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State v. Johnson8/22/2001
now that the victim is mentally defective, mentally incapacitated or physically helpless; or
(4) The sexual contact is accomplished by fraud. Tenn. Code Ann. § 39-13-505(a) (1997).
In addition, "sexual contact" is defined as follows:
" he intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification." Id. § 39-13-501(6) (1997).
Finally, "intimate parts" include "the primary genital area, groin, inner thigh, buttock or breast of a human being." Id. § 39-13-501(2) (1997).
The majority's statutory analysis of the offense rests entirely upon the fact that the definition of "sexual contact" includes the plural term "parts." Id. § 39-13-501(6) (1997). Relying solely upon this plural term, the majority leaps to the startling conclusion that the prosecution may introduce evidence of multiple acts of sexual contact in proving a single charge of sexual battery regardless of the nature of the contact or the areas of the victim invaded by a defendant. Although the majority claims that this is the "plain" meaning of the statute, such an interpretation means that any act of sexual contact after the initial act of sexual contact would be of no legal consequence. I cannot believe that the legislature intended to allow any defendant to commit multiple acts of sexual contact against a victim and be guilty of but a single offense.
Moreover, the majority overlooks or finds no significance in the fact that the legislature delineated specific areas of the victim in the definition of "intimate parts." See id. § 39-13-501(2) (1997). As one court has said:
In defining `intimate parts,' the . . . statute lists five separate protected areas: the genital area, groin, buttocks, anus and breast. We hold that the legislative intent was to protect the victim from intrusions to each enumerated part. Thus, under the facts of this case, which showed distinctly separate touchings of two of the protected areas, defendant was properly convicted and separately sentenced for [two counts]. . . . Separate punishments are sustainable where evidence shows distinctly separate touchings to the different parts. State v. Williams, 730 P.2d 1196, 1199 (N.M. Ct. App. 1996) (emphasis added).
In my view, the statutory definition of "intimate parts" reflects the legislature's intent to provide more protection for victims and not less as the majority believes. Thus, I reject the majority's statutory interpretation that serves as the underlying premise for its holding.
State v. Phillips
The majority bolsters its conclusion that the evidence revealed only a single offense of sexual battery by applying the factors set forth in Phillips, which include (1) the nature of the acts; (2) the area of the victim's body invaded by the sexually assaultive behavior; (3) the time elapsed between the discrete conduct; (4) the accused's intent; and (5) the cumulative punishment imposed. 924 S.W.2d at 665. Although I fully agree that the Phillips factors are useful in determining whether there were multiple offenses for the purpose of election, see State v. Kendrick, 38 S.W.3d at 569, I believe that the majority has misapplied the Phillips analysis and has again reached the wrong conclusion.
There is no dispute that the defendant first touched the victim's breast and thereafter touched the victim over the clothes between her legs. Although the record is
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