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REPORT TO CONGRESS: …
Tags: assailants, conclusions, defendant, disparities, federal jurisdiction, federal offenses, federal territory, independent experts, law enforcement act, necessary guidelines, rape cases, rape sentencing, rape victim, sentences, severity, sexual abuse, sexual assault offenses, united states sentencing commission, violent crime control, violent crime control and law enforcement act,Pages: 20
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Created: Thu Nov 7 16:26:16 1996
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REPORT TO CONGRESS:
ANALYSIS OF PENALTIES FOR FEDERAL RAPE CASES
I. INTRODUCTION
A. The Statutory Directive
Section 40112 of the Violent Crime Control and Law Enforcement Act of 1994 directs the
United States Sentencing Commission to submit a report to Congress "containing an analysis of
federal rape sentencing, accompanied by comment from independent experts in the field,
describing
(1) comparative Federal sentences for cases in which the rape
victim is known to the defendant and cases in which the rape victim
is not known to the defendant;
(2) comparative Federal sentences for cases on Federal territory and
sentences in surrounding states; and
(3) an analysis of the effect of rape sentences on populations
residing on Federal territory relative to the impact of other Federal
offenses in which the existence of Federal jurisdiction depends upon
the offense's being committed on Federal territory."1
This Section of the Act Further Directs the Commission to Review and Amend as
Necessary Guidelines for Aggravated Sexual Abuse (§2a3.1) and Sexual Abuse (§2a3.2) to
Address Four Concerns: (1) Enhancing Sentences If More than One Offender Is Involved in the
Offense; (2) Reducing Unwarranted Disparities Between Offenders Who Are Known Versus
Unknown by the Victim; (3) Making Federal Penalties Commensurate with State Penalties; and
(4) Considering the General Problem of Recidivism, Severity of the Offense, and Devastating
Effects on Survivors.
B. Summary of Findings
the Following Conclusions Are Based on the Commission's Review of Federal Sexual
Assault Offenses:
federal rape cases involving multiple assailants are rare. Only five such cases were
sentenced during fy 1993 and each involved two assailants.
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §40112, 108 Stat. 1796, 1903 (1994).
Approximately 15 percent of federal sexual assault defendants had a prior conviction for
sexual misconduct. Average sentences for these defendants are approximately 85 months
longer than defendants without prior sex offense convictions. The longer sentences result
from both a higher criminal history score as well as differences in the statute of
conviction.
The guidelines do not distinguish between defendants known or unknown by victims.
Commission data indicate that this factor is associated with differences in sentence length,
with known defendants receiving, on average, shorter sentences. In 1992, the
Commission amended the guidelines to better ensure that defendants whose actual offense
conduct, as opposed to charged conduct, involves rape receive sentences according to the
severity of their actual conduct. While too early to assess fully this amendment's impact,
preliminary analysis indicates that differences in length of sentence between defendants
known versus unknown to the victim are likely to diminish.
Comparison of current federal rape sentences with state sentences indicates that federal
offenders can expect to serve a longer period of prison confinement.
The average federal sentence imposed during FY 1993 for rape conduct was higher than
the average sentences imposed for robbery or assault cases, but lower than cases involving
murder.
Expert comment received to date has indicated that sentence length should be determined
by the severity of the attack and the extent of the injury to the victim regardless of whether
the assailant was known or unknown to the victim. Additionally, comment indicates that
there appears to be no justification to increase federal sentences for rape and other sex
offenses above current levels.
C. Organization of the Report
Part II of the report provides background on the issues addressed. Part III discusses the
operation of the relevant sentencing guidelines, specifically §§2A3.1 (Criminal Sexual Abuse) and
2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape)). Part IV compares federal and state
penalties for sexual assault, while Part V reviews Sentencing Commission data. Part VI analyzes
public comment and expert opinion on the issues addressed by the report.
II. BACKGROUND
Rape is a growing problem in the United States. There has been some question whether
the dramatic increases in numbers of rapes represent an actual increase or an increased willingness
on the part of victims to report such cases. The numbers, however, are staggering. In 1993,
2
100,200 forcible rapes were attempted and 40,730 were completed.2 From 1981 to 1991, the
nation experienced a 28-percent increase in the number of rapes reported.3 By comparison, the
population of the United States grew by only 11.9 percent during that ten-year period.
A recent National Crime Victimization Survey Violence Against Women
(NCVSVAW) found that rape is seriously underreported to authorities.4 The survey estimates
that 173,000 rapes occurred during 1991, a figure 62-percent greater than the number actually
reported.
The NCVSVAW reports that 55 percent of rapes are committed by someone known to
the victim. Rapes committed by strangers are associated with a greater level of violence than are
rapes in which the victim knew the assailant. Furthermore, rapists who are strangers were more
often armed with a weapon (29%) compared to non-strangers (17%). Sixty percent of women
5
raped by strangers reported injury compared to 40 percent of women raped by non-strangers.
Rape most typically involves a lone offender. According to the NCVSVAW, from 1987 through
1991, 90 percent of rapes involved a single attacker.
