Other Routes to Liability

Subsection (1) is the one route through § 213.4 that depends on the other person's attitude toward the touching and on the actor's awareness of that attitude. The other seven alternatives define the wrong by a circumstance that exists whatever the other person felt: incapacity or unawareness, youth, or dependence on the actor. The Code lists eight circumstances in all, and they are alternatives, so the prosecution must establish only one of them together with the shared stem of sexual contact with another not the actor's spouse.¹ The Code numbers the circumstances (1) through (8), and some reprints letter them (a) through (h) in the same order. Students lose points when they treat a status route as a way around the stem, because the stem elements still apply under every alternative: the touching must be of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire, and the other person must not be the actor's spouse.²

The reason the Code supplies other routes is a problem of proof and of relevance. Subsection (1) makes the prosecution establish a contested fact, that the actor knew the other person did not welcome the contact.³ That fact is hard to prove when the other person cannot appraise or express a refusal, and it is beside the point when the other person is too young for welcome to carry meaning or is under the actor's control. The remaining subsections therefore point at the circumstance itself. They fall into three groups, taken in turn below as contrast with subsection (1), and a fact pattern usually signals the fitting route through a status such as sleep, a child's age, or a custodial relationship.

Incapacity and Unawareness

Three routes share one feature: the other person cannot appraise or perceive what is happening, so the question whether the touching is welcome has no meaningful answer. Subsection (2) applies when the actor knows that the other person suffers from a mental disease or defect that makes him or her incapable of appraising the nature of his or her conduct. Subsection (3) applies when the actor knows that the other person is unaware that a sexual act is being committed, as when the other person is asleep or unconscious. Subsection (5) applies when the actor has substantially impaired the other person's power to appraise or control his or her conduct by administering or employing, without the other's knowledge, drugs, intoxicants, or other means for the purpose of preventing resistance.⁴ The Code's list is commonly illustrated by two of these, the actor who knows the other person is mentally incapable of appreciating the nature of the conduct and the actor who has drugged the other person to prevent resistance.⁵

Each of these subsections exists because subsection (1) fits such facts poorly. Subsection (1) requires awareness of the other person's lack of welcome, and a person who is asleep, or who cannot grasp what the touching is, gives the actor no signal to perceive and may be unable to refuse in any form.⁶ An actor who exploits that silence could argue that nothing showed the contact was unwelcome. Subsections (2) and (3) answer by moving the knowledge requirement onto a fact the actor can observe directly, the incapacity or the unawareness itself, and they drop any need to prove that the contact was offensive. Subsection (5) has no knowledge clause at all.⁷ The actor's own act of impairing the other person without the other's knowledge, done for the purpose of preventing resistance, supplies the culpable state of mind and makes welcome irrelevant.

The limits of subsection (5) show how closely the text must be read. It reaches impairment that the actor caused by means the other person did not know about, so it does not describe an actor who merely finds the other person already intoxicated by his or her own choice.⁸ In that situation the prosecution looks to subsection (3) if the other person is unaware that a sexual act is being committed and the actor knows it, or to subsection (1) if the other person is aware and unwilling.

Hypothetical Illustration

Late at night, an actor finds a guest asleep on a sofa after a party and touches the guest's intimate parts to gratify himself. The guest does not stir. Subsection (1) is hard to prove, because the guest gave no signal that the actor could perceive. Subsection (3) fits, because the actor knows the guest is unaware that a sexual act is being committed, and the touching, the actor's purpose, and the absence of marriage satisfy the stem. Change one fact: the guest wakes partway through, pulls away, and tells the actor to stop, and the actor continues. As to the touching that continues, the guest is now aware, so subsection (3) no longer describes what is happening, and the route is subsection (1), with the refusal serving as the proof that the actor knew the contact was offensive.

Age of the Victim

Two routes make the other person's youth the fact that matters. Subsection (4) applies when the other person is less than 10 years old, and it requires no gap between the ages of the two people. Subsection (6) applies when the other person is less than 16 years old and the actor is at least four years older than the other person.¹⁰ The Code prints sixteen and four in brackets, so on an exam the figures supplied by the statute in the question control, and the Code's own figures apply when the question supplies none. Neither subsection contains a clause like subsection (1)'s requirement that the actor know the contact is offensive, so the prosecution proves the age facts and does not need to prove the other person's lack of welcome.

