Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §40112, 108 Stat. 1796, 1903 (1994).

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. 
2

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,
 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

100,200 forcible rapes were attempted and 40,730 were completed. From 1981 to 1991, the 2

nation experienced a 28-percent increase in the number of rapes reported. By comparison, the 3

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

(NCVS–VAW) found that rape is seriously underreported to authorities. The survey estimates 4

that 173,000 rapes occurred during 1991, a figure 62-percent greater than the number actually

reported.

The NCVS–VAW 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

raped by strangers reported injury compared to 40 percent of women raped by non-strangers.5

Rape most typically involves a lone offender. According to the NCVS–VAW, 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. Because federal jurisdiction for rape generally is limited only to 6

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
 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

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." The guideline provides for a 2-level 8

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
 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

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." The statutory 9

maximum penalties are ten years' imprisonment if to do so would violate section 2241; three 10

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

consensual sexual contact, "[i]f the defendant and the victim are similar in sexual experience."11

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)
 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

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
 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

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.
 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

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

cases were reviewed to determine whether sexual assault or abuse occurred in those cases. 

14

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
 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

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. Sixty-nine of the 97 sexual assault 15

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.
10

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

Minor

 2 2.2 142.5 142.5 

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 excluded due to one or more of the following conditions: missing sentence information (3) or missing

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.
 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

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%) were sentenced under guideline 2A3.1 16

(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. In 14 cases (14.3%), the 17

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). 
 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

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

guideline applied. Criminal Sexual Abuse, with a base offense level of 27, has a substantially 18

higher offense level than either Statutory Rape or Abusive Sexual Contact. For cases in which 19 20

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
 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

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". The effective date for application of the cross reference 21

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
 Caroline W. Harlow, U. S. Dep’t of Justice, Comparing Federal and State

Prison Inmates, 1991 5, tbl. 6 (1994).

14

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. Because the data were aggregated 23

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
 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

implemented, 77 cases have been sentenced for sexual assault; the mean sentence imposed (and 24

to be served in its entirety) is 9.6 years. This is nine percent longer than the estimated 8.8 years 25

(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. This project was conducted similarly 26

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. To the extent that parole or the application of good conduct credits reduces rape 27
or three years of the sentence.

 National Organization for Victim Assistance and Crime Victims Research and

Treatment Center.

16

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

distinctions in sentencing based upon this factor are unwarranted. Two of these organizations28

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.
 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

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
18

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.
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

GUIDELINE Level

Base

Offense

DEFENDANT UNKNOWN DEFENDANT KNOWN

Number Percent (in months) Number Percent (in months)

Mean Mean

Sentence Sentence

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

Minor

25 0 0.0 - 2 2.6 142.5

 )))))))))

*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)

CURRENT OFFENSE

AVERAGE ESTIMATE OF SENTENCE

SENTENCE IMPOSED TO BE SERVED

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