Rape crimes account for a small proportion of total convictions processed in state and
federal courts. Rape accounted for 2.2 percent (n=18,024) of the 829,344 state felony
convictions sentenced in 1991.6 Because federal jurisdiction for rape generally is limited only to
those offenses committed on Indian Tribal or federal territory, substantially fewer rape cases are
prosecuted in the federal courts. During 1993, rape conduct was found in 97 sentenced cases,
accounting for just 0.2 percent of the 42,013 federal cases sentenced under the guidelines that
year.
III. OPERATION OF THE SENTENCING GUIDELINES
Rape offense are sentenced under guidelines 2A3.1 (Criminal Sexual Abuse; Attempt to
Commit Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape) or
Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal
Justice 1993 (Kathleen Maguire and Ann L. Pastore, eds., 1994).
Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal
Justice Statistics 1992 (Kathleen Maguire et al. eds., 1993).
Ronet Bachman, U. S. Dep't of Justice, Violence Against Women: A National
Victimization Survey Report (1994).
Id. at 12.
Bureau of Justice Statistics, U. S. Dep't of Justice, supra note 2, at 535, tbl.
5.55.
3
Attempt to Commit Such Acts), and 2A3.4 (Abusive Sexual Contact or Attempt to Commit
Abusive Sexual Contact). Each guideline is discussed in turn.
A. §2A3.1
This guideline applies to convictions for aggravated sexual abuse, 18 U.S.C.§ 2241, the
most serious federal sex offense, and to convictions for sexual abuse, 18 U.S.C. § 2242. These
provisions were codified as part of the Sexual Abuse Act of 1986, which revised and recodified
previously existing federal rape statutes. These sections prohibit engaging in "sexual acts" in the
special maritime and territorial jurisdiction of the United States or a federal prison in
circumstances involving force or threats or the administering of a drug, intoxicant, or other similar
substance. Subsection (c) of section 2241 makes it an offense to knowingly engage in a sexual act
with a person under 12 years old, or to attempt to do so. It proscribes non-coercive conduct in
which "older more mature persons take advantage of others whose capability to make judgments
about sexual activity has not matured."7 Aggravated sexual abuse carries a statutory maximum
term of life imprisonment; sexual abuse has a maximum penalty of 20 years.
Guideline 2A3.1 has a base offense level of 27 and "represents sexual abuse as set forth in
18 U.S.C. § 2242. An enhancement [of 4 levels] is provided for use of force; threat of death,
serious bodily injury, or kidnapping; or certain other means as defined in 18 U.S.C. § 2241. This
includes any use or threatened use of a dangerous weapon."8 The guideline provides for a 2-level
enhancement if the victim is less than 16 years of age and a 4-level enhancement if the victim is
less than 12 years of age. If the victim was in the custody, care, or supervisory control of the
defendant, the guideline provides for a 2-level increase. The guideline also provides for sentence
enhancements for permanent, life threatening, or serious bodily injury, and abduction. For any
given case, the sentencing guidelines call for life imprisonment if each adjustment is applied,
regardless of prior criminal history. Finally, the guideline provides for a cross-reference to the
murder guideline if the victim was killed under circumstances that would constitute murder under
18 U.S.C. § 1111 (first degree murder).
B. §2A3.2
As originally enacted in 1986, criminal sexual abuse of a minor (statutory rape) carried a
statutory maximum penalty of five years. In 1990, Congress increased the statutory maximum to
15 years. The commentary to §2A3.2 states that "[t]his section applies to sexual acts that would
be lawful but for the age of the victim." The guideline's base offense level of 15 can be increased
by two levels if the victim was in the custody, care, or supervisory control of the defendant. The
H. R. Rep. No. 594, 99th Cong. 2d Sess. 15 (1986) reprinted in 1986
U.S.C.C.A.N. 6186, 6195.
USSG §2A3.1, comment. (backg'd.)
4
guideline also provides a cross-reference to §2A3.1 if the offense involved criminal sexual abuse
or attempt to commit criminal sexual abuse.
C. §2A3.4
This guideline applies to convictions for abusive sexual contact, 18 U.S.C. § 2244. This
statute, like the others promulgated under the Sexual Abuse Act of 1986, has limited federal
jurisdiction and proscribes conduct involving "sexual contact rather than sexual act." "Sexual
contact" is defined as the "intentional touching either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 9 The statutory
10
maximum penalties are ten years' imprisonment if to do so would violate section 2241; three
years' imprisonment if to do so would violate section 2242; two years' imprisonment if to do so
would violate subsection (a) of section 2243; and six months' imprisonment if to do so would
violate subsection (b) of section 2243.
The base offense under §2A3.4 is 16 if the offense is committed by means set forth in
18 U.S.C. § 2241 (a) or (b); 12 if the offense is committed by the means set forth in 18 U.S.C.
§ 2242; and 10 otherwise. The guideline also provides a 4-level enhancement if the victim is
under 12 , and a 2-level enhancement if the victim was at least 12 but under 16. A 2-level
enhancement is provided if the victim was in the custody, care, or supervisory control of the
defendant. The background commentary suggests a 6-level downward departure in cases of
11
consensual sexual contact, "[i]f the defendant and the victim are similar in sexual experience."
