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ARS §13-1404 – Sexual Abuse Charges in Arizona

Being charged with sexual abuse in Phoenix or throughout Arizona is a serious situation. A conviction for this offense could leave you facing years in prison and a lifetime of sex offender registration. A sexual abuse conviction can also result in lifelong collateral consequences that impact your ability to find a job or housing, and it could also negatively impact your relationships with your friends and family.

Watch this video of David Michael Cantor explain Sex Abuse Charges in Arizona.

If you have been charged with sexual abuse, you should not take the matter lightly. You need to seek legal help from an experienced sexual abuse criminal defense attorney at DM Cantor as soon as possible after you have been charged with this offense.


What is Sexual Abuse in Arizona?

In Arizona, sexual abuse is defined as a criminal offense under A.R.S. § 13-1404. Under this statute, sexual abuse occurs when a person intentionally or knowingly does one of the following:

  • Engages in sexual contact with someone who is aged 15 or older without consent, or
  • Engages in sexual contact with a person who is younger than age 15 when the sexual contact only involves the female breast

When the alleged victim is 15 or older, some types of conduct that are punishable under A.R.S. § 13-1404 may also be charged under A.R.S. § 13-1405, which criminalizes sexual conduct with a minor. Under that statute, sexual conduct with a minor occurs when a person engages in oral sex or sexual intercourse with any person who is younger than age 18. If a person has engaged in oral sex with someone who is 15 or older but younger than 18 in Arizona, they could ostensibly be charged under both statutes.

Under A.R.S. § 13-1401, sexual contact means fondling, touching, or manipulating the female breast, anus, or genitals by any body part of the offender, or with any object either indirectly or directly. This also includes causing the alleged victim to engage in this type of contact. These types of cases are sometimes colloquially known as fondling. “Sexual contact” in Arizona excludes sexual penetration.

When the alleged victim is 15 or older, sexual abuse is charged as a Class Five (5)  felony. If the alleged victim is younger than age 15, sexual abuse is charged as a Class Three (3) felony that is punishable under A.R.S. § 13-705 as a Dangerous Crime Against Children offense, or a DCAC offense for short. A DCAC offense conviction carries enhanced penalties.

If you have been charged with a sex crime, you need to talk to an experienced Arizona sexual abuse criminal defense attorney. A sexual abuse charge can carry severe and life-altering consequences. Contact DM Cantor at 602-307-0808 to schedule a free and confidential consultation.

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What are the Penalties for Sexual Abuse in Arizona

The penalties that you might face if you are convicted of sexual abuse under A.R.S. § 13-1404, the penalties that you might face will depend on the age of the victim and whether you have a prior criminal record.

If the alleged victim in your case is 15 or older, then the offense is a Class 5 felony that carries different punishments depending on your criminal record.

For a first offense, you can face the following penalties:

  • Zero days up to 1 year in jail with probation, or;
  • Prison ranging from 6 months to 2.5 years
  • Under A.R.S. § 13-801, a fine of up to $150,000

If you have one prior felony conviction that can be alleged, the prison range will be 1 year to 3.75 years. If you have two prior felony convictions that can be alleged, the prison range will be 3 years to 7.5 years.

If the alleged victim is younger than age 15, sexual abuse is classified as a Class 3 felony and is considered to be a dangerous crime against children (DCAC). This conviction carries the following penalties:

  • Mitigated prison sentence of 2 years
  • Minimum prison sentence of 2.5 years
  • Presumptive prison sentence of 5 years
  • Maximum prison sentence of 7.5 years
  • Aggravated is a sentence of 8.75 years
  • Fine of up to $150,000

If you have a prior conviction of a predicate felony such as another DCAC or certain serious felonies, the sentencing range will increase as follows:

  • Minimum prison sentence of eight years
  • Presumptive prison sentence of 15 years
  • Maximum prison sentence of 22 years
  • Fine of up to $150,000

If you have two prior convictions for predicate offenses, a conviction can result in a sentence of up to a maximum of 25 years in prison and a fine of up to $150,000.

DCAC offense convictions require people who are convicted to serve 100% of their prison sentences. They are not eligible for early release from prison.

While a sexual abuse charge is not considered to be as serious as child molestation or sexual conduct with a minor, it carries very severe penalties and will result in a requirement that you register as a sex offender for the rest of your life. This means that if you are convicted, you will be forbidden from having any contact with a person who is younger than age 18 unless you undergo several testing processes and receive the consent of your probation officer. This prohibition includes contact with your minor children or your grandchildren.


Can You Get Sued for Sexual Abuse?

