removed from the security of familiar surroundings, the statutory definition of kidnapping is met. 39 Hence, in Commonwealth v. Hughes, the removal of the victim a distance of two miles was sufficient. 40 In Commonwealth v. Campbell, abducting a 4- year-old child several blocks was sufficient to support a conviction. 41 Kidnapping in its less-recognized alternative is the forcible confinement of another in a place of isolation for a substantial period, with the intention to Defendant s status as the victim s parent does not preclude a conviction for kidnapping. inflict bodily injury or terror. 42 In In re T.G., the defendant took the young victim from public view, placed the victim inside the defendant 's residence, closed the door, and refused entry to the victim's playmate. After 20 minutes, the defendant took the victim to his front porch, but would not let the victim leave. The victim's mother was in sight, but the defendant refused to release the victim until police arrived. The victim was afraid and crying. The court found that the defendant had confined the victim for a substantial period of time in a place of isolation and upheld the conviction. 43 b. Parent may be convicted of kidnapping A parent may be convicted of kidnapping his or her own child. In Commonwealth v. Rivera, the court held that a defendant's status as the victim's biological father does not preclude a conviction for kidnapping. 44 In this case, the father had a history of abusing the mother. After a particularly severe beating, the mother separated from the father, pressed criminal charges for the assault, and obtained a PFA limiting the father s access to the parties 2-year-old child to supervised visitation. After assaulting and strangling the mother, the father broke into the child s daycare provider s facility and abducted the child. Afterwards, he repeatedly called the mother, threatening to harm the child if she did not meet with him. The father s kidnapping conviction was affirmed by the Superior Court In re T.G., 836 A.2d 1003 (Pa. Super. 2003). 39 Id. at Commw. v. Hughes, 399 A.2d 694 (Pa. Super. 1979). 41 Commw. v. Campbell, 509 A.2d 394 (Pa. Super. 1986). 42 Commw. v. Tolbert, 670 A.2d 1172 (Pa. Super. 1995). 43 In re T.G, 836 A.2d at Commw. v. Rivera, 828 A.2d 1094 (Pa. Super. 2003). 45 Id. at

11 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII Harassment Harassment carries the two lowest offense grades, third-degree misdemeanor and summary offense. The most relevant portions of the statute relating to harassment involving domestic violence are as follows: 46 Harassment (selected provisions) (a) Offense defined. A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; (2) follows the other person in or about a public place or places; (3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose; (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; (5) communicates repeatedly in an anonymous manner; (6) communicates repeatedly at extremely inconvenient hours; or (7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6). (c) Grading. (1) An offense under subsection (a)(1), (2) or (3) shall constitute a summary offense. (2) (i) An offense under subsection (a)(4), (5), (6) or (7) shall constitute a misdemeanor of the third degree. (f) Definitions. As used in this section, the following words and phrases shall have the meanings given to them in this subsection: "Communicates." Conveys a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission. "Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. Acts indicating a course of conduct that occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct. For more information about harassment offenses, including cases, please see Chapter IX: Stalking. 7. Stalking The offense of stalking was expanded in 2002 to specifically address stalking through technology and to further enhance penalties for stalking of a family or PA. C.S

12 VIII -12 household member. 47 Prior to the 2002 amendments, the crime of stalking was codified with the harassment in section Stalking (selected provisions) 48 (a) Offense defined. A person commits the crime of stalking when the person either: (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person. (c) Grading. (1) Except as otherwise provided for in paragraph (2), a first offense under this section shall constitute a misdemeanor of the first degree. (2) A second or subsequent offense under this section or a first offense under subsection (a) if the person has been previously convicted of a crime of violence involving the same victim, family or household member, including, but not limited to, a violation of section 2701 (relating to simple assault), 2702 (relating to aggravated assault), 2705 (relating to recklessly endangering another person), 2901 (relating to kidnapping), 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), an order issued under section 4954 (relating to protective orders) or an order issued under 23 Pa.C.S (relating to relief) shall constitute a felony of the third degree. (f) Definitions. As used in this section, the following words and phrases shall have the meanings given to them in this subsection: "Communicates." To convey a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission. "Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. The term includes lewd, lascivious, threatening or obscene words, language, drawings, caricatures or actions, conveyed in person or anonymously. Acts indicating a course of conduct that occur in more than one jurisdiction may be used by PA. C.S ; see 2002 Pa. Laws PA. C.S