The guideline also provides for a cross reference to §2A3.1 if the offense involved criminal sexual
abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. §§ 2241 or 2242).
The specific factors delineated by Congress for review in this report are currently
addressed by the guidelines in the following manner:
1. Multiple Assailants
The sexual abuse guidelines do not provide enhancements based solely upon the fact that
multiple assailants committed the offense. If, however, a defendant played a leadership role in a
sexual offense involving multiple assailants, an enhancement under §3B1.1 (Aggravating Role)
18 U.S.C. § 2245 (3).
The maximum penalty was increased from five years to ten years in
1988.
Background Commentary to §2A3.4.
5
would be applicable. The role enhancement can increase a defendant's sentence between 25 and
50 percent.
2. Known versus Unknown Assailant
The guidelines do not distinguish between offenders known to the victim versus those who
are not. Currently, the aggravated sexual abuse guideline provides an enhancement for an abuse
of a position of trust when the victim is in the "custody, care, or supervisory control of the
defendant."12
3. Offender Recidivism
The guidelines address recidivism concerns in Chapter Four (Criminal History and
Criminal Livelihood) by assessing the defendant's criminal record, including the number of prior
convictions, the length of prior sentences, their recency, whether the current offense occurred
while the defendant was under criminal justice supervision for a prior conviction, and whether a
prior conviction was for a crime of violence (§4A1.1). Additionally, the career offender provision
in Chapter Four provides enhanced penalties for repeat offenders who engage in crimes of
violence or controlled substance offenses (§4B1.1). Crimes of violence include sexual abuse
offenses committed with violence or force or threat of force (§4B1.2(1)). To be classified as a
career offender under the guidelines, the defendant must have committed a qualifying violent or
drug offense and have at least two prior convictions for some combination of crimes of violence
or controlled substance offenses.
To illustrate the impact of the criminal history assessment, an offender in the lowest
criminal history category sentenced under guideline 2A3.1 has a sentencing range of 70-87
months. If this offender instead has a criminal history score in the highest category, the applicable
guideline range would increase to 130-162 months. If the offender is classified as a career
offender, the guideline range would increase to 360 months to life imprisonment. The criminal
history guidelines do not specifically take into account similarity between the current offense and
past offenses, although in certain situations an additional increase under §4A1.1(f) for prior
violent offenses would pertain. Consequently, although the sexual nature of any prior offense is
not considered specifically, the guidelines address, to a limited degree, prior violence in general.
IV. COMPARISON OF FEDERAL AND STATE PENALTIES FOR
SEXUAL ASSAULT
See USSG §2A3.1(b)(3). For cases illustrating the application of this
enhancement, see U.S. v. Merritt , 982 F.2d 305 (8th Cir. 1992), cert. denied, 61
U.S.L.W. (1993) and U.S. v. Castro-Romero, 964 F.2d 942 (9th Cir. 1992).
6
Sections 2241-2245 of title 18, United States Code, criminalize sex offenses committed
within federal jurisdiction. These statutes cover a variety of behavior including rape, sexual
contact, incest, and child molestation. Section 2241, Aggravated Sexual Abuse, covers a
spectrum of behavior ranging from sexual contact (touching) to sexual penetration and is
distinguished from other federal sex offenses by the level of violence or threat of violence
involved.
State sex offense laws cover a wide range of behavior that can be broader than that
captured by federal statutes. Each state has a specific criminal statute to address this offense
conduct, although it may be referred to by other terms (e.g. sexual assault, sexual battery, criminal
sexual conduct, gross sexual imposition). The common element across all statutes is forcible
sexual penetration, however slight. Additionally, states classify and penalize criminal sexual
offenses using a variety of schemes, making comparison across states and to the federal system
difficult. A number of states classify sexual offenses by degree or severity. This classification is
dependent upon a number of factors, including possession of a weapon, serious bodily injury, age
of the victim, multiple offenders, mental or physical capacity of the victim, or multiple instances of
rape.
A comparison of rape penalties is further complicated by the variations in state sentencing
systems. Some states use an indeterminate sentencing structure under which offenders generally
receive a sentence range and a parole system determines actual release dates. Some states have
sentencing guidelines that operate in conjunction with an indeterminate structure, and others have
a determinate structure under which offenders receive a fixed sentence and no parole. Other
states have some combination of determinate sentences and parole. Yet other states have
sentencing guidelines that operate under a determinate structure. The federal system has
sentencing guidelines, determinate sentences, and no parole. This makes a comparison of federal
and state penalties difficult. For example, in states that have some form of indeterminate
sentencing, penalties imposed for rape may appear to be more severe than their federal
counterpart. However, a defendant sentenced to 20 years in a state with a parole system may
actually serve only six years, whereas a defendant who receives a 20-year federal sentence will
serve approximately 17.13
Of the 50 states, two territories, and the District of Columbia surveyed, 20 (37.0%)
provide for a maximum term of life imprisonment for rape. Twenty-four (45.3%) have a
maximum penalty of 20 years or more. The federal system provides a maximum punishment of
life imprisonment without possibility of parole for offenders convicted of aggravated sexual
assault.