Each part of these routes has its own logic. The age ceiling removes the contested fact: for a child that young, welcome is not a meaningful measure, and requiring proof that the child resisted or understood would turn the trial toward the child's reactions instead of the actor's conduct. The gap in subsection (6) does different work. A touching between two adolescents of similar age lacks the advantage that makes the older person's conduct wrongful, and a requirement of several years confines the subsection to an actor who holds that advantage. Subsection (4) needs no gap because, below ten, the other person's age alone settles the matter.

Students lose subsection (6) when they stop at the other person's age and skip the gap, since a victim under 16 does not satisfy that subsection if the actor is less than four years older.¹¹

Custody and Supervision

Two routes rest on the actor's authority over the other person. Subsection (7) applies when the other person is less than 21 years old and the actor is the other person's guardian or is otherwise responsible for general supervision of the other person's welfare. Subsection (8) applies when the other person is in custody of law or is detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him or her.¹³ The two define the relationship differently. Subsection (7) pairs a young person with a caretaker and carries its own age ceiling, which is higher than the ceiling in subsection (6). Subsection (8) names a setting of confinement and the actor's authority within it, and it contains no age element.

The mechanism is dependence. A person whose daily welfare is in the actor's hands, or who is confined and subject to the actor's discipline, cannot refuse without risking consequences that the actor controls. Apparent welcome in that setting may be submission, and the person may say nothing at all, which would make it hard to prove under subsection (1) that the actor knew the contact was unwelcome. The Code does not ask that question. The authority itself gives the actor the advantage that the age gap supplies in subsection (6), so the abuse of the position is the wrong and no gap is needed.

The custody route has its own pair of facts. A corrections officer with disciplinary authority over an inmate who touches the inmate's intimate parts for sexual gratification falls within subsection (8) whether or not the inmate objects. A fellow inmate who does the same lacks supervisory or disciplinary authority, so subsection (8) does not describe the case, and the prosecution turns to subsection (1) or another route.¹⁴ Across all three groups, the choice of route follows the circumstance the prosecution can prove most directly, and the next section runs the whole offense on a single fact pattern, beginning with subsection (1) and moving to the alternatives when the facts show a status instead of an evident lack of welcome.

Incapacity and Unawareness

Subsection (1) asks how the other person felt about the touching and whether the actor knew it. Three other alternatives in § 213.4 ask a different question: whether the other person was in any condition to appraise or perceive what was happening at all. Each of the three still rests on the shared stem, so the prosecution proves a touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire, with another not the actor's spouse, and then adds one of the conditions below. The three are subsection (2), the mental disease or defect route; subsection (3), the unaware-person route; and subsection (5), the secret impairment route. They share a logic. A person who cannot understand the touching, or does not know it is occurring, may give the actor nothing to perceive and may be unable to refuse in any form, and that is exactly the signal on which subsection (1) depends.¹⁶

Subsection (2) applies when the actor "knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct."¹⁷ Two separate facts must be present. The condition must actually take away the capacity to appraise the nature of the conduct, so a diagnosis that leaves that capacity intact does not satisfy the text. And the actor must know of the condition, which means the mental state attaches to the other person's incapacity and has nothing to do with whether the touching was offensive. An actor who has no awareness of the condition lacks the knowledge the subsection demands, and the prosecution looks to subsection (1) or another route. The offense is built on incapacity because a person who cannot grasp what the touching is cannot meaningfully welcome it or reject it, so a rule that waited for proof of a refusal would depend on a response the person was never able to give.

Subsection (3) applies when the actor "knows that the other person is unaware that a sexual act is being committed."¹⁸ The text says a sexual act where the stem says sexual contact, and the practical course on an exam is to quote the subsection as written and apply it to the facts supplied. The paradigm is an actor who knows the other person is asleep or unconscious during the touching. The unawareness is itself the circumstance, so the prosecution proves the actor's knowledge of it and need not prove that the contact was offensive or that anyone objected. Tort doctrine on battery follows a parallel path for a parallel reason: a person who is asleep or anesthetized can still be battered, because the wrong lies in an unpermitted touching of the body, and the person's lack of awareness at the time does not erase it.¹⁹

Subsection (5) has a different structure. It applies when the actor "has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the other's knowledge drugs, intoxicants or other means for the purpose of preventing resistance."²² The text contains no clause requiring the actor to know anything about the other person's condition. The reason is that the actor created the condition, so the culpable state of mind comes from the purpose of preventing resistance, and the requirement that the means be used without the other's knowledge shows that the other person did not choose the impairment. That requirement also marks the limit of the subsection. A person who drinks heavily by choice has not been impaired by the actor's covert means, and the Code's rape provision, a different offense, draws a comparable line: an actor who surreptitiously drugs or gives liquor to the other person is liable, as is one who acts on an unconscious person, but nothing in that provision makes it an offense to have intercourse with a person who became drunk of their own volition and remains conscious.