13 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -13 any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct. "Emotional distress." A temporary or permanent state of mental anguish. "Family or household member." Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. 49 Pennsylvania s current stalking statute, section , expands on section 2709 (harassment). 50 Before section was adopted in 2002, the crime of stalking fell within the harassment statute at section The prohibition on stalking remained substantially the same, with some additions. Therefore, stalking cases interpreted under section 2709 remain relevant to the interpretation of stalking under section For case examples and more information about stalking, please see Chapter IX: Stalking. 8. Strangulation The strangulation statute, enacted in 2016, recognizes that strangulation is one of the most lethal forms of domestic violence for victims. 52 Strangulation (a) Offense defined.- A person commits the offense of strangulation if the person knowingly or intentionally impedes the breathing or circulation of the blood of another person by: (1) Applying pressure to the throat or neck; or (2) Blocking the nose and mouth of the person. (b) Physical injury.- Infliction of a physical injury to a victim shall not be an element of the offense. The lack of physical injury to a victim shall not be a defense in a prosecution under this section. (c) Affirmative defense._ It shall be an affirmative defense to charge under this section that the victim consented to the defendant s actions as provided under section 311 (relating to consent). (d) Grading.- (1) Except as provided in paragraph (2) or (3), a violation of this section shall constitute a misdemeanor of the second degree. (2) A violation of this section shall constitute a felony of the second degree if committed: (i) Against a family or household member as defined in 23 Pa.C.S (relating to definitions); (ii) By a caretaker against a care-dependent person; or PA. C.S PA. C.S. 2709, PA. C.S. 2709, ; see 2002 Pa. Laws PA. C.S

14 VIII -14 (iii) In conjunction with sexual violence as defined in 42 Pa.C.S. 62A03 (relating to definitions) or conduct constituting a crime under 18 Pa.C.S (relating to stalking) or Ch. 30 Subch. B (relating to prosecution of human trafficking). (3) A violation of this section shall constitute a felony of the first degree if: (i) at the time of the commission of the offense, the defendant is subject to an active protection from abuse order under 23 Pa.C.S. Ch. 61 (relating to protection from abuse) or a sexual violence or intimidation protection order under 42 Pa.C.S. Ch. 62A (relating to protection of victims of sexual violence or intimidation) that covers the victim; (ii) the defendant uses an instrument of crime as defined in section 907 (relating to possessing instruments of crime) in commission of the offense under this section; or (iii) the defendant has previously been convicted of an offense under paragraph (2) or a substantially similar offense in another jurisdiction. 53 E. Sexual Crimes and Related Offenses 1. Civil Relief in Sexual Assault Cases a. Protection From Abuse Orders Rape is often an integral part of domestic violence. 54 However, because sexual assault is only rarely included in a victim s protection order petition, 55 it Read more about the PSVI Act Download the Judicial Benchcard TA Bulletin Process Flowchart Jurist enews may not come to the judge s attention. Judges have discretion to request information that could reveal any pattern of systemic abusive behaviors, to include sexual assault. 56 A full picture of the abuse is relevant to risk of reassault in PFA cases as well as bail and sentencing decisions in criminal cases. 53 See 18 PA. C.S. 2718(3) for the definitions of Care-dependent person, Caretaker, Legal entity and Private care residence. Learn more about strangulation and Pennsylvania law at 54 A national survey cited by the American Bar Association Commission on Domestic & Sexual Violence estimates that 34 percent of women are victims of sexual coercion by an intimate partner or husband. Am. Bar. Ass n. Domestic Violence Statistics webpage, available at citing Kathleen C. Basile, Prevalence of Wife Rape and Other Intimate Partner Sexual Coercion in a Nationally Representative Sample of Women, 17 Violence and Victims 511 (2002). 55 A U.S. Department of Justice special report citing several state studies indicates that, If there is physical abuse in domestic violence, studies suggest that there is probably sexual abuse as well. Klein, supra note 153 at Id. at 3.