Federal defendants serving imprisonment sentences of more than one year can
qualify for a "good time" reduction of up to 54 days per year. See 18 U.S.C. §
3624(b).
7
Several states enhance rape sentences for defendants with prior convictions for sex
offenses. Such convictions generally are accounted for by either an increase in the degree or
severity level of the crime (e.g., from rape to aggravated rape, or from sexual assault in the
second degree to sexual assault in the first degree) or an increase in the minimum or maximum
term of imprisonment available. In most cases, states included these enhancements either within
the rape offense statute or within a separate penalty provision for habitual or repeat sex offenders.
States that do not have habitual or repeat sex offender provisions often have a general habitual
offender statute that enhances the available term of imprisonment depending on the number of
prior felony or violent felony convictions.
V. SENTENCING COMMISSION DATA ANALYSIS
All cases with a conviction for sexual abuse in the FY 1993 Commission dataset were
reviewed and coded for this report. In addition, cases involving convictions for other crimes of
violence were included to determine the extent to which a crime that involved sexual abuse may
result in a conviction under some other statute unrelated to sexual abuse. Finally, pornography
14
cases were reviewed to determine whether sexual assault or abuse occurred in those cases.
Each case was reviewed to code additional defendant and victim information, including:
prior sexual misconduct (more broadly defined than that which is countable under the guidelines'
criminal history score); date of last prior sexual conviction; length of prior sentences for sexual
abuse convictions; whether the defendant was known or unknown to the victim; number of
offenders; presence of sexually transmitted diseases; and use of a weapon. Victim-specific
information coded included age, whether the victim was in the care of defendant, and injuries
sustained. Information describing the geographical location of the crime also was coded.
Before reporting the findings, it is important to emphasize again the context in which
federal sexual offenses occur. In order to be prosecuted in federal court, the offense must occur
on a federal reservation, in a federal prison, or otherwise within the special maritime or territorial
The following selection criteria were employed:
1) Cases involving the sexual abuse guidelines, namely §§2A3.1
(Criminal Sexual Abuse: Attempt to Commit Criminal Sexual Abuse),
2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape) or Attempt to
Commit Such Acts), and 2A3.4 (Abusive Sexual Contact or Attempt to
Commit Abusive Sexual Contact);
2) Cases involving 18 U.S.C. §§ 2241 (Aggravated Sexual Abuse), 2242
(Sexual Abuse), 2252 (Certain Activities Relating to Material Involving
the Sexual Exploitation of Minors), and 2258 (Failure to Report Child
Abuse) as a statute of conviction;
3) Cases in which the offense type is sexual abuse; and
4) Cases that involve §§2A1.4 (Involuntary Manslaughter), 2A2.1
(Assault with Intent to Commit Murder: Attempted Murder), 2A2.2
(Aggravated Assault) and 2A2.3 (Minor Assault) as the guideline that
drives the sentence.
8
jurisdiction of the United States; otherwise, sexual offenses are state crimes. In general, this
means that federal sexual offenses take place on Native American lands, military installations,
national parks, and territorial property. Consequently in FY93, 97 guideline cases were identified
in which a rape occurred as part of the offense behavior.15 Sixty-nine of the 97 sexual assault
cases (70.4%) occurred on Native American lands; ten cases (10.2%) occurred on military
installations; and two (2.0%) occurred in national parks. For the remaining 18 cases (18.4%),
location could not be determined.
Table 1 displays the various guidelines applied based upon the statutes of conviction for
94 cases in which sentencing information was available. The majority of cases (58.2%) were
sentenced under guideline 2A3.1 (Criminal Sexual Abuse), with an average sentence of 189.4
months. The next most frequently applied guidelines were §§2A3.4 (Abusive Sexual Contact,
22.0%) and 2A3.2 (Statutory Rape, 14.3%). Average sentences for these offenses were 22.4 and
35.9 months, respectively. As the data suggests, substantial variation exists in length of sentence
based upon the guideline applied.
All subsequent analyses are based upon these 97 cases; however, missing
information for some analyses reduces this number. For each analysis, the number
of available cases will be noted. The small number of cases severely limits the
ability to perform robust analysis while controlling for offense and offender
characteristics.
9
Table 1
GUIDELINES APPLIED AND AVERAGE SENTENCES
FOR FEDERAL SEXUAL ASSAULT CASES *
Special Coding Project
(October 1, 1993, through September 30, 1994)
SENTENCE
(in months)
GUIDELINE APPLIED NUMBER PERCENT MEAN MEDIAN
TOTAL 91 100.0 127.5 97.0
Criminal Sexual Abuse 53 58.2 189.4 168.0
Abusive Sexual Contact 20 22.0 22.4 18.0
Sexual Exploitation of a 2 2.2 142.5 142.5
Minor
Statutory Rape 13 14.3 35.9 24.0
Aggravated Assault 2 2.2 75.0 75.0
Kidnapping 1 1.1 211.0 211.0
*Six cases were exclud due to one or more of the following conditions: missing sentence information (3) or missing
ed
guideline applied information (3).
