Matter of A.B.

• Decision Date: 24 March 1989
• Docket Number: No. 87-1092.,87-1092.
• Citation: 556 A.2d 645
• Parties: In the Matter of A.B., Appellant.
• Court: D.C. Court of Appeals

Page 645

556 A.2d 645

In the Matter of A.B., Appellant.

No. 87-1092.

District of Columbia Court of Appeals.

Argued December 6, 1988.

Decided March 24, 1989.

Joseph B. Tulman, Supervising Atty., Haut. with whom Stuart H. Adams, Jr., Student Counsel, was on the brief, for appellant.

Charlotte M. Brookins, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, were on the brief, for appellee.

Before ROGERS, Chief Judge, MACK, Associate Judge, and REILLY, Senior Judge.

ROGERS, Chief Judge:

This appeal presents a new question of statutory interpretation under the District of Columbia assault statute, D.C.Code § 22-504 (1981). Appellant A.B., a fifteen-year-old male, was charged as a juvenile delinquent with one count of simple assault for unlawfully assaulting and threatening in a menacing manner A.E., a twelve-year-old girl. D.C.Code §§ 16-2305, 22-504 (1981). The trial judge found appellant guilty based on an unconsented to nonviolent sexual touching where he grabbed and squeezed A.E.'s buttocks on a public street. On appeal appellant contends that the touching of the buttocks does not constitute a sexual touching and that the evidence was accordingly insufficient to support his conviction. We affirm.

I.

On the afternoon of October 1, 1986, A.E., age twelve, was walking with two friends in the 3000 block of 14th Street, N.W. on her way home. Appellant, age fifteen, was walking with two of his male friends towards the girls from the opposite direction on the same side of the street. Appellant blocked A.E.'s path and refused to move out of the way. According to A.E., he stood with his hands on his hips and his legs open. After several unavailing protests by A.E., appellant stepped aside and told A.E. that he would leave her alone. However, after A.E. passed him, appellant ran by her, telling her that he wanted "to squeeze [her] butt," grabbed and squeezed her buttocks with his hand, and then ran away. Testifying that she felt "uncomfortable" about what had happened, A.E. ran after appellant A.B. to hit him and protect herself, but was unable to catch him. A.E. immediately reported the incident to a nearby police officer. Appellant did not call any witnesses.

II.

The nature of the assault contemplated by D.C.Code § 22-504 (1981)¹ is common law assault which this court has consistently recognized as "`an attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.'" In re L.A.G., 407 A.2d 688, 689 (D.C. 1979) (quoting Guarro v. United States, 99 U.S. App.D.C. 97, 99, 237 F.2d 578, 580 (1956)). Where the assault involves a nonviolent sexual touching the court has held that there is an assault within section 22-504 because "the sexual nature [of the conduct] suppl[ies] the element of violence or threat of violence." Goudy v. United States, 495 A.2d 744, 746 (D.C. 1985), modified, 505 A.2d 461 (D.C.), cert. denied, 479 U.S. 832, 107 S.Ct. 120, 93 L.Ed.2d 66 (1986); In re L.A.G., supra, 407 A.2d at 689; see also Beausoliel v. United States, 71 App.D.C. 111, 115, 107 F.2d 292, 296-97 (1939).

In the seminal decision of Beausoliel, supra, the U.S. Court of Appeals for the District of Columbia Circuit held that where an adult male directed a six-year-old girl to touch his exposed penis the incident constituted an assault against the girl. Id. at 115-16, 107 F.2d at 296-97. The court relied on the common law concept "that a man who took improper liberties with the person of a female, without her consent, was guilty of assault." Id. at 115, 107 F.2d at 296. Appellant argues that because the term "person" under the common law was a euphemistic reference to genitals, the definition of a nonviolent sexual touching must necessarily be limited to genital contact. We do not read Beausoliel to adopt so limited a definition of nonviolent sexual touching. In Beausoliel, the court reviewed some of the decisions upon which it was relying to illustrate the broad concept of sexual touching that it was adopting. Id. at 115-16, 107 F.2d at 296.² Our subsequent caselaw provides several definitions of a nonviolent sexual touching which contain language that is more expansive than that relied upon by appellant. Thus, in Dyson v. United States, 97 A.2d 135 (D.C. 1953), involving a homosexual touching, the court broadly defined sexual touching as "assaults of an indecent nature on women and children" and a "touch . . . in the expression of a lustful instinct." Id. at 137. In In re Lewis, 88 A.2d 582 (D.C. 1952), involving an assault by a thirteen-year-old boy on a girl under five years of age, the court simply used the phrase "indecent act" in affirming an assault conviction. Id. at 583. Our caselaw has even used the phrase "intimate expression of a perverted desire" to define what constitutes a sexual touching. Henderson v. United States, 117 A.2d 456, 457 (D.C. 1955) (homosexual touching of genitalia). While the factual circumstances heretofore presented to this court have been limited to genitalia, that is hardly a determinative fact. The exception for nonviolent sexual touching is a judicial creation, and consequently we focus on the rationale of prior decisions.

