Sexual Contact Defined

Sexual Contact Defined

Section 213.4 builds every route to liability on the phrase "sexual contact," so the physical component of the offense depends on what that phrase means. The Code answers in one closing sentence: "Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire."¹ The stem then runs the concept in two directions, because it reaches an actor who has sexual contact with another person and an actor who causes the other person to have sexual contact with him.² Taken together, the definition and the stem describe three things a prosecutor must be able to show about the act itself: a touching of an intimate part, a sexual purpose behind that touching, and, when the victim did the touching, that the actor caused it.

The definition's place in the printed text invites a mistake. It appears immediately after subsection (8), the custody and supervision circumstance, and in some printings it trails the last lettered alternative, so a hurried reader may take it for part of that final subsection.³ Its position is a drafting convention. A definition of a term used in the stem has to govern wherever the stem governs, and the stem governs all eight alternatives. If the sentence belonged to subsection (8) alone, subsections (1) through (7) would use "sexual contact" with no definition at all. The sentence is therefore a definition attached to the stem, not a ninth circumstance and not an element of subsection (8). Students lose this point when they read the definition as a feature of subsection (8) only, because that reading leaves every other route without a meaning for its central term.⁴

The consequence for subsection (1) is specific. The contact whose offensiveness the actor must know about is the defined contact, so an unwelcome touching that falls outside the definition cannot support the charge, no matter how strongly the other person objected.⁵

The definition exists because touching, including sexual touching, is ordinary and lawful between consenting adults, so the offense needs a way to single out the conduct that invades sexual or bodily privacy. Each part of the definition contributes to that sorting. The intimate-parts requirement marks the areas of the body where the invasion occurs, which leaves an unwelcome touch of a hand or shoulder to the ordinary law of battery. The purpose requirement identifies the touching as sexual, which keeps the offense from reaching contact with an intimate area for some non-sexual reason. The reverse form closes the gap the first two parts would otherwise leave: an actor who compels the other person to do the touching invades that person's privacy just as surely, even though the actor's own hands never move. Some state reforms reach a similar result from the opposite direction, treating unauthorized sexual touching as the sexual counterpart of ordinary battery.⁶

The next three subsections take these parts in the order just given, beginning with the touching of intimate parts.

Touching Intimate Parts

The physical act behind every route through § 213.4 is a touching of a particular region of the body. The Code's definition of sexual contact begins with the words "any touching of the sexual or other intimate parts of the person," and that phrase supplies the act itself, leaving the sexual purpose that completes the definition for the next subsection.⁸ Two features of the wording do the work. The word "any" attaches no threshold of force and no minimum duration to the touching, so the definition does not ask how hard the actor pressed or how long a hand stayed in place.⁹ The reference to sexual or other intimate parts fixes the one variable the definition does measure, which is where on the other person's body the touching occurred. Students lose this element when they ask how forceful or how prolonged the touching was, because the definition asks which part of the body was touched.¹⁰

The text does not say which parts of the body count. It supplies no inventory, and this chapter does not add one that the statute omits. The obvious cases, such as the genitals and the buttocks, plainly qualify. The words "other intimate parts" signal that the category extends beyond the sexual organs themselves, though they leave its outer edge to common understanding and to the decisions of a given jurisdiction.¹¹ The revised Code handles the same question differently. The first category of acts in its definition of sexual contact is touching the clothed or unclothed genitalia, anus, groin, breast, buttocks, or inner thigh of any person, so it names the areas and says that clothing does not matter.¹² The 1962 text contains neither the list nor the clothing language, so the phrase "any touching" is the only wording a student should rely on when applying § 213.4 as written, and a local statute should be checked for anything more.¹³

The limit to intimate parts exists to focus liability on the areas of the body most closely tied to sexual and bodily privacy. Without it, any unwelcome touching, down to a tap on the shoulder, could be recharacterized as a sexual offense, and the line between this misdemeanor and ordinary battery would disappear. In tort law, battery already covers unconsented offensive contact with another person's body, and offensive contact there means contact that a person of ordinary sensibilities would not consent to.¹⁴ An unwelcome touching of a part of the body that is not intimate therefore stays within that more general law, and the sexual-assault definition is reserved for the invasion of privacy that attaches to intimate areas.

The ordinary contacts of a shared public space show the same line from the other side. A tap on the shoulder to get someone's attention and a light jostle in a crowded car both fail the physical element, because neither touches a sexual or other intimate part. The jostle also fails a second, independent test. Under the tort standard, a light and incidental brush in a crowded subway car is not offensive contact, while a deliberate grope on a bus is, because the question is what a person of ordinary sensibilities would not consent to.¹⁵ The two layers matter because a touching of an intimate part is necessary but not sufficient. Since the physical element sets no minimum of force or duration, a fleeting contact can satisfy it, and the work of screening out accidents falls to the purpose requirement and to the actor's knowledge that the contact is offensive, which the next subsection and a later section take up.¹⁶

Purpose of Sexual Gratification

The touching of an intimate part is only half of what the Code's definition requires. The same sentence that defines sexual contact goes on to say that the touching must be "for the purpose of arousing or gratifying sexual desire."¹⁸ Because that sentence is a definition attached to the stem of § 213.4, the purpose clause travels with the phrase "sexual contact" into every subsection, and it supplies a mental ingredient of the contact itself. That ingredient concerns the actor's aim in touching. It therefore differs from the question subsection (1) adds on top of the contact, which is whether the actor knew the contact was offensive to the other person, a point a later section takes up.¹⁹ The purpose clause asks why the actor touched, and the knowledge element asks what the actor knew about the other person's attitude.

