Size Matters: Force and Size Disparity in Cases of Aggravated Sexual Abuse

Abstract

In 2018, the Third Circuit Court of Appeals affirmed a jury’s finding that a corrections officer deprived a female inmate of her civil rights through his commission of aggravated sexual abuse. Following the Seventh Circuit Court of Appeals while splitting with the Fifth, Eighth, and Tenth Circuit Courts of Appeals, the Third Circuit held that size and coercive power disparities between a defendant and a victim do not speak to the force element of the federal aggravated sexual abuse statute, 18 U.S.C. § 2241(a). Although the Third Circuit takes a balanced approach, its adoption of the Seventh Circuit’s analysis is problematic because the court ignores the Seventh Circuit’s underlying assumption that force must result in bodily injury. Such thinking ignores the legislative intent behind the statute and effectively reintroduces the outdated resistance doctrine.