Sexual Assault Under the Code

Sexual Assault Under the Code

Section 213.4 is best read as one misdemeanor with a fixed front end and a menu of alternative back ends. The stem fixes what every prosecution must show: sexual contact with a person who is not the actor's spouse, whether the actor does the touching or causes the other person to touch him.¹ Each numbered subsection then supplies a circumstance that makes that contact criminal, and the subsections are listed as alternatives, so proof of any one of them completes the offense.² The eight alternatives sort by the reason the contact is wrongful. Subsections (2) and (3) rest on the other person's inability to appraise or perceive what is happening, subsection (5) on the actor's secret impairment of the other person's power to resist, subsections (4) and (6) on the other person's youth, and subsections (7) and (8) on the actor's authority over the other person.³ Subsection (1) needs none of these. It reaches contact between persons with no special relationship and asks only whether the actor knew the other person did not welcome it.⁴ The Code lists alternatives rather than a single test because the wrong arises from different sources, and any one element would either miss some of them or sweep in conduct that is not culpable.

The misdemeanor's place in the Code becomes clearer against the offenses for intercourse. Section 213.1 builds rape around sexual intercourse by a male with a female not his wife and makes it a felony of the second degree at its base grade, with gross sexual imposition ranking below it as a felony of the third degree.⁵ The contact offense sits beneath all of those tiers, and the reason lies in the way rape is constructed. In most jurisdictions rape requires some act of penetration, and assaults without penetration are usually classed as sexual battery instead, while the Code itself treats intercourse as a graver wrong than other sexual contact.⁶ That design leaves a gap. A groping with no penetration falls outside rape, and stretching rape to cover it would equate two very different harms, so the Code names the touching offense separately and grades it as a misdemeanor. The penetration focus is itself an inheritance: the common-law definition limited intercourse to penile-vaginal contact and took shape when rape was understood as an injury to the fathers and husbands who controlled women's reproductive capacity, which left acts that could not cause pregnancy at the margins.⁷ State codes draw the same line under their own labels. In Peña-Rodriguez v. Colorado, prosecutors charged unlawful sexual contact alongside attempted sexual assault on a child, and the jury convicted on the contact count while failing to reach a verdict on the attempt.⁸

General assault is the other neighboring offense, and it measures something different. The Code's simple assault covers attempting or causing bodily injury, negligently causing bodily injury with a deadly weapon, and menacing another with imminent serious bodily injury, so its questions concern harm and fear.⁹ Subsection (1) of § 213.4 asks neither question. The offense is complete when the actor makes sexual contact knowing it is offensive, with no bruise, no fear of injury, and no threat required, but the contact must be sexual, meaning a touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.¹⁰ Bodily injury inflicted without that kind of touching is therefore simple assault and not sexual assault, while a sexual touching that injures no one and frightens no one can still be sexual assault. Students lose this point when they look for penetration or injury before they will call an unwanted sexual touching a crime, because the Code asks for neither.

This chapter follows the Code's original text of § 213.4. The ALI has begun revising the Code, starting with its sexual offenses, and the revised Article 213 places its definitions of sexual contact and consent in a separate definitions section, so a jurisdiction's statute should be checked against whichever version it follows.¹¹ The next section turns to the physical component that every route through § 213.4 shares, which is sexual contact itself.