Applying the Offense

Applying the Offense

Subsection (1) is the one alternative in § 213.4 that turns on two facts no document can establish: how the other person regarded the touching, and what the actor knew about that reaction.¹ The earlier sections taught each element separately, and this one runs them together in the order a fact pattern should be tested. The stem comes first. A person who has sexual contact with another not his spouse, or who causes that other person to have sexual contact with him, commits the misdemeanor of sexual assault if one of the listed circumstances exists.² Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.³ Only when the stem is satisfied does subsection (1) add its own circumstance, that the actor "knows that the contact is offensive to the other person."⁴

The sequence follows the order in which these cases are usually contested. Defendants in sexual-assault prosecutions often concede that contact occurred and maintain that it was welcome, so the touching and the status of the parties rarely decide the outcome.⁵ In acquaintance cases the other person's lack of agreement may be plain on the facts, which leaves the live question whether the prosecution can prove that the actor knew agreement was missing.⁶ Subsection (1) writes that question into its text, so the analysis should end on it, after the elements that facts and records can usually establish have been checked.

Steps three and four are separate proofs, and the second does the decisive work in a contested case. Offensiveness describes the other person's side of the encounter, while knowledge describes the actor's, and the text asks what the actor knew rather than what a reasonable person in the actor's position would have noticed.⁸ Students lose points when they establish that the contact was unwelcome and stop there, because knew is the word that carries the mental element. The prosecution must therefore point to facts, such as an earlier refusal or a visible protest, from which the actor's awareness can be inferred.

The only variable that moved the result is V's attitude toward the touching, as communicated to D. The physical act, the actor's purpose, and the absence of a marriage were identical in both versions, which shows why the early steps cannot carry a conclusion by themselves. They establish that the conduct is of the kind § 213.4 addresses, and the last two steps establish the circumstance that makes this particular touching criminal under subsection (1). A change in the status of the parties works differently. If V had been D's spouse, the stem would fail at the second step and the analysis would end there, whatever D knew.¹¹

The fifth step shows its value when the pairing changes a different variable.

A conclusion under subsection (1) that ignores a more direct alternative may still reach the right result, but it puts the prosecution to proof it did not need to offer. The age alternative replaces the hard question of what a young child thought with a fact that records establish, which is the reason the fifth step comes before the conclusion rather than after it.

Federal evidence rules shape how these facts reach a jury, though they belong to the law of evidence and not to the Model Penal Code, and state versions vary considerably.¹³ Rule 412 limits a defendant's use of the other person's past sexual behavior, which keeps the inquiry in steps three and four on the occasion actually charged. Rule 413 allows the prosecution, in a case where the defendant is accused of sexual assault, to offer evidence of the defendant's other sexual assaults, and its definition of sexual assault reaches nonconsensual sexual contact.¹⁴