ARS § 13-1406 is the Arizona statute that defines the crime of sexual assault (rape). A person commits this offense by intentionally and knowingly engaging in sexual intercourse or oral sexual contact with another person without that person’s consent. A violation of the law is charged as a Class 2 felony and a conviction can lead to seven years or more in state prison.

The language of ARS 13-1406 states that

“a person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.”

Examples

• forcing an ex-girlfriend to have sex.
• a college student having sex with a severely intoxicated guy at a party.
• abducting a person and performing fellatio on her.

Defenses

Persons accused under this statute have the right to challenge the accusation with a legal defense. Some common defenses include defendants showing that they:

• engaged in consensual sex,
• did not have “sex” with the alleged victim, and/or
• were falsely accused.

Penalties

Illegal sexual conduct under this statute is charged as a Class 2 felony (as opposed to an Arizona misdemeanor). The offense is punishable by a prison sentence of seven or more years.

Note that a defendant could receive life in prison if the sexual assault involved the infliction of serious physical injury.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “sexual assault”?

Defendants are guilty of sexual assault charges when:

1. they intentionally and knowingly have sexual intercourse or oral sexual contact with another person, and
2. do so without that person’s consent.[1]

Arizona law says that “sexual intercourse” is penetration into the penis, vulva, or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.[2]

“Oral sexual contact” means oral contact with the penis, vulva, or anus.[3]

An accused performs a sexual activity “without consent” when:

1. the victim is coerced by the use or threatened use of force,
2. the victim cannot consent because of a mental disorder or impairment due to drugs, alcohol, sleep, or other similar condition,[4] and/or
3. the victim is deceived as to the nature of the act.[5]

2. What are the best defenses to ARS 13-1406?

Criminal defense lawyers use a few legal strategies to help defend against sex crimes brought under this statute. Some of these include showing that a defendant:

1. engaged in consensual intercourse.
2. did not have “sex” with an alleged victim.
3. was falsely accused.

2.1 Consent

Defendants are only guilty under ARS 13-1406 if they had sexual intercourse with someone without that person’s consent. A defense is for the accused to show that the alleged victim consented to sex.

2.2 No sexual act

“Sexual intercourse” and “oral sexual contact” have very precise definitions under Arizona law. Therefore, a defense is to show that a defendant’s actions did not rise to the level of a sexual act.

2.3 Falsely accused

Unfortunately, “victims” falsely accuse people of sexual offenses all the time (for example, out of jealousy or revenge). This means it is always a defense for an accused to show that he/she was unjustly blamed.

3. What are the penalties for sexual assault?

A sexual assault conviction is a Class 2 felony punishable by a state prison term. The presumptive term for a person’s first offense under this law is seven years.[6]

Note that the addition of certain facts can increase this term.

For example:

• if a sexual assault involved the intentional or knowing administration of a substance like ketamine hydrochloride without the victim’s knowledge, then the presumptive sentence increases by three years,
• if a defendant has prior felony convictions, then the prison term may increase to over 20 years,
• if the sexual assault involved the infliction of serious physical injury, then the defendant can be sentenced to life in prison, and
• if the age of the victim was 12 years of age or younger, then the defendant can be charged under ARS 13-705, dangerous crimes against children.[7]

In addition to prison time, a person guilty under ARS 13-1406 must:

1. register as a sex offender, per ARS 13-3821, and
2. be placed on the Arizona sex offender registry.[8]

Sometimes sexual assault occurs when an offender also commits a domestic violence crime. In these situations, the accused is sentenced for both:

• the sexual assault, and
• the domestic violence offense.

4. Are there related offenses?

There are three crimes related to sexual assault. These are:

1. sexual abuse – ARS 13-1404,
2. aggravated assault – ARS 13-1204, and
3. public sexual indecency – ARS 13-1403.

4.1 Sexual abuse – ARS 13-1404

ARS 13-1404 is the Arizona statute that says defendants commit the crime of sexual abuse if they intentionally or knowingly engage in sexual contact with:

1. any person who is fifteen or more years of age without consent of that person, or
2. with any person who is under fifteen years of age if the sexual contact involves only the female breast.[9]

“Sexual contact” differs from “sexual intercourse,” as used in ARS 13-1406, and can include sexual acts short of penetration.[10]

4.2 Aggravated assault – ARS 13-1204

ARS 13-1204 is the Arizona statute that defines the crime of aggravated assault. A person commits this offense if he/she assaults another and does so by means of certain aggravating factors (like assaulting someone with a deadly weapon).

Unlike sexual assault, aggravated assault involves aggravating circumstances that are not sexual in nature.

4.3 Public sexual indecency – ARS 13-1403

Per ARS 13-1403, a person is guilty of public sexual indecency if he/she:

1. commits an act of sexual contact, oral sexual contact, sexual intercourse, or bestiality, and
2. does so in front of another person and it is reasonable for the person to be offended by the act.

The crime is different than indecent exposure and note that it includes acts involving both sexual intercourse and sexual contact.

Legal References

[1] Arizona Revised Statutes 13-1406 A.R.S.

[2] ARS 13-1401A4. See also State v. Escalante-Orozco (2017) 241 Ariz. 254.

[3] ARS 13-1401A1

[4] As to impairment by alcohol, see State v. Causbie (2016) 241 Ariz. 173. Alcohol and drug impairment are typically associated with date rape cases.

[5] ARS 13-1401, subsection A7. See also State v. Bolivar (2020) 2020 Ariz. App. LEXIS 765; and, State v. Escalante-Orozco (2017) 241 Ariz. 254.

[6] ARS 13-1406B.

[7] See same. Note that dangerous crimes against children is sometimes referred to as statutory rape.

[8] ARS 13-3821.

[9] ARS 13-1404.

[10] See, for example, 13-1401A3.