I have a case that came accross my desk that has me scratching my head. Defendant's wife has a friend over for the night. Defendant wakes girlfriend up in the middle of the night for a little unwanted affection. Victim (by the way, she used to be defendant's girlfriend) says defendant reached under her shirt, touched and kissed her breast. Defendant also laid on top of victim, stuck his hand down her shorts and rubbed her vagina. She says "Joe's fingers did not go inside me, but he did touch between the lip area and he did fondle that area." I understand that penetration, however slight, is still penetration. Bigger question is if there is no penetration, what charge do you have? Certainly Assault by Contact and probably unlawful restraint but what else. Seems like as long as you don't care about a Class C conviction, you can rub people's sexual organs at will. Can this be right?

No one seemed to offer a different solution last time around. Class C Assault. But, I would always consider charging such conduct as an attempt to commit sexual assault.

Please refer to page 30 of TDCAA's Ivestigation & Prosecution of Child Sexual Abuse. This is a great book. Vernon v State 841 SW2d 407 (Tex. Crim. App.1992)It's sexaul assault. Sounds like a nasty situation. Is the newest girlfriend protecting the Defendant??

These people are adults, right? I find it hard to believe that he made it all the way up her shirt, then down her pants, and at least partially in, and she didn't consent to any degree? Sounds a little like sour grapes, since she's the EX-girlfriend. I think this falls into the category of boorish behavior, knee him in the nuts, go tell the other woman that her guy is a jerk, The End. Maybe a Class C misdemeanor. I just find it hard to believe that someone would call the police over this unless they have an axe to grind.

For adults, the felony law seeks to identify some factual manner in which the sexual contact was resisted or imposed by force or deception. While that may not always be easy to identify, it does help strain out the claims that are merely regret.

While an "Attempted Sexual Assault" sounds good, you'd have a hard time with a jury of 12, getting them to believe that he would not have stopped, because obviously he did. I agree with the prior post that its hard to imagine a situation between adults where he rubbed her breasts, and then rubbed her nether-region, and NONE of it was consensual. I'd get his side of the story before the kick in the nuts.

I'm not advocating that anyone, in any official capacity, kick him in the nuts. That would be wrong. That's my advice to the "victim." That's what any woman defending her honor would do.

I don't think I'd be jumping to try those facts as presented, particularly as an attempted sexual assault.

Aren't you also going to have a serious problem with his awareness that she was not consenting? Assuming he stopped when she made it clear she did not want to participate (which it sounds like he did), then how do you show he knew it was without consent? Even for the attempt, you'd have to show that he intended to penetrate without consent, and how do you show that when he stopped without using any real force?