State v. Turner

• Decision Date: 13 March 1978
• Citation: 33 Or.App. 157,575 P.2d 1007
• Parties: STATE of Oregon, Respondent, v. Ben Leo TURNER, Appellant.
• Court: Oregon Court of Appeals

Page 1007

575 P.2d 1007

33 Or.App. 157

STATE of Oregon, Respondent, v. Ben Leo TURNER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 1977.

Decided March 13, 1978.

Harold A. Fabre, Pendleton, argued the cause for appellant. With him on the brief was Fabre & Ehlers, Pendleton.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before TANZER, P. J., and JOHNSON and ROBERTS, JJ.

TANZER, Judge.

Defendant appeals from his conviction of sexual abuse in the first degree, ORS 163.425, ¹ for having touched the breasts of a seven-year-old girl for the purpose of gratifying his sexual desires. Defendant moved for a judgment of acquittal, contending that the undeveloped breasts were not within the meaning of the sexual abuse statute. He requested an instruction that they were within the statute or not according to the circumstances ² and he excepted to an instruction that breasts were within the statute as a matter of law. ³ He assigns adverse rulings on each as error.

We have hitherto recognized that genitalia and breasts are intimate parts as a matter of law under ORS 163.305(6); State v. Pagel, 16 Or.App. 412, 518 P.2d 1037 rev. den., cert. den. 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974). That case dealt with an adult victim and the reasoning did not distinguish between adults and children. Here, the issue squarely presented by the denial of the motion for judgment of acquittal, defendant's requested instruction and the instruction given is whether the breasts of a prepubescent female child are also intimate parts within the meaning of ORS 163.305(6).

At the outset, it should be clear that the critical term is "intimate parts," not "sexual parts." In the statutory phrase "sexual or other intimate parts," the word "sexual" is an included illustrative term of the word "intimate." It is not a distinct concept as if the statute had said instead "sexual or intimate parts." The Criminal Law Revision Commission deliberately chose the term "intimate parts" in order to broaden the protection of the statute and avoid narrow judicial construction such as the holding in State of Oregon v. Moore, 194 Or. 232, 240-41, 241 P.2d 455 (1952), where the Supreme Court held that female breasts are not "private parts" because they are not genital organs and were therefore fair game for lecherous touching under a former statute.

There are three possible approaches to the issue:

(1) A child's undeveloped breasts are not intimate parts as a matter of law. This approach is embodied in the motion for judgment of acquittal.

(2) They are or are not according to the circumstances. This is the theory of defendant's requested instruction.

(3) They are intimate parts as a matter of law. This approach underlies the excepted instruction.

(1) Not intimate as a matter of law

The first approach is wrong because it would fail to advance the statutory purpose. ORS 163.425(1)(a), which enhances the degree of the crime of sexual abuse if committed against children under 12, bespeaks a legislative intent to give greater protection of the law against sexual abuse to prepubescent children than to older persons. It would be contradictory to hold that immature body parts are not within the scope of a statute which purports to give greater attention to children. Thus, some body parts of children must be within the meaning of "intimate parts" even though immature or undeveloped. The question is: which parts?

Undeveloped breasts may not be excluded from the class "intimate parts." There can be no serious contention that the genitalia of prepubescent children are not within the meaning of the phrase "intimate parts" even though they have not yet developed from purely excretory to sexual parts. The law should be construed to protect children from the possible psychological effects, present and future, of lascivious handling of their bodies. Within the purpose of the statute, nondeveloped female breasts are entirely analogous to sexually nondeveloped genitalia. Children sense these things. If they do not know now, they are likely later to know and react to the significance of such events whether they concern the breasts or genitalia. There is no reason to exclude breasts of children from the statutory coverage.

Therefore, we do not conclude as a matter of law that undeveloped parts of children's bodies are not intimate parts. Defendant's motion for judgment of acquittal was properly denied.

