Sex offenses are one of the most difficult areas of criminal law. In Maine, sexual assaults are defined in Chapter 11 of Title 17-A of the Maine Revised Statutes. The offenses listed within Chapter 11 invariably have multiple alternative methods that the offense can be committed. For example, the offense of Gross Sexual Assault under section 253 has no less than 17 different variations all contained within the same section. The general concepts of criminal defense apply to all of these offenses but many of them contain unique elements. For instance, Gross Sexual Assault under subsection 2(K) is defined as "A person is guilty of gross sexual assault if that person engages in a sexual act with another person and the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and suffers from a mental disability that is reasonably apparent or known to the actor. Violation of this paragraph is a Class C crime."
Because many of these defined crimes can appear vague, there is often significant debate during investigations, litigation and trials over whether particular conduct actually meets the statutory definition of the crime. One such definition that I have seen prosecutors, defense attorneys and Judges fight over is Gross Sexual Assault under subsection 2(D) where the state alleges "The other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act." Unconscious is straight-forward but what is physically incapable? I have always argued that the context of the specific language in this subsection taken within the entire statutory framework makes it clear that physically incapable should be understood as a true incapacity, such as paralysis. I have seen prosecutors argue that it amounts to not being able to win in a fight versus the Defendant.
Most regular people think of sexual assaults as being a form of "rape" and that is a loaded word that has nothing to do with the statutory definition of sexual assaults in Maine. The reality is that sexual assaults are often based upon unusual fact patterns that regularly involve the use of alcohol. These unusual fact patterns are then applied to a dense and complex criminal statutory scheme. The result is anything but simple. Sexual assault cases are difficult for the legal system because the facts and law involved are consistently convoluted.
In any situation where there is even the hint of impropriety in conduct, an individual should contact a qualified defense attorney. I have seen too many cases where a Detective elicits a partial confession that the Defendant did not know was a partial confession. Common examples are admitting the other person didn't expressly consent or admitting that their memory was hazy due to alcohol consumption.