SOURCE: U.S. Sentencing Commission, 1993 Data File, MONFY93.
A. General Demographic Characteristics
All 97 defendants in the study were male with an average age of 31.2 years. The youngest
offender was 19 years old and the oldest was 71. Sixty-nine defendants (71.1%) are Native
Americans. Twelve (12.4%) defendants are White, 11 (11.3%) are Black, and the remaining five
are Asian (5.2%). Approximately half (49.5%) of the defendants reported not completing high
school. Only one defendant (1.1%) completed college. Forty-two percent of the 97 federal
sexual assault cases occurred in two federal judicial districts (Arizona, n=23, 23.7% and South
Dakota, n=18, 18.6%). Twenty-six districts account for the remaining 56 cases, with each of
these districts reporting five or fewer cases.
10
1. Number of Assailants
Consistent with the research literature, federal rape crimes most often involve a single
assailant. Of the 97 sexual assault cases, 92 (94.8%) involved one offender, with the remaining
five involving two attackers. In four of the five multiple assailant cases, the victim knew the
defendant. Two of the rapes occurred on Native American lands and one occurred on a military
base. For two cases, the location of the rape was reported as "on a road," but the type of federal
lands could not be determined. Age of the victim was reported in four of the assaults (ages 10,
15, 26, 27 years).
2. Victim Bodily Injury
The 94 sexual assault cases with sufficient information available were sentenced under six
different guidelines. Fifty-three of the cases (56.4%)16 were sentenced under guideline 2A3.1
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). This guideline contains
enhancements for serious and permanent or life threatening bodily injury to the victim. Of the 53
cases, seven (13.2%) received sentence enhancements for bodily injury. In four of these seven
cases, the victim's age was reported (4, 10, 11, 15 years). The 15-year-old victim was assaulted
by two assailants. In six of the seven cases, the defendant was known to the victim, and two of
these six received a "custody and care" enhancement suggesting the perpetrators was a family
member or daycare provider.
3. Defendant Recidivism
Ninety-five cases had information on the offender's criminal history score. For these
cases, the average score is 1.9 (median score=1), suggesting that, for the most part, these
defendants had little or no prior criminal record. In 13 of 93 cases (14.0%), the defendant had a
prior criminal history of sexual misconduct and complete sentencing information was unavailable.
The average sentence for these cases was 191.7 months, compared to an average sentence of
111.2 months for cases in which no prior criminal history of sexual misconduct was noted (n=80).
None of the offenders was classified as a career offender.
4. Known versus Unknown Defendants
The victim knew the defendant in 83.6 percent of the cases (n=81). This is significantly
higher than the 55 percent reported by the NCVS-VAW data.17 In 14 cases (14.3%), the
defendant was unknown, and in two cases (2.0%) this information could not be determined. The
average prison sentence imposed on defendants known to the victim was 103.6 months (n=79).
Three of the 97 original cases lacked complete sentencing information, resulting
in a sample size of 94.
Bureau of Justice Statistics, U. S. Dep't of Justice, supra note 4, at 11.
11
This is substantially less than the average of 253.7 months (n=14) imposed for cases in which the
defendant was unknown to the victim.
Because of the small number of cases in which the defendant was not known to the victim,
robust analyses that simultaneously control for other factors associated with sentence length are
not possible. However, given this limitation, it does not appear that difference in average
sentence length can readily be explained by differences in bodily injury to the victim or the
presence of prior sex offenses. The number of prior criminal convictions of any type may account
for a portion of this difference. Under the sentencing guidelines, offenders are assigned a criminal
history category from one to six based upon the seriousness and recency of past criminal
convictions; the higher the category, the higher the range of sentence. Generally, unknown
defendants receive longer prison sentences than known defendants at each base offense level.
However, contributing to the overall difference in average length of sentence between known and
unknown defendants is the greater proportion of unknown defendants who merit higher criminal
history scores. Among defendants unknown to the victim (n=14), five (35.7%) had a criminal
history category of five or six and are thus subject to longer sentences under the applicable
guideline range (average sentence=442.6 months). In comparison, only three of 78 (3.8%)
defendants who were known to the victim have a criminal history category of five or six (average
sentence=190 months).
Examining offense of conviction provides additional information on the differences in
sentence length. Table 2 presents information on the distribution of sentencing guidelines applied
for defendants, known and unknown to the victim. The first three guidelines presented are
specific to sexual offenses. Substantial differences exist in the base offense level depending on the
18
guideline applied. Criminal Sexual Abuse, with a base offense level of 27, has a substantially
higher offense level than either Statutory Rape19 or Abusive Sexual Contact.20 For cases in which
the defendant is unknown to the victim, 12 of 13 (92.3%) of the defendants are sentenced under
the more punitive guideline. For defendants known to the victim and sentenced under any sex
crime guideline, a much smaller proportion of cases (41 of 73, 56.2%) was sentenced under this
more punitive guideline.