The definition builds in a purpose because intimate parts are touched constantly for reasons that have nothing to do with sexual desire. Physicians examine them, nurses and aides clean them, parents bathe small children, and a crowded space produces incidental brushes. If the physical element stood alone, every one of those touchings would satisfy it, since "any touching" sets no minimum of force or duration, and liability would then hang entirely on how the other person reacted. The purpose clause does two jobs that prevent this. It excludes touching with an innocent explanation, such as treatment or hygiene, and it excludes touching with no aim at all, such as an accidental brush. In both situations the actor's aim is what turns contact with a body part into a sexual violation.

Tort law offers a clear picture of the conduct the clause targets, though it is tort law and not the Code. A surgeon who touches patients in inappropriate places while they are under anesthesia, in ways their treatment does not call for, commits a battery, and a patient can recover even without knowing the touching occurred.²⁰ The anesthesia removes any treatment explanation, and what remains is a touching of an intimate area with no aim except the surgeon's own gratification. Carried over to the Code, those facts supply both the touching of intimate parts and the purpose of gratifying sexual desire, so the definition of sexual contact is met. Whether subsection (1) is the best route for such facts is a separate matter, because an anesthetized patient cannot perceive the touching and § 213.4 has a different circumstance for a person the actor knows is unaware that a sexual act is being committed. The later section on other routes to liability draws that contrast.

The purpose clause and the knowledge element are independent of each other, and the clearest way to see this is to vary one while holding the other fixed.

Only a touching of an intimate part for a sexual purpose, done with knowledge that it is offensive, satisfies subsection (1). Purpose without knowledge falls short of the subsection, and knowledge without purpose falls short of the definition. Students lose this point when they treat the other person's objection as proof that the contact was sexual, because the purpose clause looks to the actor's aim, whatever the other person's reaction.

The wording of the clause also differs from the revised Code, which matters when a jurisdiction follows one text or the other. The 1962 clause does not say whose desire must be aroused or gratified. The revised Article 213 defines sexual contact as certain touchings "when the actor's purpose is the sexual arousal, sexual gratification, sexual humiliation, or sexual degradation of any person."²¹ That text makes the purpose the actor's own and reaches touching meant to humiliate or degrade as well as touching meant to arouse, so a touching aimed only at degradation is a closer question under the original wording than under the revision. The next subsection takes up the reverse form of the offense, in which the actor causes the other person to do the touching.

Causing the Victim to Touch

The stem of § 213.4 describes two ways of committing the contact on which every subsection builds. A person is within the stem who "has sexual contact with another not his spouse," and the same sentence adds a person who "causes such other to have sexual contact with him."²³ The first phrase covers the familiar case in which the actor's own hand or body touches the other person. The second phrase shifts the question from whose body moved to who brought the contact about. An actor who seizes the other person's hand and presses it against the actor's own groin has not touched anyone in the ordinary sense, yet has caused the other person to have sexual contact with him. Both forms satisfy the stem, and the offense that follows is the same misdemeanor either way.

The reverse form exists because the wrong to the other person does not depend on which of two bodies did the moving. If liability turned only on the actor's own touching, an actor who compelled the victim to do the touching would fall outside the offense, even though the invasion of the victim's bodily autonomy is the same as when the actor's own hand is the instrument. The gap would also invite a particular kind of evasion, because an actor could arrange the encounter so that the victim's hand makes every contact and then argue that he never touched anyone. By asking who caused the contact, the stem closes that route at its source, and the actor's choice to use the victim's body as the instrument does not move responsibility away from him.

Nothing else about the offense changes in the reverse form, because the definition of sexual contact attaches to that phrase wherever it appears in the section. The touching must still be of the sexual or other intimate parts of the person, and it must still be done for the purpose of arousing or gratifying sexual desire.²⁴ In the usual compelled-touching case the intimate part is the actor's own, since the victim is made to touch him, and the purpose is the actor's own gratification. The 1962 clause does not say whose desire must be served, but the actor's aim is the natural reference point when the actor engineered the contact. Subsection (1) also still asks whether the actor knew the contact was offensive to the other person, so an actor who guides a willing partner's hand to the same place has caused sexual contact but has not committed the offense under that subsection.²⁵

The revised Article 213 states the same idea more expansively, and comparing the two shows how far the 1962 stem reaches. The revised definition of sexual contact says the touching includes the actor touching another person, another person touching the actor or a third party, or another person touching the other person's own body, while it excludes the actor touching the actor's own body.²⁶ The actor touching another is the direct form, and another person touching the actor is the reverse form that the 1962 stem describes. The revised text adds two arrangements: the other person touching a third party and the other person touching that person's own body. The 1962 stem speaks only of causing the other person to have sexual contact with the actor, so those further arrangements fit it less clearly, and a student applying the original § 213.4 should treat the revised wording as a comparison rather than as part of the 1962 rule.²⁷

The reverse form still requires a touching, and that requirement marks its outer limit. Conduct that involves no contact in either direction, such as exposing oneself from a distance, is outside the definition however clearly it is aimed at sexual gratification.²⁸ Other statutes may reach such conduct, but § 213.4 does not.

Students lose this issue in two opposite directions. Some assume the offense requires the actor's own hands to move, and others assume that any sexually motivated conduct will do. The stem asks whether a touching occurred and who brought it about, so a compelled touching is covered and a display with no touching is not.²⁹