The Law Of Hugs and Kisses

The District of Columbia Court of Appeals dismissed one conviction and remanded another for a new trial. 

Mr. Augustin appeals his convictions for misdemeanor sexual abuse of a minor (MSA-M) and simple assault. His claims of error raise questions of statutory interpretation and sufficiency of the evidence. We vacate appellant’s conviction of MSA-M and remand for the trial judge to make new findings and render a new verdict on that count. We reverse appellant’s conviction for simple assault.

Defendant and victim

In the fall of 2016, when appellant was a thirty-three-year-old athletic trainer and teacher at a Washington, D.C., parochial high school, he became infatuated with A.G., one of the student athletes he had taught and advised. She was then in her senior year, just a few months shy of her eighteenth birthday, and she had what she called a “crush” on appellant.  In mid-September, appellant began asking A.G.  to visit him in his school office. She did so, almost daily. During several of these visits, appellant hugged her closely and affectionately. The MSA-M charges were based on these embraces. During a few visits appellant kissed A.G., including once on the lips. The simple assault charge was for the kissing.

Hugs

According to A.G., whom the judge credited, appellant gave her a few tight, “intense” and “intimate” body-to-body hugs lasting several seconds, during which his chest pressed against her breasts, and areas somewhere in the vicinity of their genitals also made physical contact. Appellant may have complimented A.G. on her appearance while doing so. If we were to view A.G.’s description of the hugs in isolation, as it were, we doubt we could deem it sufficient by itself to support a finding with the requisite degree of certainty that appellant embraced A.G. for purposes of sexual gratification or arousal. To be sure, appellant crossed a line he should not have; but the patent inappropriateness of his conduct is not enough to establish that the specifics of MSA-M were sufficiently proved. There was no testimony that appellant spoke to A.G. in a sexually provocative way during these hugs; that he had an erection while hugging her; that he caressed A.G. or kissed her in a passionate or intimate manner; that he rubbed his chest against her breasts (or any other part of his body against hers); that his hands touched or went near any of the parts of A.G.’s body protected by the MSA-M statute; or that appellant performed any other lewd or lascivious action beyond the tight hugs themselves.

…Appellant’s hugs initially were brief and casual in nature, but over time, A.G. said, they became “slightly longer,” up to four to five seconds in duration. A.G. characterized three or four of appellant’s embraces as “intense,” and “intimate,” and like “the kind of hugs [one] would exchange with [one’s] boyfriend.” Appellant held her tightly and firmly in these hugs, with his hands around her shoulders and sometimes, “momentarily,” on the small of her back above her waistline. They both remained fully clothed. Their upper bodies, stomachs, hips, and lower areas were all in contact. Appellant did not rub or move his body against A.G.’s. He did not caress or fondle her, nor did he ever put his hands on her breasts or anywhere below her waist. During one hug, appellant kissed A.G. on the cheek. They both remained fully clothed. A.G. did not testify that appellant had an erection or otherwise appeared to become sexually aroused. Appellant may have told A.G. she looked pretty or complimented her on her appearance, but she did not testify that he spoke to her in any more sexually heated or provocative way during these hugs.

Remand

Where, as here, the evidence is sufficient to support a verdict of guilty in a bench trial, but the trial judge appears to have grounded the verdict on a mistaken view of the facts without (apparently) having considered and rejected the permissible factual basis, the proper course is for this court to remand the case for the trial judge to weigh the evidence afresh.

Kisses

The simple assault can be committed by sexual touching conduct that does not fall within the ASAA. The present case illustrates this: appellant could never have been convicted of MSA-M or any other ASAA offense for kissing A.G. in the manner it was proved he did, because such kissing (even if non-consensual, for sexual gratification, and committed by someone in a “significant relationship” with A.G.) was not “sexually suggestive conduct,” a “sexual act,” or a “sexual contact,” within the meaning of the ASAA.

…we agree with appellant that sixteen years is the age of consent for the non-violent sexual touching prosecuted as simple assault in this case, and that the trial judge’s ruling that seventeen-year-old A.G. lacked the legal capacity to consent to appellant’s kisses was legal error. To convict appellant of simple assault, it was the government’s burden at trial to prove he kissed A.G. without her consent.

Here

It is clear from her testimony that A.G., who admittedly had a “crush” on appellant and welcomed an amorous relationship with him, was amenable to his kisses. No reasonable trier of fact could find beyond a reasonable doubt that she found the kisses objectionable or did not consent to them.

(Mike Frisch)