The fundamental rationale of Beausoliel in determining what conduct constitutes a nonviolent sexual touching was that "[i]n a case such as the present, threat or danger of physical suffering or injury in the ordinary sense is not necessary. The injury suffered by the innocent victim may be the fear, shame, humiliation, and mental anguish caused by the assault." Beausoliel, supra, 71 App.D.C. at 115-16, 107 F.2d at 296-97, (footnote omitted). See also Dyson, supra, 97 A.2d at 136 (rationale of Beausoliel applied in a homosexual context to hold that a sexual touching includes where a man fondled the genitals of another man). In the instant case the reaction suffered by A.E. when appellant grabbed and squeezed her buttocks is consistent with the Beausoliel rationale. A.E. testified that she did not consent to appellant's contact, that she did not want him to grab and squeeze her buttocks, that she did not like appellant, and that his actions made her feel uncomfortable "[b]ecause, I don't like him feeling on me." Her reaction after the appellant grabbed and squeezed her buttocks, in running after appellant in an attempt to hit him and protect herself, is corroborative of her mental state.³

Appellant argues, however, that, notwithstanding A.E.'s lack of consent, the trial judge found that the incident began in "apparent playfulness" when appellant attempted to block A.E.'s passage on the Street, and thus A.B. should not be found guilty in the absence of a specific intent to gain sexual gratification. The sexual touching doctrine is not designed to protect an individual from the specific intent of another individual but from unwanted roving hands; accordingly, the caselaw clearly establishes that in the heterosexual context specific lustful intent is unnecessary. See In re L.A.G., supra, 407 A.2d at 690; Beausoliel, supra, 71 App.D.C. at 115-16, 107 F.2d at 296-97; see generally Pino v. United States, 125 U.S.App.D.C. 225, 370 F.2d 247 (1966) (simple assault is a general intent crime); Parker v. United States, 123 U.S.App.D.C. 343, 359 F.2d 1009 (1966); Anthony v. United States, 361 A.2d 202 (D.C. 1976) (no subjective intention to bring about the injury needed).⁴ Furthermore, the trial court's reference to "apparent playfulness" was limited to appellant's attempts to block A.E.'s pathway on the street and did not extend to his subsequent act.

Appellant also attempts to limit the force of the prior decisions in this jurisdiction not requiring lustful intent on the grounds that they were decisions in which the defendant touched genitalia. He argues that where genitalia are involved the sexual nature of the touching is clear and thus proof of specific intent is not required. But appellant's argument is premised on the assumption that where a man grabs and squeezes a woman's buttocks, the sexual nature of the touching is absent. Although genitalia may be the most private part of an individual's body, we are unpersuaded that the "commonly accepted community sense of decency, propriety and morality," In re Adams, 24 Wash.App. 517, 519-20, 601 P.2d 995, 997 (1979), does not, under any set of circumstances, contemplate the buttocks as an intimate part of the body deserving of protection from wandering hands. Id. 601 P.2d at 998 ("A person of common understanding should have no trouble in recognizing that hips and lower abdomen are private parts."). Consequently we are unprepared to hold as a matter of law that the unconsented to touching of the buttocks cannot be a sexual touching as to constitute an assault under section 22-504. Indeed, in jurisdictions with sexual assault and abuse statutes, the legislatures have defined sexual contact as the touching of the sexual or other intimate parts of the person which the courts have interpreted to include buttocks. See, e.g., People v. Stroman, 84 A.D.2d 851, 851, 444 N.Y.S.2d 166, 166 (1981); People v. Thomas, 91 Misc.2d 724, 727-28, 398 N.Y.S.2d 821, 824 (Crim. Ct. 1977); Oregon v. Buller, 31 Or.App. 889, 891, 571 P.2d 1263, 1264 (1977); cf. Parker v. State, 406 So.2d 1036, 1039 (Ala. Crim.App. 1981) (touching of mid-thigh and stomach); State v. Weese, 189 Mont. 464, 467-68, 616 P.2d 371, 374 (1980) (touching of belly and chest); State v. Pagel, 16 Or.App. 412, 413-14, 518 P.2d 1037, 1038, cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974) (touching of breasts); In re Adams, supra, 24 Wash.App. at 519-20, 601 P.2d at 997-98 (touching of hips).⁵

Appellant's reliance on Duvallon v. District of...