Thirty-two defendants, known to the victim, were sentenced at the lower base offense
levels listed in the table (levels 10 through 16), while only one defendant (7.7%), unknown to the
Base offense level of 27 provides a guideline sentencing range of 70 to 87
months for defendants with a criminal history score of 1.
Base offense level of 15 provides a guideline sentencing range of 18 to 24
months for defendants with a criminal history score of 1.
Base offense level can range between 10 (guideline sentencing range of 6 to 12
months for defendants with a criminal history score of 1) and 16 (guideline
sentencing range of 21 to 27 months for defendants with a criminal history score of
1).
12
victim, was sentenced at these lower levels. For these cases, the average sentence imposed was
32 months if the defendant was known compared to 18 months for the sole unknown defendant.
Forty-four defendants, known to the victim, were sentenced under guidelines with base offense
levels at level 24 or above; a level comparable to the majority of cases in which the defendant was
unknown to the victim. For these defendants, the average sentence imposed was 159.6 months,
compared to a substantially longer average sentence of 292.8 months if the defendant was
unknown.
As described in Section III, guidelines 2A3.2 and 2A3.4 provide for a cross reference to
§2A3.1 if the offense involved criminal sexual abuse or attempts to commit criminal sexual abuse.
This is particularly relevant to known versus unknown defendants because as reported above,
known defendants are less likely to be sentenced under the more punitive guideline. The cross
reference to the more punitive guideline was created as a result of a prior Commission review of
sexual offense cases. The review found that "cases sentenced under §2A3.2 and §2A3.4 clearly
involved conduct that would more appropriately be covered under an offense guideline applicable
to more serious sexual abuse cases".21 The effective date for application of the cross reference
was November 1, 1992. Of the 53 federal cases sentenced under §2A3.1 during 1993, seven
(13.2%) were the result of application of the cross reference. Information on date of offense was
available in 40 of the 43 cases identified as containing rape conduct but not sentenced under
§2A3.1. In 36 (90.0%) of these cases, the offense conduct occurred prior to the effective date of
the cross reference. Of the four cases in which the offense conduct occurred after November 1,
1992, three contained factors suggesting the application of the cross reference was not
appropriate. 22
Federal sexual assault sentences, therefore, differ by whether the defendant was known
versus unknown to the victim. These differences appear to be the result of differences in criminal
history category (with more unknown defendants having a higher category than known
defendants) and differences in statutes of conviction (with more unknown defendants being
convicted of statutes that result in the application of higher base offense levels). The development
of the cross reference to §2A3.1 attempts to punish offenders consistent with actual offense
conduct. The Commission's review of cases indicates that it has been applied appropriately.
Because the cross reference has been in place a relatively short period of time, it is premature to
evaluate the impact on sentence length and its potential impact on sentence differences between
offenders who are known versus unknown to the victim.
5. Comparison of Federal and State Sentences for Sexual Assault
USSG, App. C, Amend. 444.
Of these three cases, in one no penetration occurred; in a second the offense was
reported after November 1, 1992 but the conduct occurred one year earlier; and in
the third the victim was intoxicated and could not remember if she consented to the
act.
13
Federal sentences imposed under the guidelines are not subject to reduction through
parole. In general, the difference between the sentence imposed and the sentence actually served
reflects only the earned accrual of good conduct time credit not exceeding 54 days per year
(15%). Most states continue to provide early release through parole or have greater availability
of good conduct or program-participation credits through which sentences can be shortened.
These differences make state/federal comparisons in sentence length difficult. Comparisons of
sentences imposed will not distinguish these practices and may result in a conclusion regarding
difference (or direction of difference) that does not reflect accurately the amount of time a
defendant will be imprisoned. A better comparison is an estimate of time served in prison.
Comparison of federal rape sentences with state sentences nationally can be performed
using a recent national survey of federal and state prison inmates conducted by the U.S.
Department of Justice, Bureau of Justice Statistics (BJS). This 1991 survey interviewed
approximately 14,000 state prisoners and 6,600 federal prisoners, selected as representative of
the total offender population in the United States in 1991.23 Because the data were aggregated
from a nationwide sample, information on specific state practices is unavailable as is information
that would permit comparison of specific offense behaviors or offender characteristics.
The BJS survey collected data on state sentences and estimates of time to be served for
various offenses, including "sexual assault." Its information on state sentences was compared to
Commission data on rape offenders sentenced during FY 1993. The BJS estimate of average time
to be served by state inmates for sexual assault is 95 months. This compares to Commission data
on 1993 federal inmates of an average time to be served of 106 months. This difference of 11
months represents a 12-percent differential in sentencing. That is, federal rape offenders will
serve 12 percent more time in prison than their counterparts sentenced at the state level. Because
application of the cross reference to §2A3.1 generally will lengthen sentences, this differential in
time to be served may increase as the number of cases eligible for application of the cross
reference increase.
The largest proportion of federal rape offenders are sentenced in two states -- Arizona
(n=23, 23.7%) and South Dakota (n=18, 18.6%). These two states were polled, and state
sentencing information on rape offenders was gathered.
