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holding that the neck is an intimate part of the body for purposes of indecent assault
Summary of this case from Commonwealth v. StrunkOpinion
No. 62 MAP 2021
09-29-2022
COMMONWEALTH of Pennsylvania, Appellee v. Carl GAMBY, Appellant
Spencer Hamilton Bradley, Esq., James Jude Karl, Esq., Mary Lynn Klatt, Esq., Dauphin County Public Defender's Office, for Appellant. Francis T. Chardo III, Esq., Mari Ladina Hambright, Esq., Ryan Hunter Lysaght, Esq., Christopher John Robinson, Esq., Erin Varley, Esq., Dauphin County District Attorney's Office, for Appellee.
Spencer Hamilton Bradley, Esq., James Jude Karl, Esq., Mary Lynn Klatt, Esq., Dauphin County Public Defender's Office, for Appellant.
Francis T. Chardo III, Esq., Mari Ladina Hambright, Esq., Ryan Hunter Lysaght, Esq., Christopher John Robinson, Esq., Erin Varley, Esq., Dauphin County District Attorney's Office, for Appellee.
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE TODD In this appeal by allowance, we consider whether the unwanted kissing of a person's neck constitutes the touching of "sexual or other intimate parts" for purposes of the crime of indecent assault. For the reasons that follow, we determine that "other intimate parts" are those parts of the body that are personal and private, and which a person ordinarily allows to be touched only by other individuals with whom the person has a close personal relationship, and which are commonly associated with sexual relations or intimacy. Applying this meaning, we conclude that the neck is an intimate part of the body, and thus, we do not disturb the jury's finding that Appellant, Carl Gamby, by grabbing the victim, K.A., from behind and kissing her neck for the purpose of sexual gratification, committed indecent assault. Accordingly, we affirm the order of the Superior Court.
18 Pa.C.S. § 3126. As discussed below, a conviction for indecent assault depends upon a finding of "indecent contact," 18 Pa.C.S. § 3101, which, as written, expresses two distinct concepts which must be proven. First, indecent contact requires the touching of "sexual or other intimate parts" of the person, and, second, such touching must be for the purpose of arousing or gratifying sexual desire. 18 Pa.C.S. § 3101. This appeal focuses on the former requirement.
The facts underlying this matter, as set forth by the trial court, are as follows:
March 28, 2019, was [Appellant's] second day at a new job working for the Econo Lodge on Eisenhower Boulevard in Swatara Township, Dauphin County. It was also the first time that he met [K.A., the victim], an experienced employee who was to help train [Appellant] as they worked together during the evening shift. (N.T. 9/11 & 12/19 p. 14). From 4:00 p.m. to approximately 7:30 p.m., [Appellant] interacted professionally with [K.A.]. At 7:30 p.m. [Appellant] excused himself to ostensibly take a cigarette break. (N.T. 9/11 & 12/19 pp. 15-16). He next went to the restroom where he injected himself with what he testified was likely fentanyl and bath salts. (N.T. 9/11 & 12/19 p. 60).
[K.A.] immediately suspected something was wrong when [Appellant] stumbled out of the restroom. [Appellant] then grabbed [K.A.] from behind with his arm around her neck and kissed [K.A.] on her neck. (N.T. 9/11 & 12/19 pp. 16-17). Next, he proceeded to take off his shirt. As [K.A.] tried to text her boss for help, [Appellant] inserted himself between the desk and [K.A.] and repeatedly requested to kiss her. (N.T. 9/11 & 12/19 p. 18).
[K.A.] stood up and attempted to get away from [Appellant] as he advanced and tried to touch [K.A.]. She yelled, "You need to get away from me. Stop. Don't touch me." (N.T. 9/11 & 12/19 p. 19). When she had an opportunity, [K.A.] left the lobby area and went outside to her car at the same time she was calling 911. (N.T. 9/11 & 12/19 pp. 19-20). The Commonwealth played for the jury a videotape of this series of interactions
that occurred inside the Econo Lodge. (Commonwealth's exhibit 1; N.T. 9/11 & 12/19 pp. 22-24). As [K.A.] was leaving, [Appellant] said to her, "[b]efore you leave, I just want to show you something. And that's when he started to take his pants off." (N.T. 9/11 & 12/19 p. 24).
As video footage from outside the hotel documented, [Appellant] ran after [K.A.] when she fled to her car. (Commonwealth's exhibit 1). [K.A.] locked herself in her vehicle and attempted to leave. [Appellant], now totally naked, pressed himself against the car. (N.T. 9/11 & 12/19 pp. 25-26). He shook [K.A.’s] car and demanded, "[y]ou have to stay. You have to come out and talk to me." (N.T. 9/11 & 12/19 p. 26). [Appellant] continued to hold onto the car as [K.A.] drove away. (N.T. 9/11 & 12/19 p. 26). [K.A.] drove to the police station, which is a short distance away at the Swatara Township building. When Officer Neve met her, he observed that [K.A.] was extremely frightened. (N.T. 9/11 & 12/19 p. 49). Neve noted and photographed handprints on the driver's side windows. (Commonwealth's exhibits 3 & 4). When the police arrested [Appellant], it was noted that he had an abrasion on his penis like a "road rash." (N.T. 9/11 & 12/19 p. 51). The police also documented that [Appellant's] clothes were left across the floor of the hotel lobby, and that he had left a syringe on the restroom sink. (Commonwealth's exhibits 5, 6, & 7).
Trial Court Opinion, 12/9/19, at 1-3. Appellant was charged with indecent assault without consent, indecent exposure, use or possession of drug paraphernalia, and public drunkenness and similar misconduct.
18 Pa.C.S. § 780-113(a)(32).
As the crime of indecent assault is central to this appeal, we turn to the Pennsylvania Crimes Code, which sets forth the crime of indecent assault, in relevant part, as follows:
Offense defined.-- A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent.
18 Pa.C.S. § 3126(a)(1) (emphasis added). Further, the term "[i]ndecent contact," as used above, is defined as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa.C.S. § 3101 (emphasis added). The meaning of the phrase "sexual or other intimate parts," which is not statutorily defined, lies at the core of this matter.
At his jury trial, Appellant, who testified on his own behalf, freely admitted to injecting himself with what he thought was heroin, but which he later believed to be fentanyl and bath salts. The charges of possession of drug paraphernalia and indecent exposure also were essentially conceded at trial. However, Appellant maintained that he was not guilty of indecent assault, as he did not touch an intimate part of the victim's body. Ultimately, the jury found Appellant guilty on the first three of the crimes charged, including indecent assault. Thereafter, Appellant filed a post-sentence motion challenging the sufficiency of the evidence to support his conviction for indecent assault. The court denied the motion, determining, inter alia , that, by wrapping his arm around the victim's neck and "kiss[ing] the intimate part of her neck," there was sufficient evidence to support Appellant's conviction for indecent assault. Trial Court Opinion, 12/9/19, at 5.
The trial court sentenced Appellant to 11 months and 15 days to 23 months imprisonment for the indecent assault conviction, and a consecutive term of 24 months of probation for the indecent exposure conviction. The court imposed no further penalty for the use of possession of drug paraphernalia conviction. As a result of his convictions and the circumstances underlying them, Appellant also was required to register as a sexual offender.
Appellant appealed to the Superior Court contending that his kissing of the victim's neck did not satisfy the statutory element of touching the "sexual or other intimate parts" of the victim. Writing for a unanimous three-judge panel, Judge Jacqueline Shogan affirmed Appellant's judgment of sentence based primarily on the Superior Court's prior decisions, noting that the court previously has held that "areas of the body other than the genitalia, buttocks, or breasts can be intimate parts of the body as contemplated by the indecent assault statute when touched for sexual gratification." Commonwealth v. Gamby , 2021 WL 99749, *3 (Pa. Super. filed Jan. 12, 2021) (citing Commonwealth v. Fisher , 47 A.3d 155 (Pa. Super. 2013) (holding evidence sufficient to sustain indecent assault conviction where defendant licked backs of victim's legs from her ankles to just below her buttocks for the purpose of sexual gratification); Commonwealth v. Provenzano , 50 A.3d 148 (Pa. Super. 2012) (affirming indecent assault conviction where defendant exchanged passionate kisses with mentally challenged minor victim who sat on his lap); Commonwealth v. Evans , 901 A.2d 528 (Pa. Super. 2006) (holding evidence was sufficient to convict defendant of indecent assault where he wrapped his arms around victim and inserted his tongue into her mouth because act would not occur outside of sexual or intimate situation); Commonwealth v. Capo , 727 A.2d 1126 (Pa. Super. 1999) (upholding indecent assault conviction where defendant kissed victim's face and neck, and rubbed her shoulders, back, and stomach)).
In rejecting Appellant's argument that the neck does not constitute an intimate part of the body, the Superior Court further relied upon its decision in Commonwealth v. Hawkins , 419 Pa.Super. 37, 614 A.2d 1198 (1992), in which it reasoned that the broad language of the statute arose from "a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim." Id. at 1201. As the Hawkins court explained, "[d]ue to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act." Id.
The Superior Court herein reasoned, inter alia , that Appellant's wrapping of his arm around the victim's neck, and kissing her neck, as found by the trial court, were intrusive gestures, and, as a result, that the victim suffered the outrage, disgust, and shame that it deemed Section 3126 sought to prevent. Thus, the Superior Court concluded that the evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, supported the jury's determination that Appellant committed indecent assault by touching the victim on an intimate part of her body for the purpose of arousing or gratifying sexual desire, and, in doing so, the court rejected Appellant's argument that the incidental contact of a single kiss to the victim's neck was insufficient. Gamby , 2021 WL 99749, at *5.
We granted allocatur to address whether the kissing of the victim's neck, without the victim's consent, constituted the touching of the "sexual or other intimate parts" of the victim sufficient to sustain Appellant's conviction for indecent assault under 18 Pa.C.S. § 3126(a)(1). As Appellant raises a pure question of law involving statutory interpretation, our scope of review is plenary and our standard of review is de novo . Commonwealth v. Foster , 654 Pa. 266, 214 A.3d 1240, 1247 (2019) ; Commonwealth v. McClintic , 589 Pa. 465, 909 A.2d 1241, 1245 (2006).
