A 17 year old walks up behind a 15 year old girl, reaches around and grabs her breast without her consent. It is an affirmative defense to the charge of indecency with a child if the actor is not more than 3 years older and did not use duress, force, or a threat against the victim. Does the affirmative defense apply making this a class C or has some degree of force been used simply by grabbing her breast without her consent?
Great. Another breast question. No really this is a great question. Maybe some case has answered it, but just looking at the statute I have to say I was taught this defense was designed to cover consensual "experimenters". While not worded in those terms (actually focusing on the actor's use of force rather than the female's consent), because duress and threats are also mentioned you should be able to argue the sexual contact was "forced" upon her. It might be preferable to allege the actor caused the child to engage in sexual contact by the use of force. Does that mean you should necessarily prosecute the case as a second degree-- nope.
I wanted to start a discussion about the degree of force necessary under 21.11 (b) (1) and (2)when consent was not given for the sexual contact. I did not want to give a lot of details.
Let me try another example. A 16 year old girl and a 16 year old boy were at a party. They left in a vehicle with another individual driving. She passed out in the back seat probably because of alcohol. The 16 year old boy took her clothes off and engaged in sexual contact. There is no evidence of penetration. She regained consciousness, protested and was taken home. Mother was told and they went to the police. What is the offense? Did he use force when he took off her clothes and engaged in sexual contact when she was not capable of giving consent?
There is a vast difference between the two scenerios.
Scenerio Number 1: He used force because he grabbed her without her consent. That is forced, he used physical strength to accomplish this. And, because he could have just as well grabbed her pinky finger, the presumption is his sexual gratification because he grabbed her breast.
Scenerio Number 2: Who is testifying, and what is being testified to? Is the driver saying what happened while he was driving? How did he see? What does she remember? How much of her clothing was off? What can she testify to? I know you don't want to get too far into the details, but the details make or break a case like that. Because 21.11 does not make consent an issue for the case in chief, if the defendant raises his affirmative defense, I believe you should be able to argue that he knew (or should have known) the victim was unconscious or physically unable to resist, and if she had been conscious, she would not have consented, would have resisted, (maybe she has resisted his advances in the past)and that is why he waited until she passed out. She did wake up and immediately protest. What was she protesting?
Therefore, his argument that he did not use force, threat, or duress against the victim should be countered with the argument that she was unconscious, unable to appreciate force, threat or duress, he knew that and molested her without her consent, and committed indecency. Good luck, those are hard cases. My heart goes out to you.
To me the details are not important for the purpose of this discussion. We can assume that I can meet the burden of proof in the case through a confession, witnesses etc. If not, then I have bigger problems than whether he can use the age and lack of force as a defense.
It appears to me that there may be a problem with the statute. For example, since consent is not an issue in the statute, does someone who is less than three years older than the victim have a license to engage in sexual contact with a child when the child is not capable of giving consent? This could also occur in the case of mentally retarded victims and through the use of a date rape drug. Regardless of the facts in my case, I am struggling with the question of what degree of energy expended is the use of force under this statute.
Mike, all I was trying to say is that the intent of the law (which is duplicated in 22.011 (e) but only where the child has consented, since the defense does not apply to an(a)(1) offense)was to exempt younger persons who desire to mutually experiment with sexual contact with each other. I would argue it simply should not be given an interpretation that gives girls less than 17 no more protection than females 17 or older (based solely on the age of the actor relative to the "victim")because "force" is effectively equated with "duress" or "threats" (words which more clearly conjure up lack of consent without expressly saying so). In other words, it is such force as would negate consent under the circumstances presented, whether it explicitly says that or not. The desired relationship or connection between force and consent is exemplified in how we interpret 22.011(b)(1). Otherwise I could easily say the female was "compelled" to participate merely by the male's use of physical force whether she was receptive to that force or not. The old rape law actually referred to "force sufficient to overcome earnest resistance", again signifying there is a link between force and consent. In a sense the statute is too narrow because some degree of force (movement) will always be required to "engage" in the contact and thus the defense could never be proved. In the other sense it is too broad or ambiguous because the actor says "I did not use any more force than was necessary to accomplish the result (contact) which could not be the "force" referred to". If there is no argument the female consented and he confessed to all the elements but just wants to be excused because of his age, I say take it to trial. Otherwise there will be a lot of grabbing going on.
