State v. Bolsinger, 03-0823.

• Decision Date: 10 February 2006
• Docket Number: No. 03-0823.,03-0823.
• Citation: 709 N.W.2d 560
• Parties: STATE of Iowa, Appellee, v. John Michael BOLSINGER, Appellant.
• Court: Iowa Supreme Court

709 N.W.2d 560

STATE of Iowa, Appellee, v. John Michael BOLSINGER, Appellant.

No. 03-0823.

Supreme Court of Iowa.

February 10, 2006.

Murray W. Bell of Murray W. Bell, PC, Davenport, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

LARSON, Justice.

John Michael Bolsinger appealed his convictions of third-degree sexual abuse under Iowa Code section 709.4(1) (2001), sexual exploitation by a counselor under Iowa Code section 709.15(2), and sexual misconduct with juvenile offenders under Iowa Code section 709.16(2). Bolsinger was sentenced to a combination of concurrent and consecutive sentences totaling a term not exceeding thirty-seven years. The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse his conviction for sexual abuse, affirm the remainder of the convictions, and remand.

I. Facts and Prior Proceedings.

Bolsinger was the program supervisor of a highly structured state facility for delinquent boys, the Wittenmyer Youth Center, in August 2001 when the Iowa Department of Human Services (DHS) conducted an investigation into allegations of sexual abuse by Bolsinger. The investigation revealed, through interviews with past and present youth at the camp, that Bolsinger would take boys into a private room and touch their genitals, saying he was checking for bruises, scratches, hernias, and testicular cancer. The testimony of the boys revealed that Bolsinger asked permission to touch them in this way and that he did not appear to them to be gaining any sexual gratification from the touching. The boys testified that they were not aware that they were being touched in a sexual manner, and they would not have consented if they had known the true reason for the touching. However, they also testified that, given the nature of the structured program, it was almost impossible for them to make choices of their own or to refuse the request of an instructor.

Following the DHS investigation, Davenport police officers obtained a search warrant for Bolsinger's home and seized a number of items, including the defendant's home computer. The computer's hard drive contained, among other things, numerous stories involving unidentified males engaging in sex acts with each other. Prior to trial, Bolsinger filed a motion to suppress evidence seized from his home, which was denied by the court.

II. Issues.

Bolsinger's appeal raises three issues: (1) the court's interpretation of Iowa Code section 709.4(1) (third-degree sexual abuse), (2) its denial of his motion to suppress, and (3) its refusal to direct verdicts in his favor on all counts on the basis his acts were not "sex acts" under the Code. Bolsinger raises other issues, which we do not expressly discuss because their resolution is subsumed in other holdings in this case.

III. Interpretation of Iowa Code Section 709.4(1) (Third-Degree Sexual Abuse).

Under Iowa Code section 709.4,

[a] person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:

1. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.

In applying the "force or against the will" language of section 709.4, the court submitted Instruction No. 21:

Concerning [the third-degree sexual abuse counts] the State must prove that the defendant committed a sex act "by force or against the will" of the alleged victim in that Instruction. In order to do so, however, the State does not have to prove that the alleged victim physically resisted the defendant's acts. The force used by the defendant does not have to be physical. An act may be done "by force and against the will" of another if the other's consent or acquiescence is procured by:

1. threats of violence; or

2. deception, which may include deception concerning the nature of the act or deception concerning the defendant's right to exercise authority over the other under the circumstances.

You may consider all of the circumstances surrounding the defendant's act in deciding whether the act was done by force or against the will of the alleged victim.

(Emphasis added.)

The court stated that its authority for giving this instruction was found in Iowa Code section 709.5, which provides:

Under the provisions of this chapter it shall not be necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.

(Emphasis added.) The court also relied on the case of State v. Vander Esch, 662 N.W.2d 689 (Iowa Ct.App.2002). In Vander Esch the defendant, an owner of a pizza restaurant, employed teenage boys. He informed two of these employees that he was doing a scientific research project and asked them to provide him semen samples for this purpose. He promised to pay $50 for the samples should their sperm count be high enough. VanderEsch was present during the procedure and took possession of the semen samples. Vander Esch, 662 N.W.2d at 691. VanderEsch was not authorized by any scientific body to collect semen samples, and the victims indicated that they would not have consented to these acts had they known that no scientific research existed. Id. VanderEsch was charged with four counts of third-degree sexual abuse under Iowa Code section 709.4(1). He argued that the definition of sexual abuse, as set out in Iowa Code section 709.1(1), set forth the only means recognized in Iowa to negate consent and that neither fraud nor deceit did so. Id. at 691.

Our examination of the issue must begin with Iowa Code section 709.1(1), which defines sexual abuse and provides that certain circumstances will vitiate a victim's consent:

Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:

1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.

In Vander Esch the district court ruled that, in view of the fact that Iowa Code section 709.5 permits the consideration of all surrounding circumstances, section 709.1(1) is not exclusive and fraud and deception may vitiate consent. The court of appeals upheld that decision, classifying the fraud in question as fraud in fact, as opposed to fraud in the inducement (concepts we later discuss), and therefore, the act was done "by force or against the will" of the boys.

Bolsinger argues that the acts which occurred were hand-to-genital contact, which was expressly agreed to by the boys. He argues that his unexpressed purpose, apparently sexual gratification, was collateral to the act itself and, therefore, constituted fraud only in the inducement. As such, the fraud does not vitiate consent, according to him. Bolsinger also argues that Vander Esch, relied on by the court of appeals (which divided four to four on the question) and the district court in the present case, was incorrectly decided and should be overruled. Bolsinger argues that Vander Esch erroneously characterized the consent to semen sampling as being produced by fraud in fact, and therefore, any consent was vitiated.

If an act is done that is different from the act the defendant said he would perform, this is fraud in fact. If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement. Fraud in fact vitiates consent; fraud in the inducement does not. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law ch. 9, § 3, at 1079 (3d ed.1982) [hereinafter Perkins & Boyce]. In other words,

if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).

Id.; accord Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at 506 (2d ed.2003) (stating that "fraud in the factum involves a form of deception which results in a misunderstanding by the victim as to the very fact of the defendant's conduct").

Cases illustrating fraud in fact have often involved victims undergoing medical examination or treatment. In many cases, the victims consented to an examination, only to find that the doctor engaged in sex acts. See, e.g., People v. Ogunmola, 193 Cal.App.3d 274, 238 Cal.Rptr. 300, 304 (1987) (patient who consented to gynecological examination was in fact subjected to a sex act; consent held to be vitiated); McNair v. State, 108 Nev. 53, 825 P.2d 571, 575 (1992) (sex acts under pretense of performing medical examination held to be against the will of the victim). See generally regarding fraud in fact in "doctor" cases, Jay M. Zitter, Annotation: "Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished Under the Pretext of, or in the Course of, Medical Treatment," 65 A.L.R.4th 1064 (1988); 75 C.J.S. Rape § 22, at 334 (2002). One treatise discusses fraud in these cases:

In some of these cases the doctor has not hesitated to make it clear that he intended to have sexual intercourse with the patient, his fraud being in...