A conviction for ANY sexual offense in Maryland carries with it a sex offender registration requirement. If you’ve been charged with such an offense, its important to understand what you are being accused of doing as well as the potential consequences.
What Is Sexual Offense in the 4th Degree, and How Is It Different from 3rd Degree Sexual Offense?
Both the offenses of § 3-308 Sexual offense in the fourth degree (misdemeanor) and § 3-307 Sexual offense in the third degree (felony) prohibit sexual contact with another without the consent of the other, as well as illegal acts of sexual intercourse and “sexual acts.” They differ, however, based upon the circumstances under which this conduct occurs.
(SEXUAL CONTACT) Sexual offense in the 4th degree (misdemeanor) prohibits sexual contact with another without the consent of the other. Unlike the 3rd degree offense, the only element that must be proven to support a conviction for this offense is a lack of consent. Fourth degree sexual offense also prohibits a person from engaging in sexual contact with a student enrolled at a school where the person is in a position of authority and is employed.
Sexual offense in the 3rd degree (felony) further punishes non-consensual sexual contact when committed under certain circumstances, such as when the victim is a substantially cognitively impaired individual, or where the perpetrator uses a dangerous weapon, inflicts serious physical injury, commits the crime while aided and abetted by another, etc.
Sexual offense in the 3rd degree also punishes sexual contact if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim (regardless of the circumstances and regardless of verbal or physical consent).
“Sexual contact” is defined by § 3-301(e)(1) as “an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.”
(SEXUAL INTERCOURSE AND SEXUAL ACTS) Both 3rd and 4th degree sexual offenses prohibit sexual intercourse and “sexual acts” (regardless of verbal or physical consent) based solely upon the age difference between the persons. Unlike the rape offenses, lack of consent or force are not elements that need to be proven in order to sustain a conviction for either of these offenses.
Sexual offense in the 4th degree prohibits sexual intercourse and “sexual acts” with another if the victim is 14 or 15 years old and the person performing the act is at least 4 years older than the victim. If the person performing sexual intercourse or the sexual act is at least 21 years old, however, he or she would be committing Sexual offense in the 3rd degree (felony).
A “sexual act” is defined by § 3-301(d) as including analingus, cunnilingus, fellatio, anal intercourse, and the penetration by an object or a part of an individual’s body into another individual’s genital opening or anus for sexual gratification.
(PENALTIES & SEXUAL OFFENDER REGISTRATION) The 4th degree offense is a 4th degree misdemeanor, is punishable by imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both (unless prior convictions are involved), and carries a 15-year registration requirement (Tier I).
The 3rd degree offense is a 3rd degree felony, is punishable by imprisonment not exceeding 10 years, and can carry either a 25-year registration requirement (Tier II) or a lifetime registration requirement (Tier III) depending upon the factors involved in the crime.
Rape in First Degree Versus Rape in the Second Degree
The offenses § 3-303 Rape in the first degree and § 3-304 Rape in the second degree are offenses that involve sexual intercourse and “sexual acts” (Note that prior to being repealed effective Oct. 1, 2017, these offenses were known as Sexual offense in the first degree, and Sexual offense in the second degree, respectively.)
A “sexual act” is defined by § 3-301(d) as including analingus, cunnilingus, fellatio, anal intercourse, and the penetration by an object or a part of an individual’s body into another individual’s genital opening or anus for sexual gratification.
The similarity between these offenses is that they both prohibit one from engaging in vaginal intercourse or a “sexual act” with another by force, the threat of force, or without the consent of the other. The differences between these offenses involve the conditions under which this conduct is committed.
For example, Rape in the first degree is committed if the perpetrator also uses a dangerous weapon, inflicts serious physical injury, commits the crime while aided and abetted by another, etc. Rape in the second degree is committed if the victim is cognitively impaired, mentally incapacitated, or physically helpless.
Additionally, Rape in the second degree is committed (regardless of the conditions and regardless of verbal or physical consent) if the “victim” is under the age of 14 years and the person performing the act is at least 4 years older than the victim. Both offenses carry a lifetime sex offender registration requirement (Tier III).
Sexual Abuse of a Minor, and Continuing Course of Conduct with Child
Two other commonly charged offenses are § 3-315 Continuing course of conduct with child which punishes prolonged sexual conduct with a child under 14 years of age, and § 3-602 Sexual abuse of a minor which punishes certain sex acts performed on a child where the perpetrator is a family member or household member.
Other Offenses Involving “Minors”
Although the above laws delineate the ages of persons with whom one can legally consent to physical sexual conduct with, these age constraints strangely are not applicable to a few other Maryland laws regarding sexually explicit activity. Because Maryland law still considers a minor to be a person less than 18 years of age, the below acts are illegal when involving a “minor.”
§ 11-207(a)(2). Child pornography – A person may not photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct.
§ 11-208. Possession of visual representation of child under 16 engaged in certain sexual acts – A person may not knowingly possess and intentionally retain a film, videotape, photograph, or other visual representation showing an actual child under the age of 16 years: (1) engaged as a subject of sadomasochistic abuse; (2) engaged in sexual conduct; or (3) in a state of sexual excitement.
§ 11-203. Sale or display of obscene item to minor – A person may not willfully or knowingly display or exhibit to a minor an item: (i) the cover or content of which is principally made up of an obscene description or depiction of illicit sex; or (ii) that consists of an obscene picture of a nude or partially nude figure.
SOURCES: See links in content to reveal the sources from which this information was based upon. Laws used in the writing of this page are current through all legislation from the 2022 Regular Session of the General Assembly.
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Whether you have been charged with a misdemeanor sex offense in Maryland or a serious felony offense involving either a child or adult, a conviction for any of these offenses could carry a lengthy prison sentence as well as sex offender registration requirements.
If you have been contacted by Maryland police, believe that you are under investigation, or simply believe that you are being accused, please call 800-993-0632 or use our contact form. Attorney Pavlinic represents clients statewide, and our phone is answered day and night.
Premier Defense Group
Thomas A. Pavlinic, Lead Counsel
1906 Towne Centre Boulevard, Suite 265
Annapolis, MD 21401
Phone: 800-993-0632
Fax: 410-266-9710