Because the three routes ask about the other person's condition and the actor's knowledge or purpose, they are best run as a short sequence on any fact pattern that suggests the victim was impaired or oblivious.

Exam Analysis Steps

The sequence keeps the stem elements and the route-specific elements apart, so that a status fact is never mistaken for a substitute for the touching itself. The steps are these:

Confirm the stem: a touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire, with another who is not the actor's spouse.
Ask whether the other person's condition matches one of the three routes: a mental disease or defect that prevents appraising the conduct, unawareness that a sexual act is occurring, or impairment caused by the actor's secret use of drugs or intoxicants.
Identify the required state of mind for the route that fits, which is knowledge of the incapacity under subsection (2), knowledge of the unawareness under subsection (3), and the purpose of preventing resistance under subsection (5).
If the other person was aware and capable, or the impairment was self-induced and the person remained aware, return to subsection (1) and ask whether the actor knew the contact was offensive.

Hypothetical Illustration

At a dinner, an actor slips a sedative into a guest's drink without the guest's knowledge, intending to keep the guest from resisting, and once the guest is groggy and unable to control their movements, she touches the guest's intimate parts for her own gratification. Subsection (5) fits, because she impaired the guest's power to appraise or control conduct by employing a drug without the guest's knowledge for the purpose of preventing resistance.²³ Change one fact: the guest took a sedative tablet voluntarily, and the actor, who did nothing to bring on the drowsiness, takes advantage of it. Subsection (5) no longer fits, because the actor did not cause the impairment by secret means. The prosecution turns to subsection (3) if the guest is unaware and the actor knows it, or to subsection (1) if the guest is aware and unwilling.

Students lose subsection (5) when they skip the phrase without the other's knowledge and treat any intoxication as enough. The subsection describes impairment that the actor caused covertly and for the purpose of preventing resistance, while the other two routes in this group depend on what the actor knew about the other person's incapacity or unawareness. In none of the three does the prosecution have to prove that the contact was offensive.

Age of the Victim

Subsection (1) requires the prosecution to prove how the other person regarded the touching and that the actor knew the contact was unwelcome.²⁵ Two other alternatives in § 213.4 remove that burden by substituting a fact that records can establish, the other person's age. Both age routes still rest on the shared stem, so the prosecution proves a touching of the sexual or other intimate parts of the other person for the purpose of arousing or gratifying sexual desire, with another who is not the actor's spouse, and the age circumstance then stands where offensiveness and knowledge would otherwise stand.²⁶ The two routes differ in one respect: subsection (4) sets a single age line, while subsection (6) pairs a higher age line with a required gap between the actor and the other person.

Subsection (4) is the simpler route. It applies when "the other person is less than 10 years old."²⁷ The text says nothing about the actor's age and requires no gap, so the child's age alone completes the circumstance. The wording also fixes a boundary: a child of nine is within the subsection, and a child who has reached ten is outside it, so on a stem that gives the victim's age as ten the prosecution must look to subsection (6) or return to subsection (1). Students lose this point when they read less than 10 as if it meant ten and under.

The reason for dropping offensiveness at this age comes from what the alternative would require. Under subsection (1) the prosecution would have to show that a young child found the touching unwelcome and that the actor knew it, which turns the trial toward the child's reactions: whether the child protested, understood what was happening, or seemed to go along with an adult. For a child below ten, welcome is a poor measure, because compliance may reflect trust, confusion, or fear of an adult and says little about choice. Fixing the wrong at the age line keeps the trial on the actor's conduct and spares the child a cross-examination about apparent willingness.

Subsection (6) reaches older children and adds a condition. It applies when "the other person is less than [16] years old and the actor is at least [4] years older than the other person."²⁹ The brackets mark figures that the Code suggests and that a jurisdiction adopting the provision may adjust, so an answer should use the numbers in the governing statute and fall back on 16 and 4 when the problem supplies none. Two features of the wording matter. A gap of exactly four years satisfies the text, because the actor need only be at least that much older, and a person who has reached 16 falls outside the subsection however large the gap.