15 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -15 b. Protection From Sexual Violence or Intimidation Orders Sexual assault victims who do not have the family or household relationship required by the PFA Act may seek civil relief through the Protection for Victims of Sexual Violence and Intimidation Act of This relief is available regardless of whether the victim seeks criminal prosecution. Although closely modeled on the PFA Act, there are no firearms relinquishment provisions in the PSVI Act. These no-contact orders can remain in effect for up to three years and are entered into the PFA Database (PFAD). Protection From Intimidation (PFI) orders are available only for minors who are being intimidated by an adult who is neither a family member nor a past or present dating or intimate partner. The PSVI Statute defines Intimidation as: Conduct constituting a crime under either of the following provisions between persons who are not family or household members: 18 Pa.C.S. 2709(a)(4), (5), (6) or (7) (relating to harassment) where the conduct is committed by a person 18 years of age or older against a person under 18 years of age. 18 Pa.C.S (relating to stalking) where the conduct is committed by a person 18 years of age or older against a person under 18 years of age. 42 Pa. C.S. 62A03 The PSVI Act refers to parts of the Pennsylvania Crimes Code for the definitions of harassment and stalking. 58 Under the Act, minors are potentially eligible for an order protecting them from an adult who is stalking or harassing them. An adult must petition for the order on the minor s behalf. 57 Pa. C.S. 62A01-62A20 (2015). See JACK PANELLA, PENNSYLVANIA CRIMES OF SEXUAL VIOLENCE BENCHBOOK, PENNSYLVANIA COALITION AGAINST RAPE AND ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS 19 (2015) at 58 Harassment 18 Pa.C.S. 2709(a)(4), (5), (6) or (7). Stalking 18 Pa.C.S

16 VIII Rape Rape (selected provisions) (a) Offense defined. A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant: (1) By forcible compulsion. (2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. (3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring. (4) Where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. (5) Who suffers from a mental disability which renders the complainant incapable of consent. (c) Rape of a child. A person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age. (d) Rape of a child with serious bodily injury. A person commits the offense of rape of a child resulting in serious bodily injury, a felony of the first degree, when the person violates this section and the complainant is under 13 years of age and suffers serious bodily injury in the course of the offense. 59 a. Marital rape The existence of a marital relationship with a victim is irrelevant when determining whether a particular sexual offense occurred. 60 b. Intercourse by forcible compulsion The essence of the criminal act of rape under sections (a)(1) and (a)( 2) is involuntary submission to sexual intercourse by force or the threat of force. 61 One of the requirements for rape is penetration, however slight; however, there is no requirement that penetration reach the vagina. 62 The force necessary to support a conviction for rape need only be such as to establish lack of consent and to induce a woman to submit without additional resistance. 63 A rape victim need not actively resist her assailant if such resistance is reasonably believed to be futile or dangerous PA. C.S Before 1995, men who raped their wives could not be charged with the crime of rape. In recognition of this fact, the Pennsylvania legislature rewrote the rape statute to do away with the spousal exception to the crime. Such men could be charged with the crime of spousal sexual assault, a crime that carried a lesser criminal penalty than rape. See 18 PA. C.S (repealed 1995). 61 See Commw. v. Karkaria, 625 A.2d 1167 (Pa. 1993). 62 Commw. v. Poindexter, 646 A.2d 1211 (Pa. Super. 1994). 63 Commw. v. Williams, 439 A.2d 765 (Pa. Super. 1982). 64 Commw. v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996).

