Virginia object sexual penetration law is no nonsense, says Fairfax criminal lawyer

Virginia object sexual penetration and other felony sex crime convictions risk prison sentences so long as to theoretically be a deterrent to many people. As a Fairfax criminal lawyer, I know that even consensual sexual activity risks claims of rape and other sexual assault, with that risk increased when the complainant feels regret; feels subsequently ridiculed, or otherwise mistreated psychologically or verbally by the accused; or has committed adultery or other cheating with the accused. Of course, plenty of of sexual activity is not consensual or, at best for the accused, is in a gray area. At minimum, people should tread carefully about engaging in sexual activity with those who have been consuming more than moderate amounts of alcohol, and with people they barely know or have just met. I am a strong believer in having the law protect mutually consensual sexual activity among adults, and I underline mutually consensual.

What does the Virginia object sexual penetration law forbid?

The Virginia object sexual penetration criminal prohibition includes providing that an accused “shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose” where the “act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness’s mental incapacity or physical helplessness.” Virginia Code § 18.2-67.2.

Masseurs are wise to not seek sexual activity during the massage session, and not to let their hands slip while massaging the gluteus maximus

Donald Trump got caught on audio in 2005 exclaiming “Grab ’em by the p*ssy.” If a masseur does that during a massage session, he is cruising for a prosecution bruising under the Virginia object sexual penetration law. Robinson v. Commonwealth of Virginia, Record No. 0036-22-1 (Va. App., Aug. 23, 2022) (unpubslished). Robinson got prosecuted after several complaints from massage clients about putting his hand and finger in their vaginas and anuses, in one instance even with his penis and in more than one instance after the client returned to him and clearly told him to keep his hands away from there. Robinson makes clear that he is not helped on appeal by at least two of his customers’  still tipping him after such sexual assaults. Robinson points out that the Virginia Court of Appeals has previously said that the intimidation element of this crime can be met without any verbal nor physical resistance from the alleged victim, where the accused is the masseur and the complainant is naked on the massage table. Mohajer v. Commonwealth of Virginia, 40 Va. App. 312, 322 (2003) (en banc). Moreover, heading off any notion that vaginal or anal penetration meets the statute’s “bona find medical purpose” exception, two managers from the defendant’s former massage center employer testified that touching a customer’s “vagina, anus, or ‘butt crack'” is not a recognized form of professional massage treatment. Robinson. 

What do I do if I am a massage parlor owner, masseur / masseuses, or anyone else accused of violating the Virginia object sexual penetration law?

Any accusation of violating the Virginia object sexual penetration law is very serious. Do not wait to timely consult with a qualified criminal defense lawyer if such accusations are leveled against you. Professions that necessarily involve touch (including massage, physical therapy and various types of spiritual and energy healing) run the risk of such accusations even when trying to be very careful to avoid running afoul of the law. Certainly, not making any sexual, flirtatious nor romantic comments can help reduce the risk of such accusations, as well as having a witness present who is on the side of such a professional (but how is the fee going to be sufficient to hire such a person?).

A Virginia criminal defense lawyer must not concede a point detrimental to the accused that does not exist in the first place

Robinson points out that this Virginia criminal defendant had sufficiently preserved his appellate issues for appeal. Then  why did Robinson’s lawyer state otherwise? If a Virginia criminal defense lawyer does not think that the appeal issues s/he wants to raise have been preserved by the defendant’s trial lawyer through objection or motion, the lawyer might want to say so and request plain error review. However, it is dangerous for a Virginia criminal defense lawyer to concede a harmful point that does not exist in the first place, as that leaves the judge(s) as the only possible advocate to save the defendant from such a mis-step, when judges are not advocates.

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing your best possible defense against  Virginia DUI, felony and misdemeanor prosecutions. Learn the great things that Jon Katz can do for you and your defense, through a free in-person confidential consultation about your court-pending case, by calling 703-383-1100.