Introduction

Sexual Assault by Offensive Contact

Introduction

Many unwanted sexual acts fall short of intercourse, so they cannot be prosecuted as rape, and yet they are far more serious than the ordinary touching that supports a simple battery charge. Someone who gropes a stranger on a crowded train, or who grabs a coworker's breast and laughs it off, has done something the criminal law needs a way to punish, and a charge built for intercourse does not fit. Model Penal Code § 213.4 fills that gap with a separate misdemeanor called sexual assault. Many state codes follow the Code (the American Law Institute's model statute, abbreviated MPC) or borrow from it, so its structure is a useful template. The label itself varies from state to state: in one sense of the term sexual assault means intercourse without consent, and in the sense used here it means offensive sexual contact, exclusive of rape, an offense also known as indecent assault.¹

The offense begins with a stem that every subsection shares. Under § 213.4, a person who has sexual contact with another not his spouse, or causes such other to have sexual contact with him, is guilty of sexual assault, a misdemeanor, if one of the listed circumstances exists.² The stem ends in a conditional, so it defines nothing on its own. Liability attaches only when the prosecution also proves one of the alternative circumstances that follow, and the Code lists eight of them.³ Subsection (1) supplies the circumstance this chapter studies: the actor is guilty if "he knows that the contact is offensive to the other person."⁴ Two phrases in that clause carry the analysis. What makes contact offensive is the first question, and what it means for the actor to know it is the second.

Put together, the offense has three components. The physical component is sexual contact, which the stem requires whether the actor touches the other person or causes the other person to touch the actor. The status component is that the other person is not the actor's spouse. The mental component, the heart of subsection (1), is the actor's knowledge that the contact is offensive. This chapter teaches subsection (1) in full, and the other circumstances appear only as contrast, so that a reader can tell which route fits a given set of facts and when proving offensiveness is unnecessary. On an exam, the first task is to identify which subsection of § 213.4, if any, the facts support, because each carries its own mental or status requirement. The chapter takes the elements in the order just described and then sets subsection (1) against the alternatives, beginning with where this misdemeanor sits in the Code and how it relates to rape and to ordinary battery.