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In Townsend, there was no evidence of force or threat of force, apart from the force inherent in the sexual contact itself.
Summary of this case from Inga v. StateOpinion
Court of Appeals No. A-10502.
September 14, 2011.
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge, Trial Court No. 1JU-09-95 CR.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, Douglas D. Gardner, District Attorney, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellant. Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A grand jury indicted Patrick M. Townsend for sexual assault in the second degree, a class B felony, for engaging in sexual contact with T.M. by grabbing his genitals through his clothing. According to T.M.'s testimony at the grand jury, he responded by lunging at Townsend, chasing after him, and immediately reporting the incident to the police.
AS 11.41.420(a)(1).
Townsend moved to dismiss the indictment. He pointed out that, to commit sexual assault in the second degree, the offender had to engage "in sexual contact with another person without the consent of that person." He pointed out that the definition of "without consent" required the alleged victim to be "coerced by the use of force . . . or by the express or implied threat of death, [or] imminent physical injury." He argued that, although he had knowingly engaged in sexual contact with T.M., and that T.M. "did not appreciate" the contact, the contact had not been "without consent" as defined by statute because Townsend had not engaged in the sexual contact by coercing T.M.
Superior Court Judge Philip M. Pallenberg agreed with Townsend's argument and dismissed the indictment. The State appeals. We affirm.
Factual and procedural background
The following facts are taken from the testimony at the grand jury hearing. On October 31, 2008, T.M. and his fiancee were at a crowded bar. T.M. testified that the place was packed and that his fiancee was guiding him through the crowd as he held her hand. He testified that he was brushing against people and that the crowd made it difficult to move.
Townsend approached T.M., and grabbed and squeezed the shaft of T.M.'s penis through his clothing for about three to four seconds. T.M. dropped his fiancee's hand and turned to see who grabbed him. Townsend made eye contact and said, "How are you doing?" T.M. had never met Townsend before. T.M. lunged at Townsend but was prevented from reaching him by other people. T.M. testified that he was "stuck" and "trapped" in the crowd.
T.M. chased Townsend out of the bar and then saw a police officer. T.M. ceased his pursuit and reported the incident to the officer. The officer contacted Townsend. Townsend admitted that he grabbed T.M.'s genitals and explained that he did this in order to "hit on" Townsend. Townsend admitted that he did not know T.M.
Judge Pallenberg ruled that this evidence did not support a finding that Townsend's sexual contact with T.M. was coerced by the use of force.
Why we uphold Judge Pallenberg's ruling
When we interpret a statute, we apply our independent judgment to determine the legislature's intent. Sexual assault in the second degree is defined as engaging "in sexual contact with another person without the consent of that person." "Without consent" is defined to mean "that a person, with or without resisting, is coerced by the use of force . . . or by the express or implied threat of death, [or] imminent physical injury." T.M. does not contest the fact that he knowingly engaged in sexual contact with Townsend, contact that Townsend did not want, did not invite, and found to be offensive. The question before us is whether the evidence showed that T.M. coerced the sexual contact by the use of force.
Cragle v. Gray, 206 P.3d 446, 449 (Alaska 2009); State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981); Eppenger v. State, 966 P.2d 995, 996 (Alaska App. 1998).
AS 11.41.420(a)(1).
AS 11.41.470(8)(A).
In order to understand the legislature's intent when it enacted AS 11.41.420(a)(1), we turn to the legislative history as set out in the commentary to the statute. At common law, rape was defined as carnal knowledge of a woman forcibly and against her will. The 1978 commentary to the tentative draft to the Revised Criminal Code recognizes that the phrase "forcibly and against the will" had been defined by some other courts as requiring the victim to resist the offense "from the inception to the close" and required the victim to resist to the extent of her ability "until the act has been consummated."
Rollin M. Perkins Ronald N. Boyce, Criminal Law 210 (3d ed. 1982) (citing 4 William Blackstone, Commentaries 210).
Alaska Criminal Code Revision Part I, cmt. at 79 (Tentative Draft 1978) (citing People v. Murphy, 108 N.W. 1009 (Mich. 1906) and State v. Risen, 235 P.2d 764, 765 (Or. 1951)), reprinted in Alaska Criminal and Traffic Law Manual 138 (2009-10 ed.).
The commentary to the tentative draft goes on to state:
By requiring the victim to resist to the utmost until the act is completed or until the victim's mind is overcome by abject fear of her life, statutes similar to Alaska's existing provision have required of a rape victim a level of resistance required in no other crime of violence. Interpretations of now discredited statutes similar to the existing Alaska provision have denied the victim of a sexual assault the opportunity to rationally assess the danger and choose the safest course of action. Under the existing law, the victim may be required to ignore the advice generally given by the police about victim behavior in the course of armed robberies and other crimes of violence.