The gap does different work from the age ceiling. Two adolescents a year or two apart stand on roughly equal footing in experience and social standing, and a touching between them lacks the advantage that makes an older person's conduct wrongful. Requiring several years of difference confines subsection (6) to an actor who holds that advantage over a younger person. Contact between similarly aged teenagers is left to subsection (1), where the prosecution must prove that the contact was unwelcome and that the actor knew it.

Offenses defined by the victim's age form a category of their own, and the Supreme Court addressed one in Michael M. v. Superior Court of Sonoma County, which upheld California's statutory rape law against an equal protection challenge, even though the statute made intercourse with a female under 18 a crime that only males could commit.³¹ The Code's age routes contain no sex-based classification, since they speak only of the other person and the actor.³² Michael M. concerned intercourse and did not address § 213.4, so it illustrates the category without supplying any rule for these subsections.

A caution about versions is also in order, because the Code's later revised sexual-offense article grades minors differently. Its Fondling a Minor offense uses a victim younger than 12 with an actor more than five years older, or a victim younger than 16 with an actor more than seven years older, and it requires recklessness as to those age facts; its offense of offensive sexual contact with a minor uses the same two tiers.³³ Those figures belong to the revised Code. A problem that asks about the original § 213.4 uses an age below 10 for subsection (4) and an age below [16] with a gap of [4] years for subsection (6).

Exam Analysis Steps

Because the two routes differ only in whether a gap is required, a fact pattern that mentions the victim's age is best run in a fixed order, so that the age comparison comes before anyone asks whether the victim objected. The steps are these:

Confirm the stem: a touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire, with another who is not the actor's spouse.
Ask whether the other person is less than 10 years old, and if so treat subsection (4) as satisfied without any comparison to the actor's age.
If the other person is 10 or older but less than [16], subtract to find the gap and ask whether the actor is at least [4] years older, which satisfies subsection (6).
If neither route fits, return to subsection (1) and ask whether the contact was unwelcome and the actor knew it, or whether a route based on authority over the other person applies.

At no step does the prosecution prove that the contact was offensive, and the other person's apparent willingness does not change the analysis under the text of either subsection. The remaining alternatives, subsections (7) and (8), also dispense with offensiveness, but they depend on the actor's authority over the other person, which the next section takes up.

Custody and Supervision

The last two alternatives in § 213.4 also dispense with offensiveness, but they depend on the actor's authority over the other person, which the age routes never mention. Both still rest on the shared stem, so the prosecution proves a touching of the sexual or other intimate parts of the other person for the purpose of arousing or gratifying sexual desire, with another who is not the actor's spouse.³⁵ The authority relationship then stands where proof of offensiveness and of the actor's knowledge would otherwise stand.

Subsection (7) applies when "the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare."³⁶ Two features of the wording matter. The actor need not hold the formal title of guardian, because the clause also reaches anyone who is in fact responsible for the general supervision of the young person's welfare. The age line is higher than in the age routes, but it is still a line: a person who has reached 21 is outside the subsection however close the relationship, and students lose this point when they read less than 21 as if it meant 21 and under.

Subsection (8) applies when "the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him."³⁷ It requires two status facts, and both must be present: the other person is held in custody or detention, and the actor has supervisory or disciplinary authority over that person. The text sets no age limit, so an adult detainee is covered. It speaks of custody and detention, which points to confinement rather than mere presence in a building. The definition of sexual contact printed at the end of subsection (8) governs the whole section, so the touching and purpose requirements are the same here as in every other alternative.³⁸

The reason for defining these offenses by relationship follows from what control over a person's welfare, liberty, or discipline does to the meaning of apparent agreement. A ward who depends on a guardian for housing and support, or a detainee whose daily conditions and discipline a guard controls, may stay silent or appear to cooperate because a refusal would be costly or impossible. If subsection (1) were the only route, the trial would turn on whether the victim protested, and the actor would argue that the victim went along. Fixing the wrong at the relationship removes that inquiry at the source. The same logic appears in the law of rape, where some legislatures have made it a crime to have intercourse with a person over whom the actor holds a position of trust or authority.³⁹

On an exam stem, the triggers are words such as guardian, caretaker, guard, warden, or an institution that holds the victim. A single stem may satisfy more than one alternative, such as a guardian who touches a ten-year-old ward, and any one alternative that fits completes the offense. In both routes the relationship defines the offense, so the victim's silence or apparent cooperation does not substitute for the status fact and does not defeat it.