Legal

What is Sexual Assault?

American Indian / Alaskan Native populations experience sexual assault and sexual violence at an astoundingly high rate.  In fact, according to all relevant studies and statistics, a Native woman is twice as likely to be a victim of sexual assault as a woman of any other ethnicity.

In order to understand this crisis in Indian Country, one must first understand the crime of sexual assault.  Sexual assault commonly defined as any “non-consensual sexual contact.” What constitutes “non-consensual sexual contact” depends upon the relevant laws in each, individual jurisdiction.

The term “consensual” is a legal term-of-art, which requires that a person possess the legal capacity to form consent to the sexual contact at the time of the sexual contact. It is important to recognize that a woman who is intoxicated or who has severe cognitive disabilities (developmentally disabled, an elder with dementia, etc.) may not have the legal capacity to consent to the sexual contact. In many jurisdictions, minors do not have the legal capacity to consent to sexual contact.

A woman may withdraw her consent from the sexual contact at any time.  Any continued, non-consensual sexual contact constitutes the crime of sexual assault.

Sexual assault can be accomplished by the use of force, by the threat of force, by coercion, or by fraud (e.g. posing as a medical doctor). It is important to note that a victim is not required to fight or resist his or her attacker. Under the laws of most jurisdictions, a conviction for sexual assault can be secured if there is sufficient evidence that sexual contact occurred and that the contact was non-consensual.

A common misconception concerning sexual assault is that there must be proof of penile-vaginal penetration.  To the contrary, perpetrators of sexual assault often use foreign objects in the commission of this crime. These foreign objects commonly include firearms, tools, and bottles. Thus, many jurisdictions criminalize any non-consensual sexual contact, including one or more of the following types of conduct:

  • Contact, touching, or penetration of a victim’s vulva or vagina by a penis, finger, mouth, or foreign object.
  • Contact, touching, or penetration of a victim’s anus by a penis, finger, mouth, or foreign object.
  • Oral contact with a victim’s vulva, vagina, or anus.
  • Contact or touching of a victim’s breast by a finger, hand, mouth, or foreign object.

Sexual Assault Documents

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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project was supported by Grant No. 2011-TA-AX-K045, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.