While it is probable that today the Alaska Supreme Court would not interpret the phrase "forcibly and against the will" as restrictively as [some courts], the definition of "without consent" eliminates any inference that the victim must forcibly resist the sexual assault. Instead, in a prosecution for sexual assault that occurs "without consent" of the victim, the state is required to prove that the victim was coerced by the actual use of force against any person or property or by the "express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone."
Id. at 79-80.
In light of the common law background of sexual assault statutes, courts in other states have held that a sexual assault requires the State to prove that the defendant did something more than the simple forcible touching which is required to prove an assault. The State must also show that the victim was compelled to submit to the sexual touching because the defendant coerced the victim to submit to the sexual assault by the use of force or the imminent threat of force.
See, e.g., People v. Denbo, 868 N.E.2d 347, 355, 358 (Ill. App. 2007); Scott-Gordon v. State, 579 N.E.2d 602, 603-04 (Ind. 1991); Chatham v. State, 845 N.E.2d 203, 207-08 (Ind. App. 2006); State v. Schenck, 513 So. 2d 1159, 1163 (La. 1987).
Two cases which Judge Pallenberg relied on in dismissing the indictment are State v. Schenck and Scott-Gordon v. State. In Schenck, the Supreme Court of Louisiana found that there was insufficient evidence to convict a defendant of sexual battery because there was insufficient evidence to show that "the victim was compelled to submit to the sexual touching because the offender placed the victim in fear of receiving bodily harm."
513 So. 2d 1159 (La. 1987).
579 N.E.2d 602 (Ind. 1991).
Schenck, 513 So. 2d at 1163.
[T]he fourteen year old female victim and her aunt were leaving a Mardi Gras parade . . . [when] the twenty-one year old male defendant jumped from behind a tree, grabbed her by the hips from behind, rubbed himself against her, reached in front and touched or squeezed her between the legs (she was wearing pants) in the pubic region. It was a momentary event quickly concluded when the startled victim dug an elbow into the defendant and cried out, "Pervert," prompting the defendant to agree ("That's me") as he ran back in the direction of the parade.
Id. at 1160.
The Louisiana sexual battery statute prohibited "the intentional engaging in a sexual act with another person . . . where the offender compels the other person to submit by placing the person in fear of receiving bodily harm." The court concluded that Schenck's acts did not amount to a sexual battery:
Id. at 1161 n. 3.
[S]exual battery requires something more than the simple forceful touching required to prove battery; [it requires] a showing that the victim was com pelled to submit to the sexual touching because the offender placed the victim in fear of receiving bodily harm. To submit, in the sense in which it is used here, is defined in Webster's Dictionary as "to yield oneself to the authority or will of another." Read properly, the intentional engaging in an act with another person where the act involves genital touching and where the offender compels the person to submit contemplates an accomplished submission, a success at getting the victim to yield. Here, the victim did not submit. She may have frozen momentarily and been startled, but she did not submit. As soon as she could determine what to do, she elbowed the defendant and caused termination of the encounter. There is a deficiency of proof as to the element of compulsion here, and thus insufficient evidence of an essential element necessary for a conviction of sexual battery. The fact that the victim reacted with fear and surprise and momentarily froze is not sufficient to support a finding that she was compelled to submit. The victim repelled the offender by elbowing him. She did not exhibit an intellectual resignation to the defendant's actions; her reaction was merely momentarily retarded. The force exhibited by this defendant was merely that necessary to accomplish the non-consensual sexual touching.
Id. at 1163 (citations omitted).
In Scott-Gordon, Scott-Gordon was the employer of the minor victim, J.H. The sexual battery statute read: "A person who . . . touches another person when that person is compelled to submit to touching by force or imminent threat of force commits sexual battery, a Class D felony." One of the counts against Scott-Gordon charged that he approached J.H. from behind and grabbed his buttocks. In response, J.H. "jumped back and hit Scott-Gordon in the eye with his fist. Scott-Gordon stepped away from J.H., but threatened to fire him if he ever did that again." The court found that this evidence was insufficient to establish a sexual battery:
Scott-Gordon, 579 N.E.2d at 603 (citing Ind. Code § 35-42-4-8).
Id. at 604.
[T]here is no evidence that J.H. was compelled to submit to the touching by force or threat of force. While this touching may have constituted a battery, it did not constitute a sexual battery because J.H. was not compelled to submit to the touching by force or the imminent threat of force.
Id.