We note that Appellant did not raise a constitutional challenge on the basis of vagueness, nor is it contained in our grant of allocatur, and, thus, this issue is not before us. Commonwealth v. Diodoro, 601 Pa. 6, 970 A.2d 1100, 1104 n.5 (2009) (defendant waived argument that possession of child pornography statute was unconstitutionally vague by failing to raise this issue in trial court); In re F.C. III , 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (finding waiver of void for vagueness claim); Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1051-52 (2003) (deeming constitutional challenges waived where appellant had preserved only statutory interpretation issue); see generally Pa.R.A.P. 302(a).
Appellant submits that his only physical contact with the victim was placing a single kiss on the back of her neck while his arm was around her neck and shoulder area, and argues that this was insufficient to establish the touching of the "sexual or other intimate parts" of a person under Section 3126. Appellant's Brief at 14. Initially, addressing the decisions relied on by the Superior Court, Appellant contends that, while Capo , Evans , Fisher , and Provenzano interpreted the phrase "other intimate parts" to encompass body parts other than the genitals and the breasts, they are distinguishable, as they involved conduct that was more intrusive and prolonged than Appellant's conduct in this matter. Furthermore, according to Appellant, those decisions interpreted the phrase "intimate parts" too broadly, and inconsistently with the Model Penal Code ("MPC") and the rules of statutory construction.
As an aside, Appellant stresses that the Commonwealth did not proceed in the alternative under an attempted indecent assault theory and that the trial court did not charge the jury on that offense. Nor does the Commonwealth assert such a theory before us.
Specifically, Appellant observes that the offense of indecent assault found in Section 1326 is derived from Section 213.4 of the MPC. Appellant offers that the MPC's definition of "sexual contact" is identical to the definition of "indecent contact" found in 18 Pa.C.S. § 3101, and, according to Appellant, rejects an expansive interpretation of the term "intimate" to mean all body parts. Appellant stresses the concerns expressed by the MPC drafters regarding criminalizing mere familial contacts or affections, and its explanation that "sexual misbehavior should not be based on wholly equivocal conduct," but requires "some more demonstrative act, such as fondling of a woman's breast, manipulation of male genitals, or digital penetration of vagina or anus." MPC § 213.4, comment, n.11. Consistent therewith, Appellant presses the view espoused by Judge Cirillo in his dissent in Capo , wherein he opined that the phrase "sexual or other intimate parts" meant the sexual parts of the penis, vagina, anus, and the female breasts. Capo , 727 A.2d at 1129 (Cirillo, J. dissenting). According to Appellant, if the General Assembly had intended indecent contact to include any part of the body, as long as the motive was sexual gratification, then it could have drafted language to that effect. Appellant's Brief at 22.
The MPC, and certain other states consistent therewith, use the phrase "sexual contact" as an element of the crime of "sexual assault," whereas Pennsylvania's Crimes Code refers to "indecent contact" as an element of "indecent assault."
Instead, Appellant highlights the offense of invasion of privacy, 18 Pa.C.S. § 7507.1, which defines "[i]ntimate part" as "[a]ny part of: (1) the human genitals, pubic area or buttocks; and (2) the nipple of a female breast." Appellant's Reply Brief at 5-6 (quoting 18 Pa.C.S. § 7507.1 ). According to Appellant, Sections 3126 and 7507.1 should be read in pari materia , and the term "intimate parts" should be given the same meaning in both statutes. Consistent therewith, Appellant submits that the phrase "intimate parts" is ambiguous, implicating the rule of lenity and a more circumscribed interpretation. Therefore, Appellant maintains that the placing of a single kiss on the victim's neck while placing his arm around her did not constitute the touching of an "intimate part" and, thus, could not support a conviction for indecent assault.
The Commonwealth responds that, contrary to Appellant's contention, the decisions relied on by the Superior Court below do not announce a sweeping rule that all body parts constitute "sexual or other intimate parts," but, rather, only "those that are the subject of sexual contact." Commonwealth's Brief at 8. To the extent the phrase is ambiguous, the Commonwealth offers that, in the phrase "sexual or other intimate parts," "intimate parts" cannot refer solely to genitalia, as such a construction would ignore the distinction between "sexual" and "other intimate parts," and render the latter redundant. Moreover, the Commonwealth contends that the phrase cannot be limited to the breasts, as such an interpretation would be inconsistent with the legislative intent underlying the statute which, it submits, concerns "the shame, outrage, and disgust engendered in the victim, rather than ... any physical injury to the victim." Commonwealth's Brief at 10 (quoting In the Interest of J.R. , 436 Pa.Super. 416, 648 A.2d 28, 34 (1994) ). According to the Commonwealth, the phrase "other intimate parts" must be construed in accord with its common and accepted usage. 1 Pa.C.S. § 1903. In the Commonwealth's view, this means a part of the body that is the subject of sexual contact or relations, citing Merriam-Webster's definition of "intimate" as "engaged in, involving, or marked by sex or sexual relations." Commonwealth's Brief at 11 (quoting Merriam-Webster's Online Dictionary, http://www.merriamwebster.com/dictionary/intimate).
Rejecting Appellant's reliance on the rule of lenity as necessitating a narrow interpretation of the phrase "sexual or other intimate parts," the Commonwealth offers that courts are not required to give language employed in a criminal statute its narrowest meaning or disregard the legislature's intent regarding the meaning of a statute. Furthermore, according to the Commonwealth, Appellant's reliance upon the MPC in support of his narrow reading of the statute is misplaced. While acknowledging that the MPC was concerned with excluding from the sweep of indecent assault common expressive familial or friendly affection, the Commonwealth asserts that the kissing and touching of one's neck should not be construed as such familial or friendly affection but, rather, as an act which would happen only in a sexual or intimate context. In sum, the Commonwealth urges that we find that Appellant's kissing of the victim on her neck was a sexual advance which involved an intimate body part, evidence of which was sufficient to support Appellant's conviction for indecent assault.
Our interpretation of the phrase "sexual or other intimate parts" is guided by the polestar principles set forth in the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq ., which has as its paramount tenet that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." Id. § 1921(a). As we have often recognized, "[t]he General Assembly's intent is best expressed through the plain language of the statute." Commonwealth v. Brown , 603 Pa. 31, 981 A.2d 893, 897 (2009) ; Commonwealth v. McCoy , 599 Pa. 599, 962 A.2d 1160, 1166 (2009). Therefore, when the terms of a statute are clear and unambiguous, they will be given effect consistent with their plain and common meaning. 1 Pa.C.S. § 1921(b) ; Commonwealth v. Kelley , 569 Pa. 179, 801 A.2d 551, 554 (2002). We ascertain the plain meaning of a statute by ascribing to the particular words and phrases the meaning which they have acquired through their common and approved usage, and in context. 1 Pa.C.S. § 1903. Only in instances where the words of a statute are not explicit, or are ambiguous, do we consider the construction factors enumerated in 1 Pa.C.S. § 1921(c). McCoy , 962 A.2d at 1166 ; Commonwealth v. Fithian , 599 Pa. 180, 961 A.2d 66, 74 (2008) ; see also 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
Concomitant with these considerations, the Statutory Construction Act sets forth certain presumptions which are to be applied when ascertaining legislative intent. In particular, when interpreting a statutory provision, we must presume that the legislature does not intend a result that is unreasonable, absurd, or impossible of execution, 1 Pa.C.S. § 1922(1) and intends the entirety of the statute to be certain, id. § 1922(2). Additionally, since Section 3126 is a penal statute, it must be strictly construed. Id. § 1928(b)(1). Likewise, under the rule of lenity, an ambiguous penal statute must be strictly construed in favor of the defendant. Commonwealth v. Cousins , 654 Pa. 55, 212 A.3d 34, 39 (2019). However, this principle does not require that our Court give the words of a statute their "narrowest possible meaning," nor does it "override the ‘general principle that the words of a statute must be construed according to their common and approved usage.’ " McCoy , 962 A.2d at 1168 (quoting Commonwealth v. Booth , 564 Pa. 228, 766 A.2d 843, 846 (2001) ). Where "doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt." Brown , 981 A.2d at 898 (internal quotation marks omitted).
Finally, the Crimes Code itself instructs how its provisions should be construed: "The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved." 18 Pa.C.S. § 105.
With these principles in mind, we return to the text of the Crimes Code setting forth the crime of indecent assault, as well as the definition of indecent contact, which we quote again for ease of discussion:
Offense defined.-- A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact
with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent.
18 Pa.C.S. § 3126 (emphasis added). Again, "indecent contact," as used above, is defined as:
Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person.
18 Pa.C.S. § 3101 (emphasis added).
The phrase "sexual or other intimate parts," the meaning of which is the sole issue before our Court, is not defined in the Crimes Code. Although not defined, this does not ipso facto render the phrase ambiguous. Rather, as noted above, the Statutory Construction Act instructs the judiciary to interpret terms according to their common and approved usage. 1 Pa.C.S. § 1903. To discern the legislative meaning of words and phrases, our Court has on numerous occasions engaged in an examination of dictionary definitions. See, e.g., Greenwood Gaming & Entertainment, Inc. v. Commonwealth , ––– Pa. ––––, 263 A.3d 611, 620-21 (2021) (consulting dictionary definitions to ascertain meaning of phrase "personal property"); Chamberlain v. Unemployment Compensation Board of Review , 631 Pa. 489, 114 A.3d 385, 394 (2015) (determining meaning of term "incarcerated" by use of dictionaries); Bruno v. Erie Insurance Co. , 630 Pa. 79, 106 A.3d 48, 75 (2014) (offering that, in determining a term's meaning, it is proper to consult dictionaries); Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898, 909 (2011) (exploring meaning of "lure" through review of various dictionaries); Fogle v. Malvern Courts, Inc., 554 Pa. 633, 722 A.2d 680, 682 (1999) (approving of use of dictionaries to determine common and approved usage of a term).