Arizona recently has enacted truth-in-sentencing provisions eliminating parole in all cases,
and in select crimes eliminating the application of sentence reduction through good conduct
credits. Sexual assault is one of the specific offenses for which sentence reduction through
application of good conduct credits has been eliminated. Since these changes have been
Caroline W. Harlow, U. S. Dep't of Justice, Comparing Federal and State
Prison Inmates, 1991 5, tbl. 6 (1994).
14
implemented, 77 cases have been sentenced for sexual assault; the mean24 sentence imposed (and
to be served in its entirety) is 9.6 years.25 This is nine percent longer than the estimated 8.8 years
(106 months) that federal rape offenders serve. However, the information on sexual assault
sentences in Arizona and on federal rape sentences was derived by different methods. Data on
Arizona sentences include only those cases sentenced for a conviction of sexual abuse. The
Commission's dataset includes cases sentenced under this charge as well as other, less serious
charges in which rape conduct was present. The Commission's goal for use of its dataset was to
examine sentencing factors associated with rape conduct regardless of the ultimate charge of
conviction. A more appropriate comparison to the Arizona data would be to limit federal cases to
only those defendants sentenced for criminal sexual abuse (n=53). These cases are estimated to
serve an average sentence of 13.4 years (161.0 months). Using these more comparable cases,
federal sentences are 40 percent longer.
South Dakota provided information from an "in-house" project titled "South Dakota Sex
Offender Project," conducted during 1987 through 1989.26 This project was conducted similarly
to the federal case analysis described in this report. That is, cases were identified to include rape
conduct regardless of the ultimate charge of conviction. The authors report that the median
sentence for rape offenders included in the study was 6.4 years. The 91 federal defendants
sentenced during FY 1993 will serve a median sentence of approximately 6.9 years (82.4 months)
after sentence reduction for good conduct credits. South Dakota has indeterminate sentencing
and the availability of parole. Without accounting for parole or the application of good conduct
credits in the South Dakota data, federal rape offenders currently serve a slightly greater amount
of time.27 To the extent that parole or the application of good conduct credits reduces rape
The term "mean" is statistical nomenclature for average. This more scientific
term is used here to distinguish the values used to compare federal sentences with
sentences as reported by Arizona and South Dakota. Arizona provided mean
(average) sentence information and South Dakota provided median sentence
information. Both are used in statistics to summarize the central tendency of a
distribution of numbers. Each is slightly different. It is appropriate to compare
"mean" score with "mean" score or alternately "median" score with "median" score,
however, "mean" score should not be compared with "median" score.
Roy Holt, Director, Statistical Analysis Center, Arizona Criminal Justice
Commission. Personal communication.
J. Whipple, G. Leonardson, M.Terca, D. Hollingsworth, T. Del Grosso, and D.
Gromer, "South Dakota Sex Offender Project," South Dakota Statistical Analysis
Center, Division of Criminal Investigation, Office of the Attorney General,
Criminal Justice Training Center, Pierre, South Dakota. (1990).
The South Dakota Board of Pardons and Parole could not provide an estimate of
time to be served by rape offenders. However, they reported that generally, rape
offenders are not paroled without completing their specialized treatment program
which has very limited access. Additionally, they reported that after completing
this program, a rape offender would not be considered for parole until the last two
15
sentences in South Dakota, differences in length of sentence served in prison between that system
and the federal system will increase.
In summary, comparison of current federal rape sentences with state sentences indicates
that federal offenders can expect to serve a longer period of prison confinement. Furthermore, it
is expected that average federal sentences for rape will increase as a greater proportion of cases
become subject to the 1992 cross-reference amendment. Assuming no change in state sentencing
practices, it is anticipated that differences between federal and state rape sentences will become
larger.
6. Comparison of Rape Sentences with other Federal Crimes in which
Jurisdiction depends on the Offense being Committed on Federal
Land
Federal sentences imposed for crimes in which federal jurisdiction results from the crime's
commission on federal lands are presented in Table 3. The crimes are ranked from the highest
sentence to the lowest sentence. The average federal sentence imposed during FY 1993 for rape
conduct was higher than the average sentences imposed for robbery or assault cases and lower for
cases involving murder. As a greater proportion of cases become subject to the 1992 cross
reference amendment, it is expected that rape sentences may grow closer in length to murder
sentences and further in length from robbery and assault cases.
VI. EXPERT AND PUBLIC COMMENT
In response to congressional directive to seek comment from independent experts, the
Commission has sought input from individuals and organizations with expertise and interest in the
above topics. To date, comment has been received from the Rape Crisis Center; National
Organization for Victim Assistance; Crime Victims Research and Treatment Center; and the
American Civil Liberties Union (ACLU).
Comment from the victim assistance organizations focused on the issue of differential
sentencing for defendants who are known versus unknown to the victim. Each commented that
28
distinctions in sentencing based upon this factor are unwarranted. Two of these organizations
also commented that sentence length should be based upon the extent of the injury to the victim
regardless of the relationship between the victim and the assailant.
or three years of the sentence.
National Organization for Victim Assistance and Crime Victims Research and
Treatment Center.