More recently, in Chatham v. State, the Indiana Court of Appeals follow ed Scott-Gordon and found insufficient evidence to support a conviction for sexual battery. In that case, Chatham, who the victim did not know, came up behind her while she was walking and put his hand between her thighs and reached up to her crotch as far as he could. This frightened her, and she started walking away. Chatham ran away. The court rejected the State's argument that it was "reasonable to conclude that [Chatham] compelled [the victim] to submit to the touching by force." The court reasoned that, although the evidence showed that the victim was frightened, it did not show that she "was compelled to submit to the touching by force or the imminent threat of force." The court did, however, conclude that Chatham was guilty of battery and directed the trial court to enter a judgment for conviction of the offense. In Johnson v. Commonwealth, the Court of Appeals of Virginia reached a similar decision. Our interpretation of A S 11.41.420(a)(1), which criminalizes sexual assault in the second degree, turns on the definition of "without consent." The legislative history as set forth in the tentative draft to the Revised Criminal Code explains that:
845 N.E.2d 203 (Ind. App. 2006).
Id. at 205.
Id. at 207.
Id. at 208.
365 S.E.2d 237, 240 (Va. App. 1988).
AS 11.41.470(8)(A).
[I]n a prosecution for sexual assault that occurs "without consent" of the victim, the State is required to prove that the victim was coerced by the actual use of force . . . or by the "express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone."
Alaska Criminal Code Revision Part I, cmt. at 80 (Tentative Draft 1978), reprinted in Alaska Criminal and Traffic Law Manual 138 (2009-10 ed.).
This legislative history suggests that to prove the element of "without consent" as set forth in the offense of sexual assault in the second degree, the State is required to prove more than that the defendant forcibly touched the victim, and thus committed an assault. The State is required to show that the victim was compelled to submit to the sexual touching by the use of force or the imminent threat of force. Cases from other jurisdictions have reached this same conclusion.
Denbo, 868 N.E.2d at 355, 358; Scott-Gordon, 579 N.E.2d at 603-04, Chatham, 845 N.E.2d at 207-08; Schenck, 513 So.2d at 1163.
Applying this analysis to Townsend's case, we conclude that the evidence which the State presented to the grand jury was insufficient to show that Townsend compelled T.M. to submit to the sexual touching by the use of force. The evidence shows that, when Townsend assaulted him, T.M. was not intimidated but reacted immediately to terminate the assault. T.M.'s reaction to the assault was similar to the reaction of the victims in the cases we have discussed where the courts found that there was insufficient evidence to show that the sexual touching was accomplished by coercion. We accordingly hold that the evidence which the State presented to the grand jury was insufficient to indict Townsend for sexual assault in the second degree.
Schenck, 513 So. 2d at 1160-63; Scott-Gordon, 579 N.E.2d at 603-04.
Conclusion
The judgment of the superior court is AFFIRMED.
This case requires us to clarify what is meant when the State charges a defendant with sexual assault for engaging in sexual contact with another person "without consent".
Here, the State alleges that Patrick Townsend committed second-degree sexual assault when he reached out toward another man in a crowded bar, put his hand on the man's crotch, and squeezed the man's penis for three or four seconds.
The victim was a stranger to Townsend, and he did not invite, nor did he approve of, this sexual touching. When the victim realized what was happening, he lunged at Townsend and attempted to strike him, but two other men (apparently friends of Townsend's) interposed themselves and held him off. This allowed Townsend to make his way out of the bar. When Townsend was safely away, Townsend's friends let the victim go.
The victim intended to pursue Townsend (and beat him up). But on his way out of the bar, he encountered a police officer, so he told the officer what had happened.
Townsend was still on the street, within sight, and the victim pointed him out to the officer. When the police officer approached Townsend and questioned him, Townsend admitted that he had grabbed the victim's penis, and he further admitted that the victim was unknown to him. Townsend described his conduct as an impulsive sexual overture.
Based on this incident, Townsend was indicted for second-degree sexual assault under AS 11.41.420(a)(1): engaging in sexual contact with another person "without consent of that person".
Townsend clearly engaged in sexual contact with the victim. As defined in AS 11.81.900(b)(58)(A)(i), the term "sexual contact" includes the knowing touching of another person's genitals, anus, or female breast, either directly or through clothing. The question is whether the touching in this case occurred "without [the victim's] consent".
At this point, most readers are likely to exclaim, "How can there be any doubt that this sexual touching occurred without the victim's consent?"
It is certainly true that, employing the normal English meaning of the phrase "without consent", Townsend's touching of the victim's penis occurred without the victim's consent. In normal English, a person "consents" to a sexual touching if they willingly engage in, or allow, the touching. And in the present case, the victim did not want Townsend to touch him. The victim neither invited nor approved of the sexual contact, and as soon as he perceived the touching, he tried to end the sexual contact as quickly as possible.
See part 1(b) of the definition of "consent" in Webster's New World College Dictionary (Fourth Edition, 2004), p. 310.
But for purposes of Alaska's sexual assault statutes, the phrase "without consent" has a special meaning that differs significantly from its everyday meaning. As defined in AS 11.41.470(8), sexual conduct takes place "without [a person's] consent" if the person "is coerced by the use of force . . . or by the express or implied threat of death, imminent physical injury, or kidnapping".
