Sexual Abuse by Threat – 18 U.S.C. § 2241(b) Sentencing Guidelines

Thanks for visiting Spodek Law Group—a second-generation firm managed by Todd Spodek, with over 40 years of combined experience. When federal prosecutors charge sexual abuse by threat under 18 U.S.C. § 2241(b), they’re alleging you caused someone to engage in a sexual act through threats or by placing them in fear of death, serious bodily injury, or kidnapping—to themselves or others. Maximum sentence: **life imprisonment** when aggravating factors exist; any term of years otherwise. Unlike § 2241(a) which requires actual physical force, subsection (b) criminalizes psychological coercion through threats, recognizing that fear can be as effective as violence in eliminating free will.

The Threat Element: What Prosecutors Must Prove

Section 2241(b) has two pathways to liability:

§ 2241(b)(1): Explicit Threats

Causing another person to engage in a sexual act “by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping.” The government must prove:

• **Defendant made explicit threats** – Verbal statements or conduct conveying that death, serious injury, or kidnapping would occur. Ambiguous statements don’t suffice; threats must be specific enough that victims understand what harm is threatened.
• **Threats were of death, serious injury, or kidnapping** – Minor threats (losing a job, being evicted, relationship ending) don’t qualify. The threatened harm must be one of the three specified categories.
• **Threats could be directed at any person** – Not just victims themselves, but also their children, family members, friends, or others. “I’ll hurt your daughter if you don’t comply” falls under § 2241(b) even though the threatened person isn’t the sexual abuse victim.
• **Victim engaged in sexual act because of the threat** – Causation matters. If victims would have engaged in the sexual act anyway, the threat didn’t cause their participation.

§ 2241(b)(2): Threats Implicit in Rendering Unconscious

Causing sexual acts by “administering by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct.” This covers date rape drugs, surreptitious intoxication, and drugging to facilitate assault.

The threat component can be explicit (forced drug administration while threatening harm) or implicit (secretly drugging someone eliminates their ability to control conduct, which itself constitutes coercion). Defendants who slip drugs into drinks commit sexual abuse by threat/coercion even without making verbal threats.

Credibility of Threats

Not every threat satisfies § 2241(b). Courts evaluate whether threats were sufficiently credible and imminent to overcome will:

• **Immediacy** – “I’ll kill you right now if you don’t comply” creates imminent fear justifying submission. “I’ll get you later” or “You’ll regret this someday” lacks the immediacy that overcomes resistance. Victims facing imminent harm can’t be expected to resist; those facing only future, uncertain threats can escape or seek help.
• **Defendant’s apparent ability to carry out threats** – Large, physically imposing defendants making death threats create credible fear. Small, unarmed defendants making the same threats might not. Courts consider whether victims reasonably believed defendants could and would execute threats immediately.
• **Presence of weapons or instruments** – Threats while displaying firearms, knives, or other weapons dramatically increase credibility. “I’ll kill you” while holding a gun is qualitatively different from the same statement made while unarmed.
• **Prior violence by defendant** – If defendants previously assaulted victims, threats of future violence carry more weight. Victims know defendants are capable and willing to follow through.
• **Isolation and lack of escape** – Threats made in isolated locations where victims have no access to help are more coercive than threats in public places where victims could seek assistance.

Defense challenges threat credibility by demonstrating victims had opportunities to escape, call for help, or resist that they didn’t utilize. If victims didn’t believe threats were serious, their conduct should reflect that—they’d flee, scream, fight back, or report immediately afterward. Delayed reporting and lack of contemporaneous resistance suggest threats weren’t actually credible or coercive.

Threats to Third Parties

Section 2241(b) explicitly covers threats to harm “any person”—not just victims themselves. Common scenarios:

• *Threats to children* – “If you don’t do this, I’ll hurt your kids” is a § 2241(b) threat even though children aren’t the sexual abuse victims. Parents faced with threats to their children often submit to sexual demands to protect them.
• *Threats to spouses/partners* – “I’ll kill your husband when he gets home unless you comply” leverages fear for another person’s safety to coerce sexual acts.
• *Threats to extended family* – “I know where your mother lives” coupled with threats of harm creates fear compelling submission.

These third-party threats are particularly powerful because victims aren’t just protecting themselves—they’re protecting loved ones who might be more vulnerable. Defense must challenge whether defendants actually made such threats (often word-against-word with no witnesses), whether defendants had any realistic ability to locate and harm third parties, and whether victims actually believed the threats given defendants’ lack of information about third parties’ locations.

