Alabama has a crime called sections this crime occurs someone engages deviant sexual person under circumstances of those covered by the law of sodomy First Degree or Sodomy Second Degree.
This is a rarely used “catchall provision “of the law to cover those instances where section contact occurred but in a manner, that did not file violate Alabama's First or Second Degree Sodomy laws.
In real life, I have only seen the section the law applied as a compromise between the defense and the prosecution; I have not seen anyone directly charged this provision.
Here is a hypothetical: A 22-year-old married nurse comes home having gotten somewhat tipsy at “Happy Hour.” She is not so intoxicated as to be incapable of consent and she has no mental health problems. She goes upstairs without realizing her husband has fallen asleep downstairs on the couch. His brother, who got a bit “tipsy” himself, has wandered upstairs and is sleeping in their bed. She performs oral sex on her husband's brother thinking it is her husband. He does not stop her. He does not question her actions. When she realizes her mistake, she calls the police.
Is there a crime here?
Brother is not guilty of first-degree sodomy; he did not force her to have sex; she is not underage and he did not contribute in any way to her getting tipsy.
Brother is not guilty of Second-degree sodomy; again, there is no age issue and she is not mentally defective.
Is he guilty of sexual misconduct? Frankly, I do not know. The catchall fits but it also could apply against her with him as a victim … while he hardly fought her off, it could be argued (since he was asleep and “tipsy') he did not consent either. We are going to just leave this “unsolved”
A.Defenses to sexual misconduct
A defense to this type of case depends on the specific facts to determine if there was any violation of the law
What are the consequences for someone who has been found guilty of sexual misconduct?
Sexual misconduct is a class A misdemeanor; the maximum sentence is one year in jail; the maximum fine is 6000.00
A first conviction for sexual misconduct requires someone to be registered as a sex offender under Alabama law, however, the public notification provisions of Alabama's sex offender laws do not apply for a first conviction. The notification laws apply to a second conviction if that conviction does not arise out of the same set of facts and circumstances as the first conviction.