In other words, the statutory phrase "without consent" does not apply to all instances where a person does not subjectively consent to sexual contact. Rather, the statutory phrase applies only to instances where the person does not subjectively consent and the person is coerced by force or the threat of force. The origins of our statutory definition of "without consent"
The common-law crime of rape was defined as "carnal knowledge of a woman forcibly and against her will." Rollin M. Perkins Ronald N. Boyce, Criminal Law (Third Edition 1982), p. 210, quoting Blackstone's Commentaries on the Laws of England, Vol. 4, § 210. For present purposes, it is important to note that this crime required proof both that the sexual penetration was accomplished by force and that it was against the victim's will. These two concepts — "forcibly" and "against her will" are related, but they are not the same.
According to Perkins and Boyce, the ancient phrase "against her will" referred to the woman's subjective mental state: "Was the woman willing or unwilling?" Id. at 209. Later common-law formulations used the phrase "without consent" to describe this same concept — i.e., the victim's subjective willingness or unwillingness to allow the sexual penetration. In other words, at common law, the phrase "without consent" was understood in its everyday meaning.
Perkins and Boyce takes the position that the common-law requirement of force — actually, either the active use of force or the intimidating threat of force — was primarily intended to be an evidentiary matter bearing on the woman's subjective lack of consent. If the accused used force or intimidation, this proved the woman's unwillingness to consent to the act of intercourse. Id. at 211-12. But Professor LaFave, in his treatise on substantive criminal law, explains that this was only one of two common-law views on this matter. See Wayne R. LaFave, Substantive Criminal Law (Second Edition 2003), § 17.3, Vol. 2, pp. 620-23.
According to Professor LaFave, some common-law cases took the view advocated by Perkins and Boyce — the view that evidence of force or intimidation was simply a method of proving the real underlying requirement, which was the woman's subjective lack of consent. But other common-law cases adopted the view that the two phrases, "forcibly" and "without consent", were in fact two separate elements of the crime of rape, and the government was required to prove both of these elements. Id. at 620-21; 637-38. According to LaFave, this second view represents the majority position. Id. at 622-23.
Under this second view, a forcible act of intercourse is not rape if the woman is in fact willing to be subjected to force. In other words, "rough" sex is not rape if it is consensual. Conversely, even when the woman is unwilling to engage in the act of intercourse, there is no rape if the coercion is not forcible — for example, if the woman "consents" because the offender threatens to fire her from her job, or threatens to expose some secret that would subject her to opprobrium, if she refuses. See LaFave, § 17.3(d), Vol. 2, pp. 631-32.
Before the enactment of Alaska's current criminal code, the crime of rape in Alaska was defined by a statute that tracked the common-law definition of the crime. This statute, former AS 11.15.120(a), declared that the crime of rape consisted of "carnal knowledge of another person, forcibly and against the will of the other person".
The drafters of our current criminal code wanted to move away from this common-law definition. In place of the phrase "forcibly and against the will of the other person", the drafters proposed a new phrase, "without consent" — which they defined to mean that the victim, "with or without resisting, is coerced by the use of physical force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone". Tentative Draft 11.41.460(6), found in Alaska Criminal Code Revision Subcommission, Tentative Draft, Vol. 1, p. 72.
The drafters of our criminal code explained that they intended the phrase "without consent" to be a substitute for the phrase "forcibly and against the will", which the drafters characterized as "archaic and undefined". Id. at 73-74. (This
characterization is questionable: the terminology of the rape statute may have been old, but it was hardly "archaic", nor was it undefined.)
According to the Tentative Draft commentary, the drafters' particular motive for substituting this new element — "without consent" — was to "[e]liminate[] . . . any contention that . . . a victim must forcibly resist a sexual assault to the utmost" or "that [the victim's] resistance must continue until the act has been terminated." Id. at 74. ( See id. at 79-80 for a longer explanation of this same point.)
This new element of "without consent" was ultimately adopted by the Alaska Legislature, and it is now codified in AS 11.41.470(8). But the definition of "without consent" still tracks the elements of common-law rape. Under this statutory definition, to prove that an act of sexual penetration or sexual contact occurred "without [the victim's] consent", the government is required to prove (1) that the victim was "coerced" — in other words, that the victim was made to engage in sexual conduct that they otherwise were unwilling to engage in — and (2) that the coercion to which the victim was subjected took the form of force or the threat of force.