As Justice Felix Frankfurter observed, "legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him." Addison v. Holly Hill Fruit Products , 322 U.S. 607, 618, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944).
Dictionary definitions of the term "intimate," as used in this context, reveal a largely consistent definition over a significant period of time, including those from around 1972 when the Crimes Code was enacted. Indeed, dictionary definitions over time have consistently and broadly defined the adjective "intimate" to mean something that is personal and private in nature, commonly associated with sexual relations, and these definitions persist today.
In defining a statutory term, we strive to determine its meaning at the time the General Assembly enacted the legislation. See Wisconsin Central Ltd. v. United States, ––– U.S. ––––, 138 S.Ct. 2067, 2074, 201 L.Ed.2d 490 (2018). "After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the ‘single, finely wrought and exhaustively considered, procedure’ the Constitution commands." New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532 536, 202 L.Ed.2d 536 (2019) (citing I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ). Additionally, we would risk, too, upsetting reliance interests in the settled meaning of a statute. Cf. Singer & Singer, 2B Sutherland on Statutes and Statutory Construction § 56A:3 (7th ed. 2012). Because of the consistent dictionary definitions of the term "intimate" over the last 50 years, we have no such concerns in this matter.
For instance, Webster's Third New International Dictionary from 1961 defines "intimate," as relevant here, as "marked by or appropriate to very close personal relationships," "of, relating to, or befitting deeply personal (as emotional, familial, or sexual) matters," and "engaged in or marked by sexual relations." Webster's Third New International Dictionary (1961). Similarly, the 1980 version of Webster's New Collegiate Dictionary defines "intimate," in relevant part, as "belonging to or characterizing one's deepest nature" and "of a very personal or private nature." Webster's New Collegiate Dictionary (1980). Most recently, in its on-line edition, Merriam-Webster defines "intimate" as "belonging to or characterizing one's deepest nature," "marked by very close association, contact, or familiarity" and "of a very personal of private nature." Intimate, Merriam-Webster, https://www.merriam-webster.com/dictionary/intimate. Further, the Britannica Dictionary defines "intimate" consistently: "very personal or private." https://www.britannica.com/dictionary/intimate. Finally, the Oxford Learner's Dictionary defines the term "intimate" as "private and personal, often in a sexual way." https://www.oxfordlearnersdictionaries.com/us/definition/english/intimate_1?q=intimate.
We note that there exist other dictionary definitions, distinct from the more common definitions cited above, such as another version of the Oxford English Dictionary which includes as one of its definitions of "intimate," "Pertaining to or involving the sexual organs or bodily orifices". The New Shorter Oxford English Dictionary 1402 (4th ed. 1993).
Indeed, this last articulation of the definition of "intimate" – "private and personal, often sexual in nature" – fits particularly comfortably in the context of the statute when read as a whole. See , e.g. , 1 Pa.C.S. § 1903(a), (b) ("Words and phrases shall be construed according to rules of grammar and according to their common and approved usage .... General words shall be construed to take their meanings and be restricted by preceding particular words"); In re J.W.B. , 659 Pa. 561, 232 A.3d 689, 699 (2020) ("When interpreting a statute, ‘we must always read the words of a statute in context, not in isolation, and give meaning to each and every provision’ and ‘our interpretation must not render any provision extraneous.’ ").
More specifically, the term "intimate parts" is a component of the phrase "sexual or other intimate parts of the person." Thus, "intimate parts" are clearly more than "sexual parts," and so cannot solely relate to the genitalia, as such a construction would ignore the manifest distinction between "sexual" and "other intimate parts," and would make the latter term superfluous. By including the words "or other," the legislature made clear that "sexual" is a subset of the category of "intimate parts" – that is, "intimate" is broader than "sexual." Therefore, we reject Appellant's suggestion that "intimate parts" can be cabined solely to the sexual body parts, as the statute, by its very terms, is more broadly applicable. Conversely, we also reject the Commonwealth's suggestion that that the phrase "sexual or other intimate parts" constitutes any body part, as the qualifiers "sexual" and "intimate" plainly narrow the focus. In that regard, the statute's reference to sexual and other intimate parts refers to areas of the person that implicate sexual autonomy, rather than offensive touch generally, which would be the subject of a mere battery.
Appellant rightly draws our attention to the MPC, as our indecent assault statute, found in Section 3126, is derived from, although not identical to, Section 213.4 of the MPC, entitled "Sexual Assault." See 18 Pa.C.S. § 3126, Jt. St. Govt. Comm. Comment – 1967; Commonwealth v. Mumma , 489 Pa. 547, 414 A.2d 1026, 1029 (1980). While not identical, Section 3101 ’s definition of "indecent contact" is virtually the same as the MPC's definition of "sexual contact." Thus, it is entirely reasonable to look to the MPC in interpreting the meaning of "sexual or other intimate parts." Indeed, we recently emphasized that "[i]t would be extraordinary for lawmakers to attempt to impose a materially different connotation on borrowed terminology [from the MPC] without saying so. This is particularly so when the plain language adopted by the General Assembly is wholly consistent with [the MPC] authors’ developed explanation." Commonwealth v. H.D. , ––– Pa. ––––, 247 A.3d 1062, 1067 n.5 (2021).
Initially, we note that the MPC, like our statute, does not provide a definition of the phrase "sexual or other intimate parts." The comment to the MPC's definition of sexual assault discusses "sexual contact," but fails to provide any background as to the body parts envisioned to constitute "sexual or other intimate parts." Instead, the comment's center of attention in this regard focuses exclusively on the nature of the contact and conduct involved, i.e. , the type of touching and by whom.
The drafters raise a concern about properly criminalizing a purposeful invasion of one's personal dignity, while not sweeping in casual expressions of affection:
Together, the limitation on the range of conduct included in the offense and the requirement of purpose differentiate invasion of personal dignity from the casual expression of affection or approval. The basketball coach who pats his players on the bottom is merely fulfilling a ritual of congratulation. Even if such contact proves unwelcome to the recipient, the actor may not be held liable for this offense.
MPC § 213.4, comment 2, "Sexual Contact" (footnote 11 omitted). This concern, however, goes to the requirement that the touching be for the purpose of sexual arousal or gratification, rather addressing which parts are intimate.
In footnote 11 to this MPC comment, the drafters expand upon this concern regarding the criminalization of casual expressions of affection or approval, but again focus on the type of conduct or touching at issue. Specifically, they initially note that a prior tentative draft of the MPC "did not limit the contact to the touching of the sexual or other intimate parts of the person or another, but covered any contact for the stated purpose [of sexual gratification]," while expressly excluding "acts commonly expressive of familial or friendly affection." Id. comment 2, n.11 (citing MPC § 207.6, T.D. 4 at 293-94 (1955)). The drafters go on to explain, however, that the "purpose of the original exclusion of familial or friendly affection is retained by the more restrictive definition [focusing on ‘sexual or other intimate parts’] now included in Section 213.4." Id. They emphasize that basing liability on a "kiss or hug would place too much weight on the ability of the judge or jury to distinguish affection from passion." Id. The drafters also offered an example of an "elderly gentleman who kisses a pretty girl or pats her on the bottom" and asserts that such elder "should not be subjected to prosecution as a sex offender on the theory that he was securing sexual gratification by such conduct." Id. Finally, consistent with the theme of the footnote, the drafters submit that liability should not be "based on wholly equivocal conduct," but requires "some more demonstrative act, such as fondling a woman's breast, manipulation of male genitals, or digital penetration of vagina or anus." Id. Throughout, however, the drafters were concerned with the type, and evidently degree, of touching and by whom, all at least implicitly related to the purpose of the touching, for sexual gratification, and not what constitutes an intimate part of the victim.
While it appears the drafters concluded that the addition of the phrase "sexual or other intimate parts" protected familial or friendly affections from the sweep of the definition of indecent assault, unfortunately, they did not provide further guidance as to what body parts they envisioned were encompassed within the language "sexual or other intimate parts," as the commentary focuses exclusively on the type and circumstances of the unwanted touching.
We stress the distinct elements of conduct constituting "indecent contact" / "sexual contact": (1) the touching of a sexual or other intimate part and (2) the touching for the purpose of arousing or gratifying sexual desire. 18 Pa.C.S. § 3101 ; MPC § 213.4. The MPC comments spoke to the latter. Thus, based upon the above, we conclude that the MPC provides no dispositive, or even helpful, commentary on the narrow question before us.
Consistent therewith, we are not persuaded that our interpretation of the phrase "intimate parts," as set forth below, conflicts with the MPC.
Appellant's specific, and somewhat confusing, argument concerning the MPC is much more limited. The thrust of Appellant's contention regarding the MPC commentary is that it rejects an expansive interpretation of the term "intimate parts," pointing out, as noted above, that the MPC's definition of "sexual contact" is more restrictive than one appearing in a tentative draft which would have envisioned any contact for the stated purpose of arousing or gratifying sexual desire. According to Appellant, an expansive interpretation of the phrase "other intimate parts," to the point of sweeping in "any part of the body," is inconsistent with the MPC commentary. Appellant's Brief at 20-22. As explained above, we agree, as neither the plain language of Section 3101 ’s definition of "intimate contact" nor the MPC commentaries, allow for such breadth.
However, Appellant also appears to rely on the MPC and Judge Cirillo's dissent in Capo to interpret the phrase "intimate parts" as limited only to those related to sexual contact – i.e. , a woman's breast, the genitals, or anus. Specifically, Appellant points to Judge Cirillo's dissent in Capo , in which he cited a single dictionary definition for the proposition that intimate parts referred "only to those parts of the body that are the subject of sexual contact or relations." Capo , 727 A.2d at 1129 (Cirillo, J. dissenting). The dissent also looked to the MPC and the commentaries analyzed above. Based upon the drafter's discussion in footnote 11 requiring "some more demonstrative act, such as fondling of a woman's breast, manipulation of male genitals, or digital penetration of vagina or anus," the dissent leapt to the conclusion that indecent contact was limited to "a person's sexual parts including the penis, vagina or anus; and ‘other intimate parts’ limited exclusively to the breasts." Id. at 1130.