Before May 2019, child sexual abuse victims had a two-year statute of limitations to file civil sexual abuse lawsuits against their abusers or until they reached age 20. This statute of limitations meant that many people were unable to file civil lawsuits for the sexual abuse that they allegedly suffered as children. However, Gov. Doug Ducey signed H.B. 2466 into law on May 28, 2019. This law extends the statute of limitations for filing civil lawsuits from two years to 12 years and gives victims whose statutes of limitations already expired until Dec. 31, 2020, to file civil sexual abuse lawsuits.

This means that people who have been previously convicted of sexual abuse before this law was passed may face potential civil liability even if the prior statute of limitations has already expired. If you are currently facing sexual abuse charges, you could face civil liability even if you are not ultimately convicted of the criminal offense because the burden of proof for civil sexual abuse cases is lower than it is for criminal charges.

If a jury finds in favor of a civil plaintiff against you in a civil sexual abuse lawsuit, you may be held to be civilly liable and ordered to pay monetary damages to the plaintiff in addition to any criminal penalties that you might also face.


Defenses to Criminal Sexual Abuse Charges

There are several defenses to criminal sexual abuse charges. The particular defenses that your lawyer might raise will depend on the facts and circumstances of what occurred. Some defense strategies might include the following:

  • Introducing evidence of prior false accusations made by the alleged victim
  • Exposing flaws in how the investigation was conducted
  • Arguing a violation of your Miranda Rights
  • Arguing a denial of your right to counsel

It is important to note that under A.R.S. § 13-1404, a person who in a position of trust cannot defend against a sexual abuse charge when the alleged victim is 15 or older by arguing that the victim consented. A person who is in a position of trust is defined under A.R.S. § 13-1401 to include people with the following relationships to the alleged victim:

  • Parent, legal guardian, stepparent, foster parent, or adoptive parent
  • Teacher, coach, or instructor
  • Priest or clergy
  • Someone who is in a romantic relationship with the minor’s parent, stepparent, foster parent, adoptive parent, or legal guardian

If you are not a person in a position of trust, there is a defense available to you under A.R.S. § 13-1407 if the victim is 15 or older and consented to the contact. If you did not know or could not have known that the victim was under age 18 and consented to the contact, you have a lawful defense to sexual abuse. Under Arizona law, people who are younger than age 18 are generally considered to be incapable of consenting to sexual conduct. A.R.S. § 13-1407 creates an exception to this general rule when these specific circumstances apply.

This defense often applies when the minor lies about his or her age to the person who is charged. If you have been charged with sexual abuse of a minor who is aged 15 or older and who consented to the contact, this defense might be available to you if he or she lied about his or her age and you had no reason to know that he or she was underage.

Another statutory defense that might be available to you under A.R.S. § 13-1407 occurs if you are under the age of 19 or are still in high school when the victim is older than 15. In this situation, as long as no more than 24 months separates your ages and the alleged victim consented to the contact, you have a defense to a sexual abuse charge. This defense is meant to protect young couples from being prosecuted for having relationships with each other. Married couples are protected as well.

Another statutory defense that is found in A.R.S. § 13-1407 is available to every sexual abuse charge no matter the age of the victim. This defense is that there was no underlying sexual motivation for the contact. This defense might be raised when the contact with the alleged victim was accidental or was for a different purpose other than sexual gratification, such as medical necessity in an emergency.

Sexual abuse allegations are sometimes made while a divorce proceeding is pending. In these types of cases, an estranged spouse or angry minor is motivated to try to retaliate against the other parent or stepparent by making up false allegations. If your lawyer believes that false allegations may have been made against you, he or she will review how the reports of the contact were made and how the report was prepared. Your attorney might carefully examine how the forensic interview was conducted and review the divorce paperwork. He or she might also ask you to submit to a polygraph test to show that you are innocent. To establish this defense, it will be necessary for your lawyer to interview and cross-examine all of the parties that are involved.

Finally, you may have some constitutional defenses available to you. If you were interrogated by the police after your arrest and were not read your Miranda rights, your attorney may file a motion to ask for any incriminating statements that you might have subsequently made to be suppressed. Similarly, if the police continued to question you after you asked for a lawyer, your lawyer might file a motion to suppress any statements that you made after your right to counsel was denied. When these types of motions are filed, a motions hearing will be scheduled by the court.

You and your attorney will be able to cross-examine the police officers and to present evidence that your constitutional rights were violated. If you win your motions hearing, your statements and any evidence that was subsequently uncovered as a result of what you said will be deemed inadmissible, which could result in a dismissal of the charges against you.


Speak with a Sex Crimes Specialist

If you are facing charges of sexual abuse, getting help from an experienced sexual abuse defense attorney is crucial. Contact DM Cantor today to schedule your free and confidential consultation by calling us at 602-307-0808.

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