ARS § 13-1404 is the Arizona statute that defines the crime of sexual abuse. Defendants commit this offense when they intentionally or knowingly make sexual contact with a person 15 years or older without that person’s consent, or contact a person under 15 if the contact involves the female breast. A violation of this law is charged as a Class 5 felony and is typically punishable by a state prison term of up to two-and-a-half years.
The language of ARS 13-1404 states that “A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.”
- a woman fondling a man’s penis without his consent.
- groping a high school girl’s breast.
- a guy trying to perform fellatio on a woman when she keeps telling him, “no.”
Defendants can try to challenge sexual abuse allegations by raising a legal defense. A few common defenses include accused persons showing that:
- the “victim” consented to the contact,
- their actions were not sexually motivated, and/or
- they were falsely accused.
In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.
1. How does Arizona law define “sexual abuse”?
Defendants are guilty of sexual abuse when they:
- intentionally or knowingly make “sexual contact” with a person and the age of the victim is 15 or more, and
- they do so without that person’s consent.i
A party is also guilty of this crime if:
- he/she makes sexual contact with a person under 15, and
- the sexual activity involves only the female breast.ii
Arizona criminal code says that “sexual contact” occurs when:
- a person directly or indirectly touches, fondles, or manipulates any part of the genitals, anus, or female breast, and
- the person does so by any part of the body, by any object, or by causing a person to engage in such contact.iii
Note that while the victim’s age may play some role in defining the nature of these sexual offenses, the age of the perpetrator is immaterial.iv
2. Can a person raise a legal defense?
Arizona criminal defense attorneys draw upon several legal strategies to contest charges in sexual abuse cases. Some of these include showing that:
- the “victim” consented to the sexual conduct.
- the accused was not sexually motivated.
- the defendant was falsely accused.
Recall that a person is only guilty of these types of sex crimes if he/she made a sexual contact without the other party’s consent. It is a valid defense for an accused to show that the “victim” consented to the contact.
Note, however, that consent will not work as a defense if:
- the alleged victim was 15, 16, or 17 years of age, and
- the defendant was in a position of trust.v
The age of consent in Arizona is 18 years of age. That means a person under 18 is deemed legally incapable of lawfully consenting to engage in sex.
“Position of trust” means a person who is or was any of the following:
- the minor’s parent, stepparent, adoptive parent, legal guardian, or foster parent,
- the minor’s teacher,
- the minor’s coach or instructor, and/or
- the minor’s clergyman or priest.vi
2.2 No sexual motivation
Arizona law states that an accused can always raise the defense that his/her actions lacked sexual motivation.vii Perhaps, for example, a defendant committed some sexual misconduct, but did so only by accidentally making sexual contact with someone else.
2.3 Falsely Accused
Unfortunately, “victims” falsely accuse people of sexual abuse all the time (for instance, out of jealousy or payback). A defense, therefore, is for defendants to show that they were unjustly blamed or that a “victim” made false representations to a peace officer.
3. What are the penalties for an ARS 13-1404 conviction?
A person convicted under ARS 13-1404 is guilty of a Class 2 felony. The crime is punishable by up to 2.5 years in state prison.
This prison term can increase depending on certain factors, like if the defendant has prior felony convictions.
Note also that if a victim is under the age of 18, the convicted party will have to:
- register as a sex offender, per ARS 13-3821, and
- be placed on the Arizona sex offender registry.ix
Sometimes a person commits sexual abuse against an adult while also committing some form of domestic violence. In these cases, the defendant is guilty and charged with both:
- sexual abuse, and
- the domestic violence crime.
Sexual abuse victims are encouraged to contact the national sexual assault hotline.
4. Are there crimes related to sexual abuse?
There are three Arizona offenses related to sexual abuse. These are:
- sexual assault – ARS 13-1406,
- aggravated assault – ARS 13-1204, and
- public sexual indecency – ARS 13-1403.
4.1 Sexual assault – ARS 13-1406
ARS 13-1406 is the Arizona statute that says a person commits the crime of sexual assault (rape) when:
- he/she intentionally and knowingly engages in sexual intercourse or oral sexual contact with another person, and
- does so without that party’s consent.
As with sexual abuse, a person is guilty of this crime only if there is a lack of consent.
4.2 Aggravated assault – ARS 13-1204
ARS 13-1204 is the Arizona statute that states that a person commits the crime of aggravated assault when:
- he/she assaults another person, and
- does so by means of certain aggravating factors (like causing serious physical injury to the victim).
Arizona law considers both sexual abuse and aggravated assault dangerous crimes.
4.3 Public sexual indecency – ARS 13-1403
ARS 13-1403 is the Arizona law that says a person is guilty of public sexual indecency if he/she:
- performs an act of sexual contact, oral sexual contact, sexual intercourse, or bestiality, and
- does so in front of another person that is reasonably offended by the act.
The crime is different than indecent exposure and, like with sexual abuse, it includes acts involving sexual contact.
- Arizona Revised Statutes 13-1404A. See also State v. Bolivar (2020) 2020 Ariz. App. LEXIS 765.
- A.R.S. 13-1404A.
- ARS 13-1401A3a.
- In re Pima County Juvenile Appeal (1990) 164 Ariz. 25.
- ARS 13-1404B.
- ARS 13-1401A2.
- See, for example, State v. Holle (2016) 240 Ariz. 300.
- ARS 13-1404C.
- ARS 13-3821.