Drug-Facilitated Sexual Abuse

Section 2241(b)(2) criminalizes administering drugs “by force or threat of force, or without the knowledge or permission” to facilitate sexual abuse. This covers:

• **Date rape drugs** – Rohypnol, GHB, ketamine slipped into drinks causing unconsciousness or severe impairment. Victims have no memory of assaults and wake up with physical evidence suggesting sexual activity occurred.
• **Excessive alcohol** – Defendants who continue providing alcohol after victims are clearly intoxicated, rendering them unable to appraise or control conduct. The line between voluntary intoxication (not covered) and coerced intoxication causing substantial impairment (covered) often litigates at trial.
• **Pharmaceutical drugs** – Prescription medications given under false pretenses or in excessive doses to incapacitate victims.

Prosecutors present toxicology results showing drugs in victims’ systems, expert testimony about effects of those drugs on consciousness and capacity, and victim testimony about amnesia or severe impairment. Defense challenges whether defendants actually administered drugs (victims might have taken substances voluntarily), whether impairment was substantial enough to eliminate capacity to appraise or control conduct (victims were tipsy but functional, not incapacitated), and whether sexual activity occurred while victims were impaired (timing issues—did assault happen hours later after drugs wore off?).

The Consent Question in Drug Cases

If victims voluntarily consumed alcohol or drugs and then engaged in sexual activity while intoxicated, does § 2241(b)(2) apply? Courts distinguish between voluntary intoxication (not covered—people who drink and choose to have sex aren’t victims) and incapacitation without consent (covered—people drugged without their knowledge or rendered unconscious can’t consent).

The critical question: was the victim “substantially impaired” in ability to appraise or control conduct? Mild intoxication doesn’t meet this standard. But severe impairment where victims couldn’t make decisions, respond coherently, or remember events does. Defense presents evidence that victims were functional—walking, talking, making decisions—indicating they retained capacity despite intoxication.

Federal Sentencing: Offense Level 30+

Under §2A3.1 of the Federal Sentencing Guidelines, sexual abuse by threat receives the same base offense level as sexual abuse by force: level 30 (97-121 months at Category I). Courts don’t distinguish between physical force and threats in calculating offense levels—both represent aggravated sexual abuse.

Enhancements apply identically:

• **+4 levels** if a dangerous weapon was possessed (often the weapon used to make threats credible)
• **+2 levels** if permanent or life-threatening injury resulted
• **+4 levels** if victim was abducted or restrained
• **+2-6 levels** based on victim age

With typical enhancements, offense levels reach 38-40, yielding sentences of 235-365 months (roughly 20-30 years). When mandatory minimums apply (victims under 12), those control.

Defending Threat-Based Sexual Abuse Charges

Challenge whether threats were actually made. Most § 2241(b) cases involve no witnesses to the alleged threats—just victim testimony that defendants said threatening things. Without corroboration, it’s word-against-word. Defense presents defendant testimony denying threats were made, emphasizes lack of any witnesses or evidence supporting threat allegations, and highlights that victims’ accounts are uncorroborated.

Demonstrate threats lacked credibility. Even if defendants made threatening statements, were they serious? Would reasonable people believe defendants could and would execute the threats immediately? Present evidence that defendants lacked weapons, that victims were in public places where they could seek help, that defendants had no information about or access to third parties allegedly threatened, that victims’ behavior after alleged threats suggests they didn’t actually fear defendants (remaining in contact, meeting voluntarily again, friendly communications).

Contest causation. Did the alleged threats actually cause victims to engage in sexual acts, or did victims participate for other reasons? Evidence of prior consensual sexual relationships, victims initiating contact afterward, or victims admitting to other motives for participating undermines causation.

In drug-facilitated cases, challenge whether defendants administered substances and whether victims were actually substantially impaired. Obtain independent toxicology analysis, present expert testimony that drug levels found weren’t sufficient to cause substantial impairment, demonstrate victims were functional and making decisions during relevant time periods.

Todd Spodek built this firm defending clients where threat allegations created federal prosecutions despite absence of physical violence or corroborating evidence. Our work taught us that threat-based sexual abuse charges often hinge entirely on victim credibility—juries must decide whether to believe victims’ accounts of threats no one else heard, in contexts where defendants claim consensual encounters occurred. When accusations alone can result in decades of imprisonment, and when victims have potential motives to fabricate (custody disputes, immigration benefits, civil lawsuits, anger over relationships ending), rigorous credibility challenges become critical. These cases require immediate investigation—interviewing potential witnesses before memories fade, obtaining electronic communications showing relationship dynamics, securing surveillance footage from locations where threats were allegedly made. If you’re accused of sexual abuse by threat, contact us immediately. We’re available 24/7.