What is “consent” in the context of sexual assault or rape?
Consent is when someone agrees, gives permission, or says “yes” to sexual contact. To be given, each person must feel free to say “yes,” “no,” or “stop” at any point. Consent can be taken back – you can say yes at first, and then change your mind. You can say yes one day, and then say no another day. Having sexual contact with someone in the past does not give that person permission to have sexual contact with you in the future if you do not consent. A person’s silence is not consent. Alcohol use or consumption of drugs can make someone incapable of giving consent. The Rape, Abuse & Incent National Network (RAINN) is the nation’s largest anti-sexual violence organization. They provide a helpful article about what consent looks like in real life.
Should I report a sexual assault?
It is very normal to question whether or not to contact law enforcement to report a sexual assault. It requires sharing vulnerable, intimate details with strangers. Sexual assault takes an enormous physical and emotional toll on survivors. No survivor is obligated to report their assault, and survivors can choose to report their assault at a later date and time. However, reporting your assault (and doing so close in time to when the assault happened) may help your case in either criminal or civil court, because it helps to preserve evidence. Survivors who do report will be given the option to have a Sexual Assault Forensic Exam (often called “rape kits” or “SANE exams”) to preserve DNA samples, hair, saliva, clothes worn, and other evidence that could help to support a case against an attacker. The nurse performing the exam will also interview the survivor, and may take pictures if the survivor agrees. You can have a rape kit completed before reporting, to protect this physical evidence while deciding whether to report.
Whether you choose to report an assault or not, it is important to talk to someone who can support you in an impossibly difficult time. If you do not feel comfortable talking to friends or family, you can call the National Sexual Assault Hotline at 1-800-656-HOPE for anonymous support, operated by RAINN. Some survivors choose to move forward with reporting as a means of closure, to help begin the process of healing. Others choose to report because they want to bring their attacker to justice. Others choose not to come forward right away, but then later feel ready to step forward. To report a sexual assault, you can call 911, visit the emergency room, call the National Sexual Assault Hotline (1-800-656-HOPE) to be connected to a local rape crisis center, or speak to a law firm like ours that understands the process and can help you navigate it.
Is there a difference between sexual assault and rape under Georgia law?
“Rape” and “sexual assault” can be used interchangeably in criminal or civil court. The Georgia code has two rape statutes, including:
- O.C.G.A. § 16-6-1 (Rape)
- O.C.G.A. § 16-6-3 (Statutory rape)
Rape means forced sex. In the legal definition contained in Georgia’s official code, “rape” occurs where a person “has carnal knowledge” of either (1) “a female forcibly and against her will” or (2) a female who is less than ten years of age.” Carnal knowledge is “penetration of the female sex organ by the male sex organ.” “Force” can mean many things. It can be something physical like being tied down or held down. Force can also be something emotional, like fear. Just because you were not tied down, or physically overwhelmed does not mean you were not forced. Force can be “reasonable apprehension of harm” – basically this means that if you show you were too scared to say no, you were “forced.” Georgia’s legal definition of “statutory rape” is “sexual intercourse with any person under the age of 16 years and not his or her spouse.” The penalty for this depends on how old the perpetrator (attacker) is. If they are 18 or younger, and no more than four years older than their victim, then the crime is a misdemeanor instead of a felony (punishable by no more than one year in jail). If they are 21 or older, then they may be imprisoned for between 10 and 20 years. Statutory rape can result in either criminal charges or civil claims or both. There are other criminal charges relating to sexual misconduct that do not involve “force” or “carnal knowledge.” Those are:
- O.C.G.A. § 16-6-4 (Child molestation)
- O.C.G.A. § 16-6-5.1 (Sexual assault)
- O.C.G.A. § 16-6-22.1 (Sexual battery)
- O.C.G.A. § 16-6-22.2 (Aggravated sexual battery)
Each of these crimes, if proven, carry a minimum or maximum prison sentence.
In criminal court, “Sexual Assault” is where someone with authority or control has sex with someone they are in charge of. For example, a teacher commits sexual assault when they engage in sexual contact with someone enrolled in their school, a hospital employee commits sexual assault when they engage in sexual contact with a patient of that hospital, a psychologist commits sexual assault when they engage in sexual contact with a patient, a pastor uses his influence over minors. In civil court, “Sexual Assault” is a broader term used in civil cases for all nonconsensual sexual touching. So “rape” is a sexual assault, but not all sexual assaults meet the legal definition of “rape.” Sexual assault claims in civil court are often referred to as “assault” and “battery” claims. “Assault” is the intentional causing of fear or apprehension of unauthorized physical contact. “Battery” goes beyond fear of contact – it is when the unauthorized physical contact actually occurs. This contact doesn’t have to be harmful. Contact may be insulting, unwanted, or humiliating instead. When deciding whether contact was unauthorized, courts use what the law calls a “reasonable person” standard. If a “reasonable person” would be harmed, insulted, humiliated, or not want that physical contact, it meets the legal standard.
What if I did not fight back during the sexual assault or rape? What if I froze instead?
Freezing is a common response to being raped or sexually assaulted. Having this response is not something that a survivor should be ashamed of. We all think of “fight or flight,” but the human brain reacts to trauma in other ways. One way is to freeze. Freezing is a typical neurological (brain-based) response to detecting danger—think deer in the headlights. Fear circuitry in the brain can interfere with our ability to process and respond, leaving us frozen in place. If you did not “fight back” because you froze, or were afraid, or had been threatened, what your attacker did still counts as sexual assault or rape. For instance, some survivors do not fight back because the attacker threatened them, maybe even with a weapon. Other survivors freeze because the sexual assault was so shocking—like when the attacker was a trusted friend, doctor, or massage therapist. In either case, the survivor has a claim for rape or sexual assault. Traditional notions of rape “as seen on TV” show attackers holding victims down and desperate attempts to fight back by the survivor, but in the real world survivors regularly freeze in that moment instead. You are not alone, and you still have a claim for rape or sexual assault.
Under Georgia law, can you be sexually assaulted by someone you are in a relationship with?
Yes. In fact, Georgia law is crystal clear that being in a relationship or being married is not a defense to rape. If your significant other or spouse had sex with you without your consent, or touched you without your consent, you have a claim for rape or sexual assault against them.
Sexual Assault and Rape at the Spa – Massage Envy and Others
Spas and massage parlors have been in the news with increasing frequency because of sexual assaults happening there. By the end of 2017, more than 180 people were reporting that they were sexually assaulted at Massage Envy. Unwanted touching by a masseuse (or massage therapist) creates a claim for sexual assault. We have written a detailed article discussing sexual assaults by massage therapists.