Thus, even under the definition of "without con sent" codified in A S 11.41.-470(8), the modern-day crime of sexual assault still requires proof of the two primary components of common-law rape: (1) that the sexual activity occurred against the victim's will (in the sense that, but for coercion, the victim was subjectively unwilling to engage in the sexual activity), and (2) that the type of coercion exerted on the victim was "forcible" ( i.e., coercion by the use of force or the threat of force, as opposed to economic, social, or other coercion). The important distinction between (1) sexual contact that is achieved by force and (2) coercion that is achieved by force
At this point in the discussion, it is crucial to draw a distinction between sexual penetration or contact that is achieved by force, versus coercion that is achieved by force.
As defined in AS 11.81.900(b)(27), the term "force" includes "any bodily impact [or] restraint". If the terms "bodily impact" and "restraint" are interpreted broadly, any act of sexual penetration or sexual contact would include an element of bodily impact or restraint. Thus, any of these sexual acts would seemingly qualify as the use of "force".
For this reason, it is important to note that the statutory definition of "without consent" does not speak of acts of sexual penetration or sexual contact that are achieved by force. Rather, the definition speaks of coercion that is achieved by force.
This is a modern-day continuation of the rule at common law. At common law, an act of sexual intercourse was "forcible" if it was achieved by physical compulsion apart from the force involved in the act of sexual intercourse itself. See LaFave, § 17.3, Vol. 2, pp. 622-23. In other words, the government's proof of "forcible" intercourse could not rest on the physical contact inherent in the act of sexual intercourse. Rather, the common law required proof that the act of intercourse was compelled: that the victim physically resisted and was overcome by force, or that the victim would have resisted but was intimidated into submission by threat of imminent serious injury.
I interpret AS 11.41.470(8) — our definition of "without consent" — in the same manner. When the government charges a defendant with sexual assault based on an allegation that the victim was "coerced by the use of force", that force must be something other than the bodily impact or restraint inherent in the charged act of sexual penetration or sexual contact.
Application of this law to Townsend's case
For cases involving sexual penetration, it is generally easy to distinguish (1) the bodily impact or restraint inherent in the act of penetration itself from (2) the force or threat of force that constitutes the coercion required by AS 11.41.470(8). But this task can be more difficult when the charged misconduct is an act of sexual contact.
Sexual contact, as defined in AS 11.81.900(b)(58)(A), is a touching of specific body parts (genitals, anus, or female breast). There will be cases where the defendant accomplishes this touching by holding the victim down, or by otherwise physically preventing or countering the victim's resistance. In such cases, there will be a clear line between (1) the bodily impact or restraint inherent in the act of sexual contact and (2) the force that constitutes the coercion. But in other cases — cases such as Townsend's — this distinction is much harder to draw.
As explained at the beginning of this concurrence, the State charged Townsend with sexual assault based on an incident where Townsend reached out toward another man in a crowded bar, placed his hand on the man's crotch, and (through clothing) held the man's penis for three or four seconds.
In its brief to this Court, the State argues that this act of touching constituted the coercion required under AS 11.41.470(8). The State asserts that the touching "momentarily stunn[ed]" the victim and "halt[ed] him from walking forward". The State further asserts that, when the victim stopped and turned around to see who was touching his penis, Townsend "persisted" in the touching. These facts, according to the State, prove that Townsend coerced the victim through bodily impact and restraint.
One can well understand why the victim was momentarily stunned when a stranger grabbed his crotch, and why the victim would halt his progress through the crowd and turn around to see who was molesting him. But the State's evidence does not show that Townsend coerced the victim to stop walking and to remain within Townsend's reach.
At the time of this touching, the victim and his girlfriend were making their way through the crowded bar. The victim's grand jury testimony gives no indication that Townsend grabbed onto the victim in such a way as to physically prevent the victim from breaking off the offensive touching by simply continuing to walk forward. Similarly, nothing in the victim's grand jury testimony suggests that Townsend physically prevented the victim from brushing Townsend's hand away, or from otherwise turning his body to interrupt the touching.
Indeed, it appears from the grand jury prosecutor's questions that the prosecutor was trying to pursue a theory that the victim was so hemmed in by the crowd that no movement was possible, and that the victim was therefore helpless to interrupt the offensive touching. But the victim's answers do not support this theory.
Here is what the victim said about the press of the crowd:
Victim: The front [of the bar] was packed, [and] the back was crowded like crazy. I mean, when you walked through — [my girlfriend] was guiding me through [the crowd], so I had to hold her hand like this and . . . kind of weave through people.
Prosecutor: . . . You're making a motion of kind of slipping through the . . .
Victim: Right.
Prosecutor: . . . crowd . . .
Victim: Through the crowd.
Prosecutor: . . . sideways.
Victim: Right.
Prosecutor: Were you brushing against people? Were you . . .
Victim: Yeah.
Prosecutor: . . . packed like a — Did it make it difficult to move?
Victim: Yeah.
Prosecutor: [So] if you had wanted to turn around abruptly, would you have been able to? Or would . . .
