Are the 11 enumerated lack of consent criteria in 22.011(b) exclusive. Fact scenerio: Doctor is examining a coworkers groin area. During the exam the doctor digitally penetrates coworkers vagina without warning. This act was not part of the exam. Subsection (9) is non-applicable. Criminal or just ungenltmanly?

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Thanks!

There goes my attempts at trying to remain as anonymous as possible. Yes I am a member and an ADA in Denton County. This question was posted at the request of my supervisor.

Thanks, Tony. We just have to make sure.

I don't know whether the list under 22.011(b) is exclusive or not, but you might review Suarez v. State, 901 S.W.2d 712 (Tex. App. - Corpus Christi 1995, op. on reh'g, pet. ref'd). It upheld a sexual assault conviction by a male midwife under the (b)(3) theory ("physically unable to resist"), even though the woman was not under any physical disability per se. You might also try to run at it under (b)(5) ("unaware"), although there doesn't seem to be any annotations under that theory.

We've had this problem before, and have batted around the idea of proposing an amendment to that statute to the Lege. We had a case here where a male employee of a nail salon is performing a "free bikini wax" to a young (= stupid) female customer, and while she's having her bikini wax done, he sticks his finger in her. It didn't seem to fit the statute. I don't like the only choices being criminal or ungentlemanly, though. I'd include perverted, creepy, and just plain wrong.

What about attempted sexual assault? I also think (5) may have an application here. Victim thinks she's getting waxed/examined and gets the suprise, and thus is unaware of the assault until complete. The practice commentary from the '74 Code (under Rape--that was before they moved rape to Chap. 22) may shed some light here. That section is also applicable to fake doctors doing gynecological exams. We live in a sick world.

Sec. 1 "compels the other person to submit or participate by the of physical force". Digital penetration requires physical force. If consent in fact has not been given for penetration, force makes the act unlawful.

Thanks Shannon and John for your help, we will take a look at those options.