17 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -17 Force can also include moral, psychological, or intellectual force. The determination of whether moral, psychological, or intellectual force exists in a given case to support a conviction is to be made in light of the totality of the circumstances. Important factors to be considered include: the respective ages of the victim and defendant, the respective mental and physical conditions of the victim and defendant, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which defendant may have been in a position of authority, domination, or custodial control over the victim, and whether the victim was under duress. 65 c. Defendant s previous brutalization of victim relevant in rape case Forcible compulsion and threat of forcible compulsion may be demonstrated by the defendant s past brutality toward the victim. In Commonwealth v. Richter, the defendant visited his ex-wife s home to show her pictures of their son s Holy Communion. 66 During the visit, the defendant made sexual advances toward his ex-wife, which she rebuffed, telling the defendant that she did not want to have sex with him and feared sexual intercourse would harm her unborn child. The defendant grabbed the victim from behind, pinned her against a table, pulled off her pants and raped her. Although the victim verbally resisted, she did not physically resist. The victim testified that she did not physically resist because she knew, based on past experiences, that the defendant was capable of hurting both her and her unborn child. She then described two previous occasions where the defendant had brutally raped her. During one attack, the defendant rammed a brush covered with plumber s glue into her vagina. During the other attack, the defendant punched her in the mouth, breaking numerous teeth. Both of the prior attacks resulted in her hospitalization. The Superior Court held that the evidence of defendant s prior brutality toward the victim was sufficient to establish forcible compulsion or the threat of forcible compulsion. It also held that evidence of the prior rapes was relevant and admissible to show the victim s state of mind in failing to physically resist the defendant s advances. 67 d. Rape statute is gender-neutral The rape statute is gender-neutral toward victims of sexual assault and encompasses sexual assaults committed by males against males. 68 A rape victim need not actively resist if s/he reasonably believes such resistance to be futile or dangerous. 65 Commw. v. Ruppert, 579 A.2d 966 (Pa. Super. 1990). 66 Commw. v. Richter, 676 A.2d 1232 (Pa. Super. 1996), aff d 711 A.2d 464 (Pa. 1998). 67 Id. at Commw. v. Frank, 640 A.2d 904 (Pa. Super. 1994).

18 VIII -18 e. Statutory rape Sexual intercourse with a child younger than 13 years old is automatically considered rape, is a first-degree felony, and may result in a sentence of up to 40 years imprisonment. 69 Sexual intercourse with a child younger than 13 that causes serious bodily injury is a first-degree felony and carries a maximum sentence of life imprisonment. 70 f. Statutory sexual assault Intercourse between a minor 15 years or younger with a person who is four years older or more is sufficient for a charge of statutory sexual assault. 71 However, the minor will have the ability to consent to intercourse where the parties are married. The Pennsylvania Supreme Court upheld this statute s constitutionality, finding that it served the legitimate purpose of protecting minors younger than 16 from older teenage or adult sexual aggressors Involuntary Deviate Sexual Intercourse In Pennsylvania, the crime of involuntary deviant sexual intercourse is essentially a restatement of the crime of rape with one notable exception: the definition of the sexual activity involved. The crime of rape embodies sexual intercourse in its commonly recognized definition, whereas involuntary deviant sexual intercourse proscribes certain oral and anal sexual activities. The definition of deviate sexual intercourse is broader than merely sexual intercourse; otherwise, the language in both statutes is similar. Involuntary deviate sexual intercourse (selected provisions) (a) Offense defined. A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant: (1) by forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (3) who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring; (4) where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; (5) who suffers from a mental disability which renders him or her incapable of consent; For forcible compulsion, prosecution must establish defendant s use of physical force, threat of physical force, or psychological coercion PA. C.S. 3121(c) PA. C.S. 3121(d), (e)(2) PA. C.S Commw. v. Albert, 758 A.2d 1149 (Pa. 2000).

19 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -19 (7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other. (b) Involuntary deviate sexual intercourse with a child. A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age. (c) Involuntary deviate sexual intercourse with a child with serious bodily injury. A person commits an offense under this section with a child resulting in serious bodily injury, a felony of the first degree, when the person violates this section and the complainant is less than 13 years of age and the complainant suffers serious bodily injury in the course of the offense. (e) Definition. As used in this section, the term "forcible compulsion" includes, but is not limited to, compulsion resulting in another person's death, whether the death occurred before, during or after the sexual intercourse. 73 Deviate sexual intercourse is defined in another part of the criminal code. Deviate sexual intercourse. Sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures. 74 The crime of involuntary deviate sexual intercourse is committed when a person forces another person by actual physical compulsion or threats thereof to engage in acts of anal or oral intercourse. 75 It also occurs when an individual engages in deviate sexual intercourse with another person: (1) who is less than 13 years old; 76 or (2) when the individual engages in deviate sexual intercourse with a person who is less than 16 years of age while the perpetrator is four or more years older than the victim. 77 To prove the "forcible compulsion" component of involuntary deviate sexual intercourse by forcible compulsion, the Commonwealth is required to establish beyond a reasonable doubt that the defendant used either physical force, the threat of physical force, or psychological coercion Aggravated Indecent Assault The crime of aggravated indecent assault is distinguished from the other sexual offenses chiefly in the method of penetration employed with the PA. C.S PA. C.S Commw. v. Perrin, 398 A.2d 1007 (Pa. 1979) PA. C.S. 3123(b) PA. C.S. 3123(a)(7); see also In re J.R., 648 A.2d 28 (Pa. Super. 1994). 78 Commw. v. Brown, 727 A.2d 541 (Pa. 1999).