16
Comment from the ACLU addressed the issue of comparability of sentencing for rape and
other sex offenses compared to similarly aggravated crimes. Their analysis concluded that: "[i]n
the absence of any indication that sentencing for rape and other sex offenses is lenient or treated
less seriously than other similarly aggravated offenses, there is no justification for increasing the
sentences for these offenses"29
Contact has been made with seven additional individuals or organizations with expertise
and interest in federal sentencing of rape defendants. To date that comment has not been
received.
Through The Federal Register, additional comment was solicited on these issues as well as
several related issues:
Issue for Comment: Section 40112 of the Violent Crime Control and Law
Enforcement Act of 1994 directs the Commission to conduct a study and
consider appropriate amendments to §§2A3.1 (Aggravated Sexual Abuse) and
2A3.2 (Sexual Abuse) to address four concerns: (1) enhancing the sentence
if more than one defendant is involved in the offense; (2) reducing
unwarranted disparity between defendants who are known by the victim and
those who are unknown by the victim; (3) making federal penalties
commensurate with state penalties; and (4) considering the general problem
of recidivism, severity of offense, and devastating effects on survivors. The
provision also requires the preparation of a report to Congress analyzing
federal rape sentences and obtaining comment from independent experts on:
(1) comparative federal sentences between assailants who were known versus
unknown to their victims; (2) comparative federal sentences with those of
states; and (3) the effect of rape sentences on Native American and U.S.
military populations relative to the impact for other federal offenses on these
populations. This report is to be submitted to Congress by March 13, 1995.
The Commission invites comment on any aspect of this directive or any
amendment to the guidelines appropriate to address this directive.
Specifically, comment is requested on whether §2A3.1 (Criminal Sexual
Abuse) should be amended to include an enhancement for more than one
assailant. If such a factor is added, comment is requested as to the weight to
be given to that factor and how its inclusion should affect the application of
an adjustment for the defendant's role in the offense under Chapter Three, Part
Submitted in response to January 13, 1995 request for comment. Memorandum
dated November 14, 1990 titled Are rape and other sex offenses treated as
seriously as similarly aggravated crimes in sentencing and length of time served in
jail and prison? drafted in response to an earlier version of the Violence Against
Women Act.
17
B. Comment is further invited as to whether the guidelines adequately
account for the seriousness of the sexual abuse offense (including the effects
on the victim of sexual abuse) and how any suggested changes should be
applied. Currently, through special offense characteristics and other
instructions in §2A3.1, the guidelines consider the degree of bodily injury, age
of victim, sexual abuse of a person held within a correctional facility, use of
a dangerous weapon, circumstances in which the defendant holds a
supervisory or custodial role, circumstances in which the victim was abducted,
and death of the victim. The Commission invites comment on additional
factors that might appropriately be considered and the weights such factors
should be given.
As part of the ongoing, 1994-95 amendment process, the Commission carefully will consider
the advice of experts, written public comment, and testimony at its March 14, 1995, public hearing
on proposed amendments before making final decisions on these issues. Should this process support
the need for amendments to address more effectively the harms associated with sexual assaults, the
Commission intends to promulgate any needed amendments and submit them to Congress for review
no later than May 1, 1995.
18
Table 2
GUIDELINES APPLIED FOR SEXUAL ASSAULT CASES
BY VICTIM'S KNOWLEDGE OF THE DEFENDANT *
Sex Crime Coding Project
(October 1, 1993, through September 30, 1994)
VICTIM'S KNOWLEDGE OF DEFENDANT
DEFENDANT UNKNOWN DEFENDANT KNOWN
Base Mean Mean
Offense Sentence Sentence
GUIDELINE Level Number Percent (in months) Number Percent (in months)
TOTAL 13 100.0 271.7 76 100.0 105.8
Criminal Sexual Abuse 27 12 92.3 292.8 41 53.9 159.1
Statutory Rape 15 0 0.0 - 12 15.8 37.4
Abusive Sexual Contact 10-16 1 7.7 18.0 18 23.7 23.6
Aggravated Assault 15 0 0.0 - 2 2.6 75.0
Kidnapping 24 0 0.0 - 1 1.3 211.0
Sexual Exploitation of a 25 0 0.0 - 2 2.6 142.5
Minor
)))))))))
*Eight cases were excluded due to one or more of the following conditions: missing
guideline applied information (3), missing prison sentence information (3), or missing
information as to the defendant's knowledge of the victim (5).
SOURCE: U.S. Sentencing Commission, 1993 Data File, MONFY93.
Table 3
COMPARISON OF SELECTED FEDERAL SENTENCES IN WHICH
FEDERAL JURISDICTION IS THE RESULT OF THE LOCATION OF THE CRIME
(October 1, 1993, through September 30, 1994)
AVERAGE ESTIMATE OF SENTENCE
SENTENCE IMPOSED TO BE SERVED
CURRENT OFFENSE Mean Sentence (in months) Mean Sentence (in months)
Murder 311.0 270.9
Sexual Assault 124.8 106.0
Robbery 74.8 65.3
Assault 61.1 51.1
)))))))))
SOURCE: U.S. Sentencing Commission, 1993 Datafile, MONFY93