VAWA 2022 Federal Criminal Sexual Misconduct Statutes

On October 1, 2022, three federal criminal sexual misconduct statutes that were part of the 2022 reauthorization of the Violence Against Women Act (VAWA 2022) went into effect.

These statutes strengthen DOJ’s ability to prosecute and hold accountable those who commit various forms of sexual assault particularly against marginalized and vulnerable victims. They cannot be applied retroactively.

18 U.S.C. § 2242(3) (Sexual Abuse)

18 U.S.C. § 2242(3) (Sexual Abuse) expands the definition of federal sexual abuse to include “knowingly “engag[ing] in a sexual act with another person without that other person’s consent, to include doing so through coercion.” This statute filled a gap in the United States Code by making it a crime to engage in nonconsensual sexual acts without the need to prove additional elements, as the other subsections of 18 U.S.C. § 2242 require. Prior to the enactment of this statute, “Federal law lack[ed] a generic statute addressing nonconsensual rape. . .”, United States v. James, 810 F.3d 674, 676 (9th Cir. 2016). This statute to strengthens prosecutions in Indian Country, federal prisons and other facilities, and special maritime and extraterritorial jurisdiction. A violation is punishable by up to life in prison.

18 U.S.C. § 2243(c) (Sexual Abuse of an Individual in Federal Custody)

18 U.S.C. § 2243(c) (Sexual Abuse of an Individual in Federal Custody) makes it a federal crime punishable up to 15 years in prison for any federal law enforcement officer to “knowingly engage in a sexual act with an individual who is under arrest, under supervision, in detention, or in Federal custody.” Consent is not a defense. Federal jurisdiction is not based on where the crime occurred but who the defendant is, i.e. a federal law enforcement officer, as defined under 18 U.S.C. § 115.

18 U.S.C. § 250 (Penalties for Civil Rights Offenses Involving Sexual Misconduct)

18 U.S.C. § 250 (Penalties for Civil Rights Offenses Involving Sexual Misconduct) is a penalty statute, charged in conjunction with substantive civil rights violations that involve nonconsensual sexual acts or sexual contact. Section 250 mostly impacts prosecutions of those who commit sexual assault while acting under color of law in violation of 18 U.S.C. § 242 (Deprivation of Rights).

• For sexual conduct to be a constitutional deprivation under Section 242, it must be nonconsensual. Prior to the enactment of 18 U.S.C. § 250, most sexual assaults committed by law enforcement and other government actors in violation of 18 U.S.C. § 242 were misdemeanors.

• That was because the most common felony statutory enhancements available under Section 242—causing bodily injury, using a dangerous a weapon, or using physical force to commit a sexual act are not common in sexual assaults perpetrated by those acting under color of law. Such offenders do not need to resort to causing bodily injury, using an actual weapon, or employing physical force during a sexual assault because they wield the weapon of authority to gain submission.

• For example, prior to the enactment of 18 U.S.C. § 250, if a police officer sexually assaulted a victim by coercing her to submit to a sexual act under threat of deportation or threat of falsely reporting her for child neglect, or if the victim was handcuffed and thus unable to get away, the resulting crime was a misdemeanor. By comparison, if the same officer used unreasonable force against the victim—by punching that victim in the face—and thereby causing bodily injury to that victim, the resulting crime is a felony punishable by up to 10 years in prison.

• 18 U.S.C. § 250 makes the above examples of sexual assault and all other forms of sexual assaults from groping to forceful penetration committed in violation of 18 U.S.C. § 242, felony offenses with varying penalties. Section 250’s graduated penalty structure largely mirrors the definitions and penalty structure of the Chapter 109A offenses. It treats sexual assaults under color of law (where the victims are predominantly women) in a manner commensurate with physical assaults committed under color of law (where the victims are predominantly men).