Victim: Yeah, but you [would] bump into lots of people, you know.
And here is how the victim described his actions when he felt Townsend touch his crotch:
Prosecutor: What happened after that? What did you do?
Victim: I turned around. I let go of my fiancée's hand, and I turned around to look — because there were so many people — to see who it was [who was touching me]. And [Townsend] had a hold of me, and [he] says, "How are you doing?" And I went to lunge forward and knock some people down. And then — I guess they were his friends — two of them got in my way and kind of held me off while [Townsend] . . . left the area. He left the building. And then [the two men] let me go, and I was on my way to chase [him] and beat him up.
In other words, apart from the act of sexual contact itself, the only physical restraint described by the victim was the restraint employed by Townsend's two friends, who held the victim back and prevented him from attacking Townsend.
Because of this, the indictment in this case is premised on the theory that Townsend "coerced" the victim when Townsend grabbed the victim's penis through his clothing, causing the victim to be "momentarily stunn[ed]" and to halt his forward progress through the crowd — thus allowing Townsend to continue the offensive touching for a couple more seconds.
But as I explained earlier, the forcible coercion required by AS 11.41.-470(8) — the use of force or threat of force — must be something other than the bodily impact or restraint inherent in the act of sexual contact. And in Townsend's case, there is nothing else.
Townsend's case presents a legal problem similar to the one that this Court encountered in Alam v. State (I), 776 P.2d 345 (Alaska App. 1989), and Alam v. State (II), 793 P.2d 1081 (Alaska App. 1990) (appeal after remand).
The Alam case involved the offense of kidnapping. Modern kidnapping statutes (such as Alaska's) define the crime of kidnapping fairly broadly. Under Alaska's kidnapping statute, AS 11.41.300, a defendant commits kidnapping if they restrain another person with the intent to facilitate the commission of any felony, or to facilitate flight from the commission of any felony. The scope of this statute is further broadened by the definition of "restrain" contained in AS 11.41.370(3). Under this statute, "restrain" means:
to restrict a person's movements unlawfully [by force, threat, or deception], so as to interfere substantially with the person's liberty[,] by moving the person from one place to another or by confining the person either in the place where the restriction commences or in a place to which the person has been moved[.]
Given the broad scope of the kidnapping statute, one might reasonably argue that almost any assaultive crime includes at least a momentary "kidnapping" — thus potentially allowing the State to seek a kidnapping conviction (and a sentence of up to 99 years) for almost any assaultive felony.
To prevent such results, this Court held in Alam I and Alam II that when a defendant restrains a victim to facilitate the commission of another offense, this restraint will not constitute a kidnapping if it is merely "incidental" to the commission of the other offense. To support a separate conviction for kidnapping, the defendant's restraint of the victim must exceed "either [temporally] or spatially . . . what was necessary to commit [the ulterior crime]".
Alam I, 776 P.2d at 348-49.
Alam II, 793 P.2d at 1083-84.
An analogous problem is presented in cases where a charge of sexual assault is based on an act of sexual contact. Under AS 11.41.470(8), an act of sexual contact becomes the crime of sexual assault if the victim is coerced by force or threat of force. But because "force" is broadly defined to include any "bodily impact" or act of "restraint", one might argue that any act of sexual contact can constitute the "force" that will support a finding of coercion.
As I have explained, both the Model Penal Code and Alaska's sexual assault statutes are premised on the idea that an act of sexual contact is not "sexual assault" unless (1) the victim did not subjectively wish to engage in the sexual contact and (2) the victim was coerced to engage in the sexual contact by force or the threat of force. It is therefore essential to maintain the legal distinction between (1) all unconsented-to acts of sexual contact and (2) those unconsented-to acts of sexual contact which are forcibly coerced.
To maintain this distinction, the forcible coercion that renders an act of sexual contact "without consent" under AS 11.41.470(8) must not consist merely of the bodily impact or restraint inherent in the act of sexual contact itself. Otherwise, essentially all non-consensual sexual contact would qualify as coerced.
Nor should the State be allowed to argue that the surprising or unexpected nature of the sexual contact was coercive merely because the victim was momentarily "stunned" and did not immediately take action to terminate the sexual contact. Again, the flaw in this approach is that it converts essentially all non-consensual sexual contacts into coercion.
I acknowledge that this interpretation runs counter to the result that this Court reached in Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982).
In Nicholson, the defendant disrobed, climbed into bed with a sleeping teenage girl, and began to fondle her breasts. The girl awakened — and, "temporarily in shock", she hesitated for a moment before jumping out of bed (thus ending the sexual contact).
Nicholson, 656 P.2d at 1210.
Ibid.
