Buttocks are Intimate some of the time, but not all of the time

State v. Silver (HSC February 2, 2011)

Background. Barry Silver was charged with five counts of sexual assault in the third degree. HRS § 707-732(1)(b). At trial, the complaining witness, a boy, testified that he and his father visited Maui on vacation and stayed at the condominium of the Josefsbergs in Ka'anapali. Silver also was staying at the condo. The boy testified that one day he was playing in the swimming pool with Silver and his father. Silver and his father would throw him back and forth between them. Silver would hold the minor's buttocks to hoist him in the air and throw him. He could not recall Silver grabbing him, but he did testify that Silver touched his crotch and his buttocks. The boy's father testified that although there was a lot of physical contact in the pool, he described it as "horseplay" and he would not have known if Silver's hands were underneath the boy's buttocks.

A few nights after playing in the pool, the three of them slept in the living room area of the condominium. The boy slept between his father and Silver. According to the boy, Silver awoke him in the middle of the night and started to rub the boy's buttocks, crotch, and penis. In all, the boy testified that Silver "brushed over" his buttocks twice and his penis once.

The circuit court granted Silver's motion to acquit in part and dismissed one of the five counts of sex assault in the third degree. The jury found Silver guilty of count one--which pertained to the contact in the pool--and the remaining three counts. Silver appealed and the ICA affirmed.

Sexual Assault in the Third Degree. Sexual assault in the third degree arises when a person "knowingly subjects to sexual contact another person who is less than fourteen years old or causes a person to have sexual contact with the person[.]" HRS § 707-732(1)(b). "Sexual contact" means "any touching . . . of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the closing of other material intended to cover the sexual or other intimate parts." HRS § 707-700. The terms "sexual" or "intimate" parts are not defined. "[S]exual parts clearly refers to the sex organs." State v. Kalani, 108 Hawai'i 279, 284, 118 P.3d 1222, 1227 (2005). "Intimate parts" has been interpreted to mean "only those parts of the body typically associated with sexual relations." Id. at 284-85, 118 P.3d at 1227-28.

Buttocks are Intimate Parts . . . The buttocks are not sex organs and cannot be considered "sexual parts." So the issue came down to whether the buttocks were "intimate parts." The HSC turned to Kalani, where the mouth and tongue were considered "intimate parts" based on the definitions of "sexual contact," and "deviate sexual intercourse" under HRS § 707-700, and "sexual conduct" under HRS § 712-1210. Id. at 286-87, 118 P.3d at 1229-30. According to the HSC, this case is similar. Although the plain language of the definition of "intimate parts" does not suggest that the buttocks are a part of the body typically associated with sexual relations, the legislative history and reading the definition in pari material "supports the conclusion that the legislature intended that the buttocks be included as 'intimate parts.'" Thus, the HSC agreed with the ICA that the buttocks are considered "intimate parts."

. . . Some of the time. The HSC also agreed with the ICA that "a body part which might be intimate in one context, might not be in another[.]" See People v. Rivera, 525 N.Y.S. 2d 118, 119 (N.Y. Sup. Ct. 1988). The HSC approved of the ICA's example of team coaches "giv[ing] their players a congratulatory pat on the buttocks in recognition of a good play or outstanding effort." In examining the context of the incidents between the boy and Silver, the HSC agreed with the ICA that "when viewed in context, there was sufficient evidence" to show that Silver's touching of the boy's buttocks in the middle of the night "constituted the touching of an 'intimate part' of the boy's body."

. . . But not all of the time. But the HSC disagreed about the pool. In that context, there was not enough evidence to show that the Silver's touching of the boy's buttocks was an "intimate part." The ICA conceded that viewed in isolation, there was not enough evidence supporting the pool touching as sexual assault in the third degree. It was characterized by the boy's father has "horseplay." The HSC disagreed with the ICA's conclusion that the pool incident had to be viewed in context with the subsequent incident in the middle of the night. That, according to the HSC, expanded the scope of the "context" too far. The HSC, rather cryptically, stated that although "horseplay" in "a pool could potentially form the basis for a sexual assault charge, the State did not adduce substantial evidence to support Silver's conviction in this case."

Reversal is the Remedy. "The reversal of a conviction for insufficiency of the evidence constitutes a determination by the appellate court that the defendant should have been acquitted in the trial court in the first instance[.]" State v. Kalaola, 124 Hawai'i 43, 56, 237 P.3d 1109, 1122 (2010). Moreover, the "prohibition against double jeopardy applies wehre the reversal is based on insufficiency of the evidence[.]" State v. Bannister, 60 Haw. 658, 660, 594 P.2d 133, 135 (1979). Accordingly, the HSC reversed judgment for Count one and did not remand it for retrial as that would be in violation of the Double Jeopardy Clause.

An Interesting Construction. The HSC has given us a curious construction of the definition of "sexual" and "intimate parts." First off, sexual parts are sex organs. Okay, that seems clear enough. It gets tougher with "intimate parts," that is, those body parts that are "typically associated with sexual relations." State v. Kalani, 108 Hawai'i at 284-85, 118 P.3d at 1227-28. So when we get to something like the buttocks, we can conclude that that is a body part usually associated with sex. However, not all the time. In some contexts, it is not; like in football. So the same body part that is associated with sex may not be "intimate" in some contexts. Put differently, the HSC has called for an additional element that must be proven: the circumstances surrounding the touching of a part that may be associated with sex--like the butt--must be sexual in nature. The HSC did not really explain what that context has to be, but it clearly stated that a nighttime massage was within the ambit while "horseplay" in the pool is not (although, rather cryptically, it can be in some cases).

How do we Plead this? If the context surrounding the touching of an intimate part is an element that must be proven by the prosecution in order to be an "intimate part" that is "typically associated with sexual relations," then it would seem that it has to be pleaded too. See State v. Hitchcock, 123 Hawai'i 369, 372, 235 P.3d 365, 376 (2010) (It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged."). In examining this element, it would seem that the context is not so much the part--a butt is a butt whether it being massaged at night or patted on the sideline--but the touching. It really seems that the touching must be "intimate" not the body part. This is certainly a case of awkward statutory language.

Shouldn't we look to the Context for Sex Organs too? A doctor's classic turn-your-head-and-cough test involves the touching of another person's sex organs. That context is clearly not sexual in nature, but it is without a doubt the touching of "sexual parts." So are doctors guilty of sexual assault in the third degree if the patient is under fourteen? It would seem that the examination of the context should extend to sexual parts as well as intimate parts too. But that is another issue for another day.

Post-script. I have received a lot of comments about this case. Faithful HLN readers have pointed out that there is an exception for doctors. The sexual assault statute "shall not be construed to prohibit practitioners licensed under chapters 453, 455 or 460 from performing any act within their respective practices[.]" Thank you for the correction.


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