(2) The circumstantial approach

This approach, embodied by defendant's requested instruction and advanced by the dissent, would hold that body parts are intimate or not according to the circumstances of the individual case. The appeal of this approach is that it allows judges to avoid tough questions of law by bucking them to juries under vague instructions. The doctrine is superficially appealing, but it does not stand analysis.

It makes no sense to say that whether sexually undeveloped genitalia, if they can even be called "genitalia" at that stage, are intimate or not under the statute is determined by the circumstances. If the statute has any application to children at all, then the statute must assume that children have parts which are intimate. It would be unreasonable to conclude, however, that the intimacy or not of a child's body part is to be regulated by circumstances. What circumstances? Is a child who displays a bare bottom or chest with an innocent lack of self-consciousness not protected by a statute which grants protection to a child who does so with modesty or shame that bespeaks a precocious sense of intimacy? Such an approach could not have been legislatively intended, would achieve no societal benefit and would create horrendous problems of proof.

The most basic problem with the approach is its superficiality. It poses a larger question than it purports to answer. It would not be enough to hold that intimacy or not depends upon the circumstances of the case and send cases to the jury under a vague instruction such as that proffered by defendant. Each jury would write its own statute. Such an interpretation and application would subject the statute to colorable attack as void for vagueness. As the Supreme Court held in State v. Hodges, 254 Or. 21, 27-8, 457 P.2d 491, 494 (1969):

"A law that is too vague for reasonable adjudication is bad on two grounds. A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws. See Oregon Constitution, Art. I, § 21.

"It was argued in the case at bar that the jury should be permitted to exercise its own common sense and good judgment on the causes of delinquency, but this argument begs the question. Without a legislative declaration of standards, the trial court would have no basis for submitting one case to a jury and refusing to submit another case to a jury. Further, the trial jury would have no basis for deciding that a given course of conduct tended to endanger the welfare of a child, or that it had no such tendency. Some degree of ad hoc legislation by juries in finding defendants not guilty may be unavoidable and socially desirable to ease the edges of the criminal law, but the free-wheeling power to legislate so as to find a defendant guilty should not be institutionalized in a criminal statute. Such a statute not only creates a serious danger of inequality in the administration of the criminal law, but it runs squarely contrary to the purpose of Oregon Constitution, Art. I, § 21, which prohibits the delegation of legislative power."

We have upheld the constitutionality of the statute as it applies to genitalia and breasts as not void for vagueness because those parts are within the statute as a matter of law and not as a matter of circumstance. State v. Pagel. ⁴ We need not and do not give renewed color to such a challenge to the statute by unnecessarily construing it to include children's body parts only if circumstances suggest such inclusion. The situational approach is untenable and defendant's requested instruction was properly refused.

(3) Intimate as a matter of law

This is the only sound approach. As a matter of law, a part of the body is either intimate or not, i. e., is either within or without the scope of the statute. The situational aspect of the statute is found not in the " intimate parts" clause, but in the subsequent clause which deals with the intent of the actor: "for the purpose of arousing or gratifying the sexual desire of either party." Thus, a touching of an intimate part is a crime only if a circumstance of the touching is a sexual purpose. If the touching is not for sexual purposes, the sexual part is no less sexual and the intimate part is no less intimate, but the touching is not criminal.

As we pointed out in Pagel, breasts are intended by the statute to be regarded as intimate parts as a matter of law. The Commentary refers to three things which are meant by "intimate parts": (1) "genitalia," (2) "breasts," and (3) "whatever anatomical areas the trier of fact deems 'intimate' in the particular cases which arise." Thus, "genitalia" and "breasts" are specifically comprehended by the term in any event. The circumstantial and community standards tests are applicable only to other "anatomical areas" and not to genitalia and breasts:

"The inclusion of the words 'or other intimate parts' does not limit the touching to genitalia but is intended to include genitalia, breasts and whatever anatomical areas the trier of fact deems 'intimate' in the particular cases which arise. Thus the ultimate decision of 'intimate' parts is left to the community sense of decency, propriety and morality." Proposed Oregon Criminal Code 122, Commentary §§ 115 and 116 (1...