Initially, the dictionary definitions offered above do not commonly limit the term "intimate" only to areas pertaining to sexual contact or relations. Furthermore, the MPC's suggestion that liability should not be "based on wholly equivocal conduct," and requires "some more demonstrative act, such as fondling a woman's breast, manipulation of male genitals, or digital penetration of vagina or anus," concerned the conduct, and type and degree of touching, at issue; they were not offered as examples of sexual or intimate parts. To the extent Judge Cirillo equated the two, we reject that view, and reject Appellant's attempt to limit the meaning of "intimate parts" to those mentioned in the MPC commentaries.
We also reject Appellant's contention that the phrase "intimate parts" should be read in pari materia with the offense of invasion of privacy. That offense prohibits, inter alia , the photographing or videotaping of "intimate parts," whether or not covered by clothing, "of another person without that person's knowledge and consent and which intimate parts that person does not intend to be visible by normal public observation." 18 Pa.C.S. § 7507.1(a)(2). It defines "intimate part" as "[a]ny part of: (1) the human genitals, pubic area or buttocks; and (2) the nipple of a female breast." Id. § 7507.1(e).
Statutes which are applicable to the same persons or things or the same class of persons or things are considered to be in pari materia , and, as such, should be read together where reasonably possible. The concept has long been recognized in our decisional law, see Commonwealth v. Trunk , 320 Pa. 270, 182 A. 540, 541 (1936), and it is codified in the Statutory Construction Act, see 1 Pa.C.S. § 1932(a) ("Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.").
Rather than relating to the same class of persons or things, however, we find the indecent assault statute's prohibition on the touching of an intimate part to be qualitatively distinct from the privacy statute's prohibition on the recording or photographing of intimate parts, parts "not intend[ed] to be visible by normal public observation." 18 Pa.C.S. § 7507.1(a)(2). The two statutes plainly do not relate to the same class of persons or conduct. Furthermore, in our view, to import the circumscribed definition of intimate parts in the privacy statute dealing with the unwanted photographing of certain body parts to the indecent assault statute would too greatly limit the clearly intended protections against unwanted sexual touching. While we recognize that the same phrase is used in two different sections of the Crimes Code (and also defined in the privacy statute), this does not compel the adoption of the invasion of privacy statute definition into the indecent assault statute. Indeed, as eloquently offered by the late Justice Ruth Bader Ginsberg, "[i]n law as in life ... the same words, placed in different contexts, sometimes mean different things. We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute." Yates v. United States , 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015). More to the point, "[w]here the subject matter to which the words refer is not the same in the several places where [the words] are used, or the conditions are different ... the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed." Id. at 538, 135 S.Ct. 1074. Thus, we decline Appellant's invitation to read the phrase "intimate parts" in pari materia with the invasion of privacy statute, and thereby we reject a definition of "intimate parts" limited solely to the genitals, pubic area, buttocks, or nipple of the female breast.
Finally, we observe that, while the common law made no special prohibition for indecent sexual contact – treating such conduct as a form of assault and battery – all 50 states have enacted criminal laws that prohibit offensive sexual touching, albeit they vary in their approach and degree of protection. These laws, like Pennsylvania's indecent assault statute, are typified by the two requirements: first, the unwanted touching of certain body parts, and, second, sexual intent, i.e. , touching for the purpose of arousing or gratifying sexual desire.
Certain jurisdictions detail a specific list of the physiological parts that are included in the crime of sexual contact. See , e.g. , Alaska Stat. Ann. § 11.81.900(61) (" ‘sexual contact’ means ... the defendant's (i) knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast"); D.C. Code Ann. § 22-3001(9) (" ‘Sexual contact’ means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person."); S.D. Codified Laws § 22-22-7.1 ("As used in this chapter, the term, sexual contact, means any touching, not amounting to rape, ... of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.").
Other jurisdictions define sexual contact as the unwanted touching of "sexual or other intimate parts", but specifically define the term "intimate parts" by a cataloguing of certain body parts. See , e.g. , Cal. Penal Code § 243.4(1) (" ‘Intimate part’ means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female"); Colo. Rev. Stat. Ann. § 18-3-401(2) (" ‘Intimate parts’ means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person."); Conn. Gen. Stat. Ann. § 53a-65(8) (" ‘Intimate parts’ means the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts."); Ga. Code Ann. § 16-6-22.1(a) ("For the purposes of this Code section, the term ‘intimate parts’ means the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female."); Mich. Comp. Laws Ann. § 750.520a(f) (" ‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttock, or breast of a human being."); Tex. Penal Code Ann. § 21.16 (" ‘Intimate parts’ means the naked genitals, pubic area, anus, buttocks, or female nipple of a person."); Wis. Stat. Ann. § 939.22(19) (" ‘Intimate parts’ means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being."); Wyo. Stat. Ann. § 6-2-301(ii) (" ‘Intimate parts’ means the external genitalia, perineum, anus or pubes of any person or the breast of a female person.").
In contrast to these jurisdictions, the Pennsylvania General Assembly, like several other state legislatures, chose not to define the phrase "sexual or other intimate parts" by providing an inventory of body parts, leaving such interpretation for the judiciary. See , e.g. , Ala. Code § 13A-6-60 (3) ("SEXUAL CONTACT. Any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party."); Mont. Code Ann. § 45-2-101(67) (" ‘Sexual contact’ means touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely: (a) cause bodily injury to or humiliate, harass, or degrade another; or (b) arouse or gratify the sexual response or desire of either party."); N.Y. Penal Law § 130.00 (McKinney) (" ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed."); Or. Rev. Stat. Ann. § 163.305(5) (" ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party."); Wash. Rev. Code Ann. § 9A.44.010 (13) (" ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.").
The legislative decision by the Pennsylvania General Assembly not to define the phrase by listing the specific body parts that constitute "other intimate parts," however, does not render the undefined term ambiguous. The legislature may articulate prohibited conduct in broad terms even in the criminal context, within constitutional boundaries. Even though some states have legislated a definitive list of body parts, our legislature was free to use broader language, and it remains our duty to interpret "other intimate parts" in accord with its common and approved usage, and its fair import. See 1 Pa.C.S. § 1903 ; 18 Pa.C.S. § 105.
Taking our guidance from the common usage discussed above, the context in which the phrase is employed by the legislature, and the mandate that we construe statutory language according to its common and approved usage, we conclude that the meaning of the phrase "sexual and other intimate parts" is not ambiguous. Further, we hold that, as used in 18 Pa.C.S. § 3101, the phrase is not limited to only sexual body parts, but rather, was also intended to mean a body part that is personal and private, and which the person ordinarily allows to be touched only by people with whom the person has a close personal relationship, and one which is commonly associated with sexual relations or intimacy.
Appellant contends that the rule of lenity should apply in this matter. The rule of lenity provides that, where a statute is penal and the language of the statute is ambiguous, the statute must be construed in favor of the defendant, and against the government. Commonwealth v. Cousins , 654 Pa. 55, 212 A.3d 34, 39 (2019) ("Under the rule of lenity, when a penal statute is ambiguous, it must be strictly construed in favor of the defendant."). The rule of lenity, though it has its origins in common law, is consistent with our rules of statutory construction, which require that provisions of a penal statute be construed strictly. See 1 Pa.C.S. § 1928(b) ("All provisions of a statute of the classes hereafter enumerated shall be strictly construed: (1) Penal provisions ...."). However, strict construction, as noted above, does not require that the words of a penal statute be given their narrowest meaning or that legislative intent should be disregarded. It does mean, however, that, if an ambiguity exists in a penal statute, such language should be interpreted in the light most favorable to the accused – that is, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt. See Fithian , 961 A.2d at 73-74. As made clear above, however, we do not find the phrase "other intimate parts" to be ambiguous in light of the common and approved usage of that phrase. 1 Pa.C.S. § 1903. Thus, the rule of lenity does not apply.
While an issue of first impression for our Court, the Superior Court has previously addressed the meaning of "intimate parts." While at this juncture we have no occasion to speak to whether the body parts at issue in these decisions are properly considered "intimate parts" under our analysis today, the decisions interpreted the phrase "other intimate parts" to encompass more than sexual organs. For example, in Capo , supra , the Superior Court interpreted "other intimate parts" to include the shoulders, neck, and back. Similarly, then-Judge, now Justice Wecht in Fisher , supra , opined that "[t]he backs of the legs can be intimate parts of the body, just as the shoulders, neck, and back were in Capo , ...." Fisher , 47 A.3d at 158 ; see also Evans , supra (holding evidence was sufficient to convict defendant of indecent assault where defendant wrapped his arms around victim and inserted his tongue into victim's mouth because such act would not occur outside of sexual or intimate situation).
We emphasize that the definition of "indecent contact," as written, expresses two distinct concepts which must be proven: first, the touching of a sexual or other intimate part of the person, and, second, such touching being for the purpose of arousing or gratifying sexual desire. 18 Pa.C.S. § 3101. Courts, however, sometimes conflate these two elements. For this reason, we reject the approach embraced by certain courts, in analyzing whether a part is "intimate," to focus not only on the area that is touched, but also on the manner of touching, and the circumstances surrounding the touching. See, e.g., People v. Sene , 66 A.D.3d 427, 887 N.Y.S.2d 8, 9 (N.Y. Supreme Court 2009) ; People v. Graydon , 129 Misc.2d 265, 492 N.Y.S.2d 903, 906 (Crim. Ct. New York Cty. 1985). Under our statute, the manner and circumstances of the touching go to the second element of whether the touching was for sexual gratification or desire. For this same reason, we reject Appellant's argument that prior Superior Court decisions are distinguishable from the matter sub judice because those decisions involved conduct that was more "intrusive and prolonged" than Appellant's conduct in this matter. Appellant's Brief at 15.