20 VIII -20 victim. As a result, it is mainly used to charge digital penetration of the victim s genitals or anus. Aggravated indecent assault (selected provisions) (a) Offenses defined. Except as provided in sections 3121 (relating to rape), (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault, a felony of the second degree, if: (1) the person does so without the complainant's consent; (2) the person does so by forcible compulsion; (3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (7) the complainant is less than 13 years of age; or (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other. 79 a. Digital penetration The court in Commonwealth v. Kelley held that digital penetration is the type of conduct that falls within the parameters of aggravated indecent assault. 80 b. Allegations of taint in sexual assault claims by children Taint is the implantation of false memories or the distortion of actual memories through improper and suggestive interview techniques. 81 When a child accuses a family member of sexually abusing him or her, the defendant often claims that the child s testimony was tainted by another person s influence. 82 In Commonwealth v. Delbridge, the Pennsylvania Supreme Court evaluated defendant father s claims of taint following his aggravated indecent assault conviction for sexually abusing his two young children. 83 The party alleging taint bears the burden of: (1) presenting some evidence of taint at the competency hearing before exploration of taint is PA. C.S Commw. v. Kelley, 801 A.2d 551 (Pa. 2002). 81 Commw. v. Delbridge, 855 A.2d 27, 30 (Pa. 2003). 82 See, e.g., Commw. v. Hunzer, 868 A.2d 498 (Pa. Super. 2005). 83 Commw. v. Delbridge, 859 A.2d 1254 (Pa. 2004).

21 CHAPTER VIII: DOMESTIC VIOLENCE CRIMES VIII -21 considered; and (2) overcoming the child s presumption of competency by clear and convincing evidence. 84 The Supreme Court remanded the case to the trial court for an additional competency hearing where the defendant could present evidence of taint. On remand, the trial court again found the children to be competent, and that the defendant failed to demonstrate the presence of taint. Accordingly, the trial court found that the defendant failed to meet the burden that his children s allegations were compromised by taint. 85 The Supreme Court reviewed the trial court s decision and affirmed. 86 For more information on child competency hearings and taint allegations, please see Chapter II: Evidence. F. Crimes Involving Property 1. Arson According to the statute s official comment, this section updates the law of arson by distinguishing between arson endangering life and arson endangering property only, with the emphasis on the degree of danger to life and property rather than on the burning as such. 87 The perpetrator s ownership interest in the property is irrelevant. Perpetrators of domestic violence have used arson to intimidate or retaliate against their victims. 88 Arson and related offenses (selected provisions) (a) Arson endangering persons. (1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if: (i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire; or (ii) he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another. (2) A person who commits arson endangering persons is guilty of murder of the second degree if the fire or explosion causes the death of any person, including but not limited to a firefighter, police officer or 84 Id. at Id.at Id. at PA. C.S. 3301, official cmt. (1972). 88 See, e.g., Commw. v. John, 596 A.2d 834 (Pa. Super. 1991) (A husband set fire to the bingo hall where his estranged wife was playing bingo in retaliation for her refusal to spend the evening drinking with him); Commw. v. Rainey, 363 A.2d 1148 (Pa. Super. 1976) (History of domestic violence; a husband threatened to burn property and kill his wife and children); Commw. v. Terry, 394 A.2d 466 (Pa. 1978) (A defendant argued with his estranged girlfriend and told her he was going to get her. When she refused to resume their relationship, the defendant burned the house that adjoined girlfriend s house that night, and firebombed the girlfriend s house two days later).