Sexual offense in the fourth degree (Md. Code, Crim. Law § 3-308) is a misdemeanor sexual offense charge in Maryland. The fact it is labeled a misdemeanor may make the charge sound less serious, but, this is not the case. There are serious consequences to being charged and convicted of sexual offense in the fourth degree.
What is Sexual Offense in the Fourth Degree?
Sexual offense in the fourth degree criminalizes four main types of conduct. The first is engaging in sexual contact with another, without the consent of the other. The second is engaging in a sexual act with another, if the other person is fourteen or fifteen years old, and the person performing the act is at least four years older than the other person.. The third act is vaginal intercourse with another, if the other person is fourteen or fifteen years old and the person performing the act is at least four years older than the other person.
The final type of conduct is conduct between a person in a position of authority and a minor. Sexual offense in the fourth degree also criminalizes sexual contact, sexual acts, and vaginal penetration between people in a position of authority (the person must be at least 21 years old and working or volunteering for a public of private school, or at least 22 years old and working or volunteering for a program, and has supervision, works with, or interacts with minors).
What is the criminalized conduct?
The first type of criminalized conduct is sexual contact with another, without the consent of the other. A sexual contact is defined by Md. Code, Crim. Law § 3-301(e) as the 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. The code explicitly states that sexual contact does not include a common expression of familial or friendly affection or an act for an accepted medical purpose.
Importantly, the sexual contact needs to be intentional. This means the person initiating the contact meant to touch the other person in the genital, anal, or other intimate area. Accidently falling into someone and touching their groin is not sexual contact under the statute. Additionally, the contact must not have been consented to. The prosecutor has to prove beyond a reasonable doubt that the victim did not consent to the sexual contact. There is no age requirement to be charged and convicted for
The second type of criminalized conduct is engaging in a sexual act with another, if the other person is fourteen or fifteen years old, and the person performing the act is at least four years older than the other person. Md. Code, Crim. Law § 3-301(d) defines sexual act as any of the following acts, regardless of whether semen is emitted: analingus;cunnilingus;fellatio; anal intercourse, including penetration, however, slight; or an act in which an object or part of a person’s body penetrates, however, slightly, not another individual’s genital opening or anus and can be reasonably construed to be for sexual arousal or gratification, or for the abuse of either party. The definition of a sexual act does not include vaginal intercourse.
This second type of criminalized conduct has different requirements that the prosecutor must prove, compared to sexual conduct without the consent of the other. First, there is no requirement of intentionality. The prosecutor does not have to prove that the sexual act was intentional. Second, the prosecutor must prove that the victim is 14 or 15 years old and that the other person is at least four years older. Importantly, the prosecutor does not have to prove that the older person knew, or should have known, that the victim was 14 or 15 years old. It does not matter if there was an honest, legitimate, belief that the person was above the age of consent. All the prosecutor must show is that they were actually 14 or 15 years old.
The third way that a person can be charged with fourth degree sexual offense is by performing an act of vaginal intercourse with another person, if the performer is at least four years older than the victim. Md. Code, Crim. Law § 3-301(g) defines Vaginal intercourse as either genital copulation, regardless of whether semen is emitted, and penetration, no matter how slight, of the vagina.
What is the penalty?
A conviction for fourth degree sexual offense is a serious conviction. For a first time offender there is a maximum jail sentence of one year or a fine of $1,000 or both. If this is not the first conviction there is an even harsher penalty, with the potential for up to three years imprisonment or a $1,000 fine or both. In addition to the jail time a person convicted of fourth degree sexual offense is required to register on the Maryland Sex Offender registry as a Tier 1 sex offender for fifteen years. Additionally, this charge cannot be expunged following a conviction.
In light of the serious nature of the offense, and the potential legal consequences that extend far into the future it is imperative that a person being charged with Fourth Degree receive the best representation possible. The attorneys here at Maronick Law are well versed in defending clients from sex offenses, including sexual offense in the fourth degree. We are ready and able to provide an aggressive and tireless defense to protect you from the potential consequences of a conviction.