Applying this interpretation of the phrase "sexual or other intimate parts," we must decide whether the neck constitutes an intimate part of the body for purposes of the definition of "indecent contact." 18 Pa.C.S. § 3101. We find that, in ordinary social interaction, the neck is a personal and private body part. Similarly, we find that an adult does not usually touch or kiss the neck of another adult outside of personal or intimate relationships. Finally, we observe that a person's neck is routinely associated with sexual relations or intimacy. Indeed, we note that the term "necking," while broadly meaning "the act or practice of kissing and caressing amorously," https://www.merriamwebster.com/dictionary/necking, is, as its name suggests, also specifically identified with the sexual kissing of the neck. , Thus, we hold that the neck is an intimate body part for purposes of Section 3126.
See, "Necking" in Wikipedia, https://en.wikipedia.org/wiki/Necking ("making out, a term for heavy kissing of the neck or petting of that area"); "Necking" in Urban Dictionary, https://www.urbandictionary.com/define.php?term=Necking (defining "necking" as "[k]issing, biting, or licking of the neck during sex, or foreplay").
While not utilizing the same analysis that we embrace today, we note that other states interpreting the same statutory language, which was likewise derived from the MPC, have also found the neck to constitute an intimate part of the body. See , e.g. , State v. Meyrovich , 204 Or.App. 385, 129 P.3d 729, 733 (2006).
In offering a distinct interpretation of the phrase "sexual or other intimate parts," Justice Donohue, in her dissent, provides an uncertain standard largely based upon fashion mores — that is, by defining an intimate body part as one "customarily [ ] hidden from public view due to its personal and private nature." Dissenting Opinion (Donohue, J.) at 318, 320 (emphasis added). Justice Donohue accuses us of allowing conduct to be a relevant consideration in interpreting the phrase "intimate part," and claims that its standard avoids any examination of conduct; however, her proffered standard itself implicates conduct, as it describes an intimate body part as one that is "hidden" or "normally shielded" from public view. Id. at 318, 318–19. Justice Donohue's dissent also suggests that we have effectively expanded the meaning of intimate part to include "any body part." Id. at 318–19, 319–20 (emphasis added). But far from a "freewheeling" approach, id. at 319–20, our interpretation conceptualizes a narrow class of body parts limited to only those personal and private parts ordinarily allowed to be touched by those in a personal relationship, and which are commonly associated with sexual relations. Id. at 318. Indeed, in questioning whether the toe could be an intimate part of the body due to a foot fetish, Justice Donohue's dissent makes our point: a fetish, by definition, is uncommon, whereas the neck, as demonstrated above, is commonly associated with sexual relations.
Related thereto, Justice Donohue claims that our definition of intimate part includes how the touching is conducted evinces a basic misunderstanding of our decision today. We have made clear that what is an intimate body part is independent of how a body part is touched, which goes to the sexual gratification component of the definition of "indecent contact." See supra page 309–10 (stressing that there are two distinct elements constituting indecent contact "(1) the touching of a sexual or other intimate part and (2) the touching for the purpose of arousing or gratifying sexual desire."); id. at 314 n.17 (same). Thus, whether a part of the body was kissed, stroked, slapped, or poked does not inform whether the body part is intimate, but does speak to whether the touching was for sexual gratification. An example sharpens the point: if someone were to flick a bee off of a woman's breast, he would have touched what is reasonably considered to be an intimate part of her body, but the manner and purpose — a flicking done to prevent the person from being stung — goes to whether the touching was for sexual gratification. It is this later component, concerning the type and purpose of touching, that the MPC drafters exclusively focused on in comment 2 and footnote 11 to Section 213.4. See supra pages 309–10. In that vein, while we agree with Justice Donohue that indecent contact concerns invasions of personal dignity, Dissenting Opinion at 320–21, we strongly disagree with her unsupported contention that "the neck as a body part is surely not closely associated with personal dignity in the same way as clearer cases like the buttocks." Id. at 320–21. While the neck may be adorned with jewelry, so may the upper breast. Indeed, Justice Donohue's approach raises more questions than it answers, fails to provide the "yes-or-no answer" test that it purportedly strives for, see id. at 318–19, and greatly limits what might be commonly considered intimate body parts. For example, the top of a woman's breasts, often revealed through an evening dress, tank top, low-cut blouse, or bikini, are body parts that are not "ordinarily" hidden, and, thus, would seemingly be excluded under her approach. Perhaps only a portion of the breast is considered to be intimate under Justice Donohue's standard? Similarly, the inner thigh and at least part of the buttocks seemingly would be omitted from her definition of intimate part, as "short shorts," miniskirts, or thong bikini bottoms do not hide or shield these parts of the body. While we do not need to opine as to whether any of these parts are intimate parts, the examples illustrate the shortcomings and uncertain application of Justice Donohue's fashion-driven approach.
Finally, Justice Donohue criticizes the standard set forth today as potentially leading to "unreasonable results," and offering a "hand to neck" example in support. Id. at 321–22, 322–23. Rather than being unreasonable, albeit perhaps uncommon, a perpetrator forcing a victim's hand to touch his neck for purposes of sexual gratification would, in our view, offend a victim's sense of personal dignity. Whether a jury finds the touching of the neck to be for sexual gratification, the second element necessary to find indecent contact, however, is a separate fact-specific determination. To be clear, not every contact with the neck will constitute indecent contact, as the element of sexual gratification must still be proven to constitute indecent contact, and, ultimately, indecent assault. Regardless, we take comfort in knowing that, if our understanding of the phrase "intimate part" is contrary to the intent of the General Assembly, it may amend the statute to give our courts additional guidance.
Justice Wecht's dissent is even more troubling, as it misuses traditional tools of statutory construction to raise and resolve significant constitutional issues sua sponte —issues that lie far beyond the limited one on which our Court granted allowance of appeal. In doing so, the dissent takes the imprudent step of injecting and settling constitutional questions under the guise of statutory construction, an approach which would allow for judicial decisions on an endless number of constitutional issues, all without advocacy from the parties. At its core, Justice Wecht's dissent constitutes a thinly veiled resolution of an unpreserved void-for-vagueness challenge, finding any attempt to define the term "intimate" as "futile" and "undefinable." Dissenting Opinion (Wecht, J.) at 329, 335–36. Indeed, the dissent's shoehorning of an unpreserved constitutional issue into a pure statutory claim is made manifest, not only by his failure to offer his own interpretation of the statutory language at issue, but also by granting Appellant relief without applying any interpretation of the statute to the facts of this case — relief entirely consonant with a successful constitutional void-for-vagueness claim.
Initially, Justice Wecht evidently misapprehends our interpretation of the General Assembly's intent. Indeed, Justice Wecht misstates our understanding of the meaning of the statutory language. Rather than " ‘personal and private,’ or ... those [parts] that involve sexual activity," Dissenting Opinion (Wecht, J.) at 324 (emphasis added), our interpretation contains four required aspects: a body part; that is personal and private; which a person ordinarily allows to be touched only by other individuals with whom the person has a close personal relationship; and which parts are commonly associated with sexual relations or intimacy. These criteria are not disjunctive as asserted by the dissent. Rather than suggesting any body part, they reflect a limited number of parts of the body for which all four criteria are satisfied.
Furthermore, while Justice Wecht must acknowledge that Appellant failed to raise a constitutional void-for-vagueness challenge, he nonetheless reaches this constitutional question by performing an end-run around our well established decisional law which commands a waiver of the constitutional claim in these instances. Specifically, while not argued or even mentioned by Appellant, Justice Wecht relies upon our rule of statutory construction that "the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth" when promulgating legislation, 1 Pa.C.S. § 1922(3), to reach a void-for-vagueness claim.
The difficulty with Justice Wecht's invocation of Section 1922(3) is that it is not implicated under our analysis, and is imprudent. Initially, we remind that, "[a]lthough we must presume that the legislature does not intend to violate the Constitution, we do not invoke that presumption where the [statutory] language is clear." Commonwealth v. Omar , 602 Pa. 595, 981 A.2d 179, 185 (2009) ; see also Tri-Cnty. Landfill, Inc. v. Liberty Twp. Bd. of Supervisors , No. 175 C.D. 2013, 2014 WL 97316, at *16 (Pa. Cmwlth. filed Jan. 9, 2014) ("Tri–County's argument is premised on the principle of statutory construction that: ‘In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: ... (3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.’ 1 Pa.C.S. § 1922(3) ... Here, however, as explained above, the unambiguous language of the zoning ordinance can be reasonably read to encompass landfills within its broad definition of ‘structures.’ Thus, it is unnecessary to resort to legislative intent here."). Because we find the term "intimate" to be clear and unambiguous, we do not reach this aspect of statutory construction.
Furthermore, our Court has specifically and wisely eschewed the use of Section 1922(3) in the manner employed by the dissent in the context of statutory interpretation, based upon concepts of waiver and the absence of advocacy. As discussed in Tannenbaum v. Nationwide Insurance Co. , 605 Pa. 590, 992 A.2d 859 (2010) :
To the extent Section 1922(3) has been utilized, caselaw shows that it is employed in two instances — invoked as a presumption where a party makes a constitutional challenge to a statute, including a void-for-vagueness challenge, see Commonwealth v. Ludwig , 583 Pa. 6, 874 A.2d 623, 628 (2005), and when the parties offer two competing, but reasonable, statutory interpretations, and the court is tasked with choosing between them. See Commonwealth, Department of Transportation v. McFarren , 514 Pa. 411, 525 A.2d 1185, 1188 (1987) ("The legislature has also instructed us that in enacting a statute it ‘does not intend to violate the Constitution of the United States or of this Commonwealth.’ 1 Pa.C.S. § 1922(3). Therefore, if one interpretation results in conflict with another statute, or violation of the Federal or State Constitution, such interpretation cannot be accepted. ... Under the interpretation suggested by the Appellee and followed by the police in this case, the legislature would be delegating unbridled power to the police, resulting in a violation of Art. 1, § 8 of the Constitution of this Commonwealth."); see also Wolf v. Scarnati , 660 Pa. 19, 233 A.3d 679, 696 (2020) (referencing Section 1922(3) and emphasizing that "if a statute is susceptible of two reasonable interpretations, we will interpret the statute in such a manner so as to avoid a finding of unconstitutionality."); Commonwealth v. Herman , 639 Pa. 466, 161 A.3d 194, 212 (2017) ("Under the canon of constitutional avoidance, if a statute is susceptible of two reasonable constructions, one of which would raise constitutional difficulties and the other of which would not, we adopt the latter construction."). Limiting the use of Section 1922(3) in these situations avoids the serious concerns regarding waiver and advocacy voiced by our Court in Tannenbaum , infra .