Nicholson contended that his actions would not support a conviction for second-degree sexual assault because there was no showing that he engaged in any act of coercion. This Court rejected Nicholson's argument. We concluded that, viewing the evidence in the light most favorable to the jury's verdict, "Nicholson could reasonably foresee that [the victim] would be momentarily stunned by fear caused by Nicholson's unexpected and uninvited entry into her bed", and that the victim's uncertainty and fear would "[enable] him to continue [the sexual contact] after she awoke", at least momentarily. Thus, the trial jury could reasonably find that Nicholson's actions coerced the victim into a "momentary acquiescence" in his act of sexual contact.
Id. at 1213.
Ibid.
Ibid.
In other words, Nicholson basically holds that an unexpected and surprising act of sexual contact can itself constitute the coercion required under AS 11.41.470(8). I believe that this holding is erroneous, and it should be disavowed. Nicholson may have been guilty of sexual assault under the theory that he engaged in sexual contact with a victim who was asleep or otherwise unaware of what was happening. But Nicholson did not engage in any act of forcible coercion, apart from his act of unexpected and unconsented-to sexual contact. Therefore, he should not have been convicted of engaging in sexual contact "without [the victim's] consent".
See AS 11.41.425(a)(1)(B) — (C). (Originally covered by former AS 11.41.430(a) (1980).)
Conclusion
For the reasons explained here, I conclude that Townsend should not have been indicted for second-degree sexual assault. The charge against him rested on the notion that a person can be "coerced" merely by being subjected to a non-consensual act of sexual contact. This notion is contrary to the intent of our sexual assault statutes.
On this point, I note that the Alaska Legislature recently amended our first-degree harassment statute, AS 11.61.118, to include instances where a person engages in offensive physical contact with another person's genitals, buttocks, or female breast under circumstances not covered by the sexual assault statutes. See AS 11.61.118(a)(2), as amended by SLA 2010, ch. 18, § 4. Although the passage of this legislation neither contributed to, nor affected, my analysis of this case, it appears that the legislature shares my view that not every unconsented-to act of sexual contact constitutes a sexual assault — that sexual assault occurs only when the defendant engages in additional acts of coercion.
I respectfully dissent. Viewed in the proper light, the evidence that Townsend restrained T.M. by the genitals was sufficient to support the indictment.
At the grand jury proceeding, T.M. testified that he was walking through the Viking Bar with his girlfriend when Townsend grabbed T.M.'s genitals through his clothing and held on to the shaft of his penis. T.M. stopped and turned around. Townsend maintained his hold on T.M.'s penis for three or four seconds while asking, "How are you doing?" A police officer testified that Townsend admitted that he "grabbed" T.M. because he thought T.M. was "hot" and Townsend wanted to hit on him. The lower-court judge concluded that the testimony showed that T.M. "pulled free within three to four seconds."
The grand jury charged Townsend with sexual assault in the second degree. This crime requires proof that "the offender engage[d] in sexual contact with another person without consent of that person." The meaning of this statute is the primary issue in dispute.
AS 11.41.420(a)(1).
When we construe a statute, our goal is to determine the intent of the legislature, and our primary focus is the wording of the statute. Our determination of legislative intent may also be assisted by legislative history and case precedent analyzing the statute. In this case, the wording of the statute, the legislative history, and our prior decisions suggest that a person can commit the crime of sexual assault in the second degree by restraining the victim by the genitals.
Brant v. State, 992 P.2d 590, 593 (Alaska App. 1999) (Mannheimer, J., concurring).
Id.
As used in this statute, "sexual contact" includes knowingly touching a victim's genitals through clothing. Sexual contact is "without consent" if the victim "with or without resisting, is coerced by the use of force against a person or property." The term "coerce" is not defined in this statute, so we must construe it "according to [its] common and approved usage." One common dictionary definition of "coerce" is "to restrain or constrain by force."
See AS 11.81.900(b)(58)(A)(i).
AS 11.41.470(8)(A).
AS 01.10.040(a).
Webster's New World College Dictionary 283 (4th ed. 2001).
"Force" is defined in the criminal code as "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement." The term "restraint" is not defined in the statute, but one dictionary definition of "restraint" is "holding back." A thesaurus states that the word "restrain" is synonymous with the word "hold." Combining these definitions, a person commits the crime of sexual assault in the second degree if they knowingly touch a victim's genitals through clothing, while holding or restraining the victim's body.
AS 11.81.900(b)(27).
Black's Law Dictionary 1340 (8th ed. 2004); see also Webster's New World College Dictionary 1222 (4th ed. 2001) (defining "restrain" as "hold[in g] back from action").
Roget's II: The New Thesaurus 833 (3d ed. 1995).
In my opinion, grabbing and holding a victim's genitals is one example of holding or restraining a victim's body. This proposition is so well recognized that it forms the basis for a vulgar idiom. If a person wants to communicate that they have someone under their complete control, they can say that they have him "by the balls."
Cambridge Advanced Learner's Dictionary 102 (3d ed. 2008); see also Christine Ammer, The American Heritage Dictionary of Idiom s 292 (1997) (defining having someone "by the balls" as having someone at one's mercy).
This construction is consistent with the legislative intent shown in the commentary quoted in the lead opinion. The legislature did not intend to follow the common-law definition of this offense. Rather, the legislature intended to do away with the common-law requirement that the prosecution must prove that the victim forcibly resisted a sexual assault. The legislature accomplished this purpose by specifying that the crime can be committed when the victim is resisting and also when the victim is not resisting.
Alaska Crim. Code Rev., Part 1, at 79-80 (Tentative Draft 1977).
AS 11.41.470(8)(A).
This construction is also consistent with our prior case law construing this statute. This court has affirmed numerous convictions for sexual assault based on threats or pressure less compelling than the coercion presented in this case.
See Jimmy v. State, 206 P.3d 750, 751 (Alaska App. 2009) (affirming conviction where defendant molested victim in her bed until she awakened); Grandstaff v. State, 171 P.3d 1176, 1210-11 (Alaska App. 2007) (affirming conviction where defendant fondled a patient during the course of a medical examination); Ritter v. State, 97 P.3d 73, 77-78 (Alaska App. 2004) (affirming conviction where therapist had sexual contact with clients during massage sessions); Nicholson v. State, 656 P.2d 1209, 1213 (Alaska App. 1982) (affirming conviction where defendant fondled victim in her bed until she awakened); Mills v. State, Mem. Op. J. No. 5602, 2010 WL 2437091, at *1-2 (Alaska App. 2010) (affirming conviction based on proof that the defendant touched the victim on her breast during a conversation); Herrera v. State, Mem. Op. J. No. 3624, 1997 WL 367214, at *1 (Alaska App. 1997) (affirming conviction where defendant fondled victim's breasts until she awakened).
The lead opinion relies on cases construing the elements of statutes from other states to reach a different result. The Indiana statute construed in Scott-Gordon v. State and Chatham v. State required the prosecution to prove that the victim was " compelled to submit to touching by force or imminent threat of force." The former Louisiana sexual battery statute construed in Schenk v. State required proof that "the offender compell[ed] the other person to submit by placing the person in fear of receiving bodily harm." The lead opinion relies on these cases to conclude that the prosecution was required to prove an additional element — that Townsend used force to compel T.M. to submit to sexual contact.
579 N.E.2d 602 (Ind. 1991).
845 N.E.2d 203 (Ind. App. 2006).
Scott-Gordon, 579 N.E.2d at 603 (emphasis added) (quoting Ind. Code § 35-42-4-8).
Schenk v. State, 513 So. 2d 1159, 1161-62 (La. 1987) (emphasis added) (quoting Act of July 20, 1981, No. 624 § 1, 1981 La. Acts). In 1991 the Louisiana statute was amended by replacing the submission requirement with a requirement like the Alaska statute — that the touching be "without the consent of the victim." Act of July 17, 1991, No. 654, § 1, 1991 La. Acts (amending La.Rev.Stat. 14:43.1(A)).
But the statutory elements adopted by these other jurisdictions should not control over the legislative intent evidenced by the text of the Alaska statute. The Alaska statute does not include an element of submission. This omission suggests that our legislature did not intend to include this requirement.
See Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 458 (Alaska 2006) ("Opinions from other jurisdictions interpreting similar statutes can be persuasive, but we turn first to our own methods of statutory interpretation." (footnote omitted)).
The concurring opinion would add a similar element to the statute based on the common law. The concurring opinion would require the prosecution to prove either that the victim physically resisted or that the victim was intimidated into submission by the threat of imminent serious injury. But the common-law requirement of resistance is the element that the legislature intended to omit. Requiring an element of resistance or submission is inconsistent with the definition of the term "without consent" in the Alaska statute because that definition allows proof of coercion regardless of the victim's resistance or submission.
See Alaska Crim. Code Rev., Part 1, at 79-80 (Tentative Draft 1977).
See AS 11.41.470(8)(A).
I accordingly conclude that restraining a victim by the genitals can satisfy both the element of "sexual contact" and the force required to show that this contact is "without consent." A person commits the crime of sexual assault in the second degree if they knowingly restrain a victim by the genitals.
When we review the sufficiency of the grand jury presentation in this case, we must draw "every legitimate inference" in favor of upholding the indictment. Viewed in this light, the evidence that Townsend held T.M. by his genitals for up to four seconds, until he "pulled free," was sufficient to establish that T.M. was "coerced" by the use of "force."
State v. Williams, 855 P.2d 1337, 1346 (Alaska App. 1993).
I would reverse the order dismissing the indictment and allow the prosecution to try to prove its case to a trial jury.