We do note that some jurisdictions have found that similar efforts on the part of state legislatures violate constitutional norms. See, e.g., Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 836 (1980), overruled in part by Cmty. Res. for Justice, Inc. v. City of Manchester, 154 N.H. 748, 917 A.2d 707, 721 (2007). Nevertheless, the constitutional arguments are not presented here. Furthermore, in light of the lack of advocacy and the complexity of the issues, we decline to attempt to address such questions via the presumption, in statutory interpretation, that the Legislature did not intend an unconstitutional result. See 1 Pa.C.S. § 1922(3).
Id. at 868 n.12.
To sharpen the point, Justice Wecht's application of Section 1922(3) in these circumstances undermines our special role as an allocatur court, which grants review over specific issues. It vitiates well established law regarding the necessity of parties to preserve constitutional questions. Most importantly, it deprives the parties, and our Court, of advocacy on an unanswered, and waived, constitutional question. As we have noted, our courts should be cautious in the extreme in assuming the role of advocate. See, e.g., Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59, 75 (2008) (collecting cases which instruct that judges are not litigants and should not raise additional arguments on behalf of parties). This is because there may be uncontemplated consequences when courts sua sponte raise and resolve important constitutional issues without advocacy. In this vein, Justice Wecht's invocation of Section 1922(3) not only brings the constitutionality of the indecent assault statute before us into question, but other statutes which utilize the term "indecent contact" (for which the phrase "intimate parts" is a component), or the term "intimate." See , e.g. , 18 Pa.C.S. § 3124.2 (institutional sexual assault); 18 Pa.C.S. § 3124.3 (sexual assault by sports official, volunteer or employee of a nonprofit association); 18 Pa.C.S. § 3131 (unlawful dissemination of an intimate image); 18 Pa.C.S. 6312 (sexual abuse of children); 42 Pa.C.S. § 5533 (infancy, insanity, or imprisonment – civil action by minor for sexual abuse). A party in the future may bring a due process or a void-for-vagueness challenge, but we should not sidestep the time-honored process for consideration of such questions, including requiring a party to raise such a constitutional issue in the first instance.
Finally, to the extent Justice Wecht believes that the General Assembly's use of the term "intimate" is not explicit enough, and while we believe it improper to speak to an unpreserved constitutional void-for-vagueness challenge, we simply note that the General Assembly could have offered a list of body parts that it believed to be intimate. It did not. Rather, it left the task to the judiciary. The failure to catalog parts that it believed to be intimate, however, does not mean that the statute which it in fact drafted is unconstitutionally vague or ambiguous. See Commonwealth v. Davidson , 595 Pa. 1, 938 A.2d 198, 207-08 (2007).
For the reasons set forth above, we conclude that the Superior Court properly determined that, for purposes of the crime of indecent assault, the phrase "sexual or other intimate parts" includes a victim's neck, and thus that Appellant's unwanted grabbing of the victim from behind and kissing her neck for the purpose of sexual gratification constituted indecent assault. Accordingly, we affirm the order of the Superior Court.
Order affirmed. Jurisdiction relinquished.
Chief Justice Baer and Justices Dougherty, Mundy and Brobson join the opinion.
Justice Donohue files a dissenting opinion.
Justice Wecht files a dissenting opinion.
JUSTICE DONOHUE, dissenting
I respectfully dissent. To support a conviction for indecent assault, the Commonwealth must establish that the actor (1) touched, for purposes of sexual gratification, (2) an intimate part of the body. This case does not implicate the first prong. Instead, it presents the straightforward question of whether the General Assembly intended, when defining the term "indecent contact," to include the neck as an "intimate part" of the body. While undefined, I conclude that to be an "intimate part" the body part must customarily be hidden from public view due to its personal and private nature. The neck does not qualify as such.
18 Pa.C.S. §§ 3126(a) (criminalizing "indecent contact"); 3101 (defining "indecent contact" to include "touching of the sexual or other intimate parts").
Instead of analyzing whether the neck itself is an "intimate part" of the body, the Majority deems the actor's conduct a relevant consideration as to both elements, which in effect permits the Commonwealth to convict based solely on whether that conduct was done for purposes of sexual gratification. The Majority claims that it separates the actor's conduct from whether a part is intimate, but its analysis and conclusion show otherwise. In my view, the simpler conclusion, which is in line with legislative intent, is that determining whether a given body part is intimate or not calls for a yes-or-no answer with a threshold question of whether the body part is normally shielded from public view. Under that standard, the neck is not an intimate part of the body and the conviction at that count should be discharged.
I.
Initially, I agree with the Majority that the General Assembly's use of the word "intimate" signals an intent to prohibit the touching of more body parts than just the genitalia. See Maj. Op. at 308–09. I also agree with the fundamental point that the General Assembly easily could have delineated a list of body parts if it so chose, and the fact that it did not is important in ascertaining the meaning of the term.
My agreement with the Majority largely ends there. I conclude that the General Assembly intended for "intimate" to require that because of its intimate nature, the body part be customarily shielded from public view, which does not call for any examination of conduct. The Majority, in contrast, effectively holds that any body part is intimate by focusing on how the neck can be used in "sexual relations."
We find that, in ordinary social interaction, the neck is a personal and private body part. Similarly, we find that an adult does not usually touch or kiss the neck of another adult outside of personal or intimate relationships. Finally, we observe that a person's neck is routinely associated with sexual relations or intimacy. Indeed, we note that the term "necking," while broadly meaning "the act or practice of kissing and caressing amorously," is, as its name suggests, also specifically identified with the sexual kissing of the neck. Thus, we hold that the neck is an intimate body part for purposes of Section 3126.
Id. at 314 (footnotes and citation omitted).
To be clear, the Majority claims it does not hold that any body part may qualify as an intimate one. But where and how does it draw the line? If a relevant factor is whether the body part is one that we expect strangers not to touch, then virtually every body part is potentially included. The additional factor of whether a body part is "routinely associated" with sexual relations or intimacy lends itself to uncertain application. Are courts supposed to determine whether a body part has crossed the undefined threshold of "sometimes associated" with sexual activity to "routinely associated" with sexual activity? (Is foot fetishism sufficiently widespread that any toe is an intimate body part?) In practice the Majority has rewritten the General Assembly's definition of "indecent contact" to say "Any touching of any body part for the purpose of arousing or gratifying sexual desire, in any person." Instead, acts like kissing or touching (or probing or groping or fondling or anything else) have nothing to do with how we classify the body part that is targeted by those acts. The act of touching itself is relevant only to whether it was done for a sexual gratification.
The Majority believes that the question posed makes its point because "a fetish, by definition, is uncommon, whereas the neck, as demonstrated above, is commonly associated with sexual relations." Maj. Op. at 315. The Majority misses my point. Under the Majority's formulation of the test for a body part that is intimate, a court must have insight into what is "common" or "routinely associated with" sexual relations or intimacy. Maj. Op. at 314, 314–15, ––––. I suggest that such determinations are best left to experts like William H. Masters and Virginia E. Johnson. See Thomas Maier, Masters of Sex: The Life and Times of William Masters and Virginia Johnson, The Couple Who Taught America How to Love (2009) (chronicling the lives and research of two of America's most prominent sexologists, who studied human sexuality from the 1950s through the 1990s).
18 Pa.C.S. § 3101 (emphasis added).
I conclude that the General Assembly did not intend for courts to engage in a freewheeling assessment of the actor's conduct in determining whether a body part is intimate but instead intended for this statute to apply only to body parts that are normally shielded from public view because of their personal and private nature. As the Majority explains, the inspiration for this legislation was Model Penal Code Section 213.4. The overarching purpose of Article 213 is explained in the introductory note.
Article 213 contains the provisions of the Model Code on the complex and controversial subject of rape and related sex offenses. With respect to the crime of rape itself, the Model Code seeks to introduce a rational grading scheme by dividing the offense into three felony levels, reserving the most serious category for those instances of aggression resulting in serious bodily injury or for certain cases of imposition where there is no voluntary social and sexual relationship between the parties. The remaining sex offenses are classed as second- or third-degree felonies, and in some cases as misdemeanors.
* * *
Section 213.4 defines the offense of sexual assault, which is graded as a misdemeanor. Sexual contact is defined as any touching of the sexual or intimate parts of another person for the purpose of arousing or gratifying the sexual desire of either party.
MPC § 213, comment.
The placement of Section 213.4 under the larger umbrella of Article 213 reflects that the primary goal of the section was to capture sexual offenses. While the MPC did not define "intimate parts" or offer any limitation on which parts would qualify as "sexual or intimate," its placement alongside other sex crimes indicates that the MPC drafters intended "sexual" and "intimate" to be roughly equivalent. To the extent this raises the question of why "or intimate" appears at all, I suggest that the MPC drafters, and then our General Assembly, anticipated that the word "sexual" could be interpreted to mean only the reproductive organs. Adding "or intimate" guards against that limited interpretation.
The five offenses are: rape and related offenses, deviate sexual intercourse by force or imposition, corruption of minors and seduction, sexual assault, and indecent exposure.
See Maj. Op. at 301–02.
Additionally, I find the following MPC commentary helpful in discerning legislative intent.
Together, the limitation on the range of conduct included in the offense and the requirement of purpose differentiate invasion of personal dignity from the casual expression of affection or approval. The basketball coach who pats his players on the bottom is merely fulfilling a ritual of congratulation. Even if such contact proves unwelcome to the recipient, the actor may not be held liable for this offense.
Maj. Op. at 309 (quoting MPC commentary). The key to understanding the import of the criminalization of the conduct is that it results in an invasion of personal dignity.
The Majority observes that this example is about conduct and not whether a given body part is intimate. True, but the example illustrates that the drafters were concerned with invasions of personal dignity. The neck as a body part is surely not closely associated with personal dignity in the same way as clearer cases like the buttocks. People regularly expose their necks in public and in fact adorn their necks with jewelry; the same cannot be said of the buttocks or breasts under ordinary circumstances. On this score, I agree with Gamby that we should look to the crime of invasion of privacy to determine which body parts the General Assembly intended to qualify as "intimate." That offense prohibits photographing or videotaping "intimate parts ... that [the] person does not intend to be visible by normal public observation." 18 Pa.C.S. § 7507.1(a)(2). The General Assembly chose to define "intimate part" as "[a]ny part of ... the human genitals, pubic area or buttocks; and the nipple of a female breast." Id. (section paragraph eliminated). This understanding of "intimate" is consistent with one of the dictionary definitions. See Maj. Op. at 307 ("Indeed, dictionary definitions over time have consistently and broadly defined the adjective ‘intimate’ to mean something that is personal and private in nature, commonly associated with sexual relations, and these definitions persist today."). Genitals, the pubic area, buttocks, and the nipple of a female breast are all ordinarily hidden from public view and thus something that most people keep personal and private. The threshold limitation of whether the body part is generally exposed to the public in everyday circumstances implements legislative intent and provides some measure of certainty with respect to the conduct prohibited by statute.
The Majority asserts that these statutes are not in pari materia because they do not relate to the same class of persons or things. While it is true that both crimes are not considered sex crimes so that the proscribed conduct of the perpetrators is different in type, the fundamental concern of both the indecent assault statute and the invasion of privacy crime is identical: criminalizing invasions of personal dignity. The personal dignity interest is protected in both statutes by prohibiting unwarranted intrusions (whether recording or by touch) of intimate parts of the body. Similarly, I disagree that by examining the invasion of privacy statute we necessarily too greatly limit the protections from unwanted touching by importing the circumscribed definition of intimate parts from the invasion of privacy statute. Maj. Op. at 311. We need not express any view on whether the term "intimate part" for purposes of indecent assault should be read to be identical to the invasion of privacy statute. The definition in the privacy statute gives us insight into the Legislature's view of what constitutes an intimate body part. Clearly, they all share a common characteristic: they are normally covered from public view due to their private and personal nature. The neck does not have that characteristic. Whether the crime of indecent assault extends to body parts not listed by the invasion of privacy statute but share that characteristic, e.g., the inner thigh, is a case for another day.
Contrary to the dissent's suggestion, whether the inner thigh is an intimate body part is not necessarily answered by my proposed definition of that term. To reiterate, that case is for another day as is the classification of the "top of a woman's breast" as hypothesized in the Majority's opinion. Maj. Op. at 315–16. On the other hand, because the buttocks is subsumed in the Legislature's definition of intimate body part in another statute that protects an individual's dignity from invasion, under my analysis, it would likewise be an intimate body part for the purposes of the offense of indecent assault.
While the approach I favor does not necessarily produce a definitive list of intimate body parts, it does provide an objective starting point for a court's ultimate determination of the question. Nor is it fashion-driven, id. at 311, unless the General Assembly's policy considerations in defining an intimate part of the body in a related context can also be classified as fashion-driven. Respectfully, in my view, it is wiser to craft a definition following a related legislative policy determination than to instruct our courts to divine what body parts are common or routinely associated with sexual relations or intimacy.
See Commonwealth v. Scolieri , 571 Pa. 658, 813 A.2d 672, 678 (2002) ("[W]here doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt.") (citation omitted).
II.
Finally, I conclude that the Majority's conclusion, driven by interweaving the two distinct parts of the definition of intimate contact, leads to unreasonable results that the General Assembly could not have intended. For ease of reference, I repeat the indecent assault offense text:
It is unclear what type of test the Majority is adopting. Some jurisdictions interpreting similar statutes apply an objective "reasonable person" standard. "Common use of the English language would indicate that the term ‘intimate parts,’ in the context of the statute, refers to any part of the body which a reasonable person would consider private with respect to touching by another." Parker v. State , 406 So. 2d 1036, 1039 (Ala. Crim. App. 1981). Other courts incorporate a "community standard." See Bible v. State , 411 Md. 138, 982 A.2d 348, 357 (2009). Others view the inquiry as involving both a subjective and objective component. State v. Woodley , 306 Or. 458, 760 P.2d 884, 887 (1988) ("[T]he part must be subjectively intimate to the person touched, and either known by the accused to be so or to be an area of the anatomy that would be objectively known to be intimate by any reasonable person."). Notably, courts may defer to legislative determinations of what should be viewed as "intimate." See Bible , 982 A.2d at 357 (citing Maryland statute criminalizing visual surveillance with prurient intent).
The Majority agrees that courts "sometimes conflate" the conduct with the body part at issue and stresses that it does not consider conduct when assessing whether a part is intimate. Maj. Op. at 314 n.17. If so, it is unclear why the Majority deems it relevant "that an adult does not usually touch or kiss the neck of another adult outside of personal or intimate relationships." Id. at 314. That observation considers conduct; moreover, most body parts are not regularly "touch[ed] or kiss[ed]" outside of those relationships. The same goes for "the sexual kissing of a neck." Contrary to the Majority's declaration, I do not suffer from a basic misunderstanding of its opinion. Id. at 314–15. There is no need to discuss conduct at all in determining whether a body part is intimate.
Finally, the Majority cites State v. Meyrovich , 204 Or.App. 385, 129 P.3d 729, 733 (2006), which concluded that the neck was an intimate body part. Its disclaimer that Meyrovich does not "utiliz[e] the same analysis that we embrace today" obscures the fact that the only reason Meyrovich concluded that the neck was an intimate body part was because that jurisdiction considers conduct, which, in that case, involved the defendant "sucking on" the victim's neck. 129 P.3d at 731. Thus, the case has no persuasive value whatsoever unless conduct is relevant.
See The Statutory Construction Act of 1972, codified at 1 Pa.C.S. §§ 1501 -1991 (the "Act").
(a) Offense defined.-- A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
This language establishes three basic scenarios for how the crime is committed. First, "a person" (the defendant) is guilty if "the [defendant] has indecent contact with the [victim.]" Second, the defendant is guilty if he or she "causes the [victim] to have indecent contact" with the defendant. Third, a defendant is guilty if he or she causes the victim to come into contact with seminal fluid, urine or feces. Each scenario requires that the act be done for purposes of arousing sexual desire in the person or the complainant.
The third possibility is not implicated by the Majority's holding, but the first two are because the "indecent contact" definition applies to both. By holding that the neck is an intimate body part, a person is guilty of indecent contact under the second scenario if the perpetrator places a victim's hand against the perpetrator's neck for purposes of sexual gratification. In my view, the General Assembly would not have intended such contact to constitute a sex crime. This "hand to neck" example does not offend the victim's personal dignities. It is in no way comparable to placing the victim's hand on a body part that is normally shielded from public view. Placing a victim's hand on one's buttocks, genitals, pubic area, or female nipple universally offends personal dignities whereas moving a hand to touch the perpetrator's neck does not. Thus, defining intimate body parts as those ordinarily hidden from public view in keeping with the invasion of privacy statute not only reflects legislative intent, it avoids bizarre outcomes. I therefore respectfully dissent.
The Majority steadfastly suggests that this touching would offend a victim's personal dignity but says it need not address this fact-specific circumstance. Maj. Op. at 315–16. By today's holding, the Majority in fact addresses this fact-specific circumstance. Because by its definition, the neck is an intimate part of the body, if a perpetrator places a victim's hand against the perpetrator's neck for sexual gratification, the sex crime — indecent assault — has been committed.
Id. § 1921(a).
JUSTICE WECHT, dissenting
The crime of indecent assault requires, among other things, that a person have "indecent contact" with another person.1 The General Assembly has defined "indecent contact" as any "touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person."2 The General Assembly has left the phrase "other intimate parts" undefined. That task now falls to this Court, as we are asked in this case to decide whether the neck is an "intimate part" for purposes of indecent assault. In attempting to clarify the phrase, the Majority adds further confusion, stating that it refers to "those parts of the body that are personal and private, and which a person ordinarily allows to be touched only by other individuals with whom the person has a close personal relationship, and which are commonly associated with sexual relations or intimacy."3 Because the Majority's virtually boundless definition of "other intimate parts" muddles the criminal law more than clarifies it, I cannot endorse its use.
"Intimate" is an ambiguous term. In the context of this criminal case, it cannot be defined in a straightforward, singular way, nor in a way that comports with our canons of statutory construction and our Constitutions. I have attempted at length to craft my own definition of the term within those boundaries. I have been unable to do so. Nonetheless, this case still must be resolved. The rule of lenity compels the conclusion that the neck is not an "intimate" body part for purposes of indecent assault.4 Because the Majority holds otherwise, I respectfully dissent.
Statutory interpretation is often a complicated task. That is particularly true in a case involving a term like "intimate," which can be understood in a multitude of ways. However, that our inquiry is difficult does not mean that it is boundless. To the contrary, interpreting courts are circumscribed by the rules and objectives of the Statutory Construction Act.5 First and foremost, pursuant to the Act, an interpreting court's primary objective is "to ascertain and effectuate the intention of the General Assembly."6 In pursuing this objective, "[e]very statute shall be construed, if possible, to give effect to all its provisions," and that "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage."
Id.
Id. § 1903(a).
The first step in any exercise of statutory interpretation asks whether the contested statutory term is ambiguous. A "statute is ambiguous when there are at least two reasonable interpretations of the text." We begin with ambiguity, because "[w]hen the words of a statute are clear and free from all ambiguity," that plain language controls, even if doing so contravenes the General Assembly's putative intent. Indeed, the Act mandates that "the letter of [the statutory language] is not to be disregarded under the pretext of pursuing its spirit."
A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 905-06 (2016).
Today's Majority determines that "intimate" is unambiguous. That is because, according to the Majority, "intimate" can only be interpreted in one reasonable way. To divine the term's "common and approved usage," the Majority draws heavily upon dictionary definitions and asserts that these have "consistently and broadly" defined "intimate" to "mean something that is personal and private in nature, commonly associated with sexual relations." This articulation of what "intimate" means not only fails to demonstrate that the term is unambiguous, but it actually renders the term even more imprecise and even more susceptible to divergent understandings.
See Maj. Op. at 313.
Id. at 306–07; 1 Pa.C.S. § 1903.
Maj. Op. at 307–08.
The main problem with the Majority's formulation is that it contains (at least) two dissimilar components. The Majority cannot seem to decide whether "intimate" refers to those aspects of life that are "personal and private," or to those that involve sexual activity. Instead of recognizing the tension between the two reasonable uses of "intimate," the Majority amalgamates the two into a single hybridized definition and then announces that this fusion eliminates any ambiguity.
To be sure, both aspects of the Majority's understanding of "intimate" can claim some dictionary support. As the Majority recounts, Webster's Third New International Dictionary from 1961 states that "intimate" can refer to actions or feelings associated with "very close personal relationships." It also can pertain to those "deeply personal (as emotional, familial, or sexual) matters," or "engaged in or marked by sexual relations." Other dictionaries cited by the Majority reveal similar variations. Those sources describe "intimate" as "characterizing one's deepest nature," of "a very personal or private nature," something "personal and private, often in a sexual way," or "marked by very close association, contact, of familiarity." However, those same sources define "intimate" in ways that differ substantively from those relied upon by the Majority. For instance, Merriam-Webster's online dictionary also defines "intimate" as "marked by a warm friendship developing through long association," "suggesting informal warmth or privacy," and "a very close friend or confidant." The Oxford Learner's Dictionary provides various other definitions, such as "having a close and friendly relationship" and "very detailed."
Id. at 308 (quoting Webster's Third New International Dictionary (1961)).
Id. (citations omitted).
Intimate , Merriam-Webster, https://www.merriam-webster.com/dictionary/intimate (last visited Aug. 17, 2022).
Intimate , Oxford Learner's Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/intimate (last visited Aug. 16, 2022).
Confronted with such disparate definitions, an appellate court must consider the context in which the term appears in order to ascertain the "common usage" of a term, and must then determine whether that term is ambiguous. As the Supreme Court of the United States explained in Yates v. United States ,
574 U.S. 528, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015).
"[w]hether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words." Rather, "the plainness or ambiguity of statutory language is determined [not only] by reference to the language itself," but also by considering "the specific context in which that language is used, and the broader context of the statute as a whole. Ordinarily, a word's usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things."
Id. at 537, 135 S.Ct. 1074 (cleaned up); see also A.S. , 143 A.3d at 906 (explaining that a term still can be unambiguous if the context in which it is used provides the necessary clarity.).
Here, the statutory context in which we consider the term "intimate" is the human body. Even in this limited context, the term remains ambiguous. If that were not so, each and every human body part readily could be categorized as either "intimate" or "not intimate." Obviously, that is not the case. The variations between what might be considered "intimate" would differ widely, and would be substantially affected by factors such as age, gender, social and religious beliefs, etc. A twenty-eight-year-old member of a kink community likely would disagree with an eighty-year-old member of an Amish community as to what falls within the definition of an "intimate" part. That is the difficulty with interpreting this term—neither of those two individuals’ understanding of the term would be unreasonable. The term is capable of being understood in nearly countless ways.
A "kink community" is one that participates in a "culture or lifestyle outside of the social norm centered around consensual non-egalitarian relationship practices, concepts of monogamy, sexual interactions, sexual activities and/or fantasies as a means for heightened intimacy between partners." Sally M. Yates, & Anita A. Neuer-Colburn, Counseling the Kink Community: What Clinicians Need to Know , 1 J of Counseling Sexology & Sexual Wellness: Research, Practice, and Education 15 (2019).
The Amish "are a group of traditionalist Anabaptist Christian[s] ... known for simple living, plain dress, Christian pacifism, and slowness to adopt many conveniences of modern technology, with a view neither to interrupt family time, nor replace face-to-face conversations whenever possible, and a view to maintain self-sufficiency." https://en.wikipedia.org/wiki/Amish (last visited Aug. 18, 2022). "The Amish value rural life, manual labor, humility, and Gelassenheit (submission to God's will), all under the auspices of living what they interpret to be God's word." Id.
Even in this context, the Majority's attempt to support the purported absence of ambiguity with terms such as "commonly associated with sexual relations," "private," and "personal" actually operates to the opposite effect. These terms are susceptible to a myriad of reasonable interpretations when used in reference to the human body. Even considering the term "intimate" in the limited sexual context does not narrow its ambit. The variables that must be considered if one were to seriously contemplate what is "private" or "personal" with regard to the human body or to sexual encounters, which itself involves a wide range of person-to-person contact, are too vast to condense into a unitary understanding of "intimate." There is no objective line that can be drawn between what is private or personal, and what is not. What is personal or private is unique to each individual, predicated upon the many differing sociological factors that influence a person's own beliefs and preferences. The Majority considers none of these variables before proclaiming that "intimate" has only one reasonable meaning.
Moreover, by using the term "commonly" when connecting the term "intimate" to "sexual relations," the Majority implicitly, but inarguably, holds that "intimate" does not always refer to sexual activities. Naturally, another question arises: how can a term that the Majority insists can be susceptible to only one reasonable meaning refer to sexual activity only sometimes ? If we keep faith with the Majority's use of the term "commonly," it necessarily follows that, when asked, one reasonable person could say that "intimate" relates to a sexual situation while another equally reasonable person could say that it relates to a non-sexual situation, perhaps to a friendship instead. Not only would both of these people be correct, but their reasonable, though nonetheless opposing, views demonstrate the ambiguity of the term "intimate."
But let us assume for argument's sake that the term necessitates some kind of association with sexual activity. It strains (no, it violates) credulity to conclude that no two reasonable people would understand "sexual relations"—a term that encompasses a wide array of behavior—differently. Simply put, concepts such as "intimacy," "privacy," "sexual relations," and "close personal relationships" are not susceptible to a one-size-fits-all approach, and are readily capable of being understood in myriad reasonable ways. To maintain otherwise is to superimpose upon Twenty-First Century humanity a Victorian (or perhaps pre-Victorian) sensibility. This is of course nonsensical.
The disparate understandings of that particular term in part led to impeachment proceedings against a sitting United States President, whose understanding of that term differed significantly from that of those who prosecuted him. On January 26, 1998, in response to an allegation of oral sex with a White House intern, President William Jefferson Clinton infamously proclaimed that he "did not have sexual relations with that woman." CNN, A Chronology: Key Moments in the Clinton-Lewinsky Saga , https://www.cnn.com/ALLPOLITICS/1998/resources/lewinsky/timeline (last visited Aug. 17, 2022).
For these reasons, it is undeniable that the Majority's interpretation is just one of several reasonable interpretations. And that means that the term is ambiguous. An interpreting court must then attempt to understand the language of the statute by consulting other canons of interpretation.
Even when interpreting an ambiguous term, the court's goal is to define that term in a way that aligns with the General Assembly's intent. "Where the text of the statute is not explicit, we glean the General Assembly's intention by examining various factors such as the occasion for the provision, the context in which it was passed, the mischief it was designed to remedy, and the object it sought to attain."
Commonwealth v. Cobbs, ––– Pa. ––––, 256 A.3d 1192, 1216 (2021) (citing 1 Pa.C.S. § 1921(c) ).
Unlike many other crimes defined in the Sexual Offenses chapter of the Crimes Code, the crime of indecent assault was not enacted in order to address physical injury or harm inflicted by unwanted sexual contact. Rather, the General Assembly was concerned with the "outrage, disgust, and shame engendered in the victim rather than ... physical injury to the victim." The criminalization of indecent assault is aimed at protecting against the "invasion of personal dignity."
Commonwealth v. Capers , 340 Pa.Super. 136, 489 A.2d 879, 882 (1985).
Model Penal Code ("MPC") § 213.4, cmt. 2, "Sexual Contact" (footnote omitted).
To effectuate this important objective, the General Assembly could have made it illegal to touch any part of another person's body without that person's consent and for the purpose of sexual gratification. That iteration of the offense not only would have been unambiguous, eliminating the need for judicial interpretation, but it also would have avoided many of the constitutional problems that the present version poses. Instead, the General Assembly opted to take an opaque and complicated path.
The General Assembly set forth the crime of indecent assault as follows:
A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and ... the person does so without the complainant's consent.
As noted above, "indecent contact" is defined as any "touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." By its very terms, the statute creates three distinct categories of body parts: (1) sexual parts; (2) "other intimate parts"; and (3) those parts that are neither sexual nor intimate. The General Assembly has provided no guidance as to which body parts fall into these categories.
18 Pa.C.S. § 3101 (emphasis added).
Even "sexual parts" presents interpretive challenges. It is beyond dispute that the male and female reproductive organs (penis and scrotum, and vagina) are "sexual parts." That is where any clarity ends. Even if we assume that "sexual" is limited to sexual intercourse, confusion remains because even that term encompasses different acts and different body parts depending upon the orientation or preferences of the participants. No one action constitutes "sexual" acts, and even what constitutes a definitive list of "sexual" body parts may be open to dispute in a future case.
Before delving further into the complexities of defining "intimate," it is helpful to identify the ways in which the term cannot be defined. First, a body part cannot be deemed "intimate" by reference to the idiosyncratic beliefs or actions taken by the particular defendant or based upon the fact that the defendant derived sexual gratification from touching. For purposes of a criminal statute, a body part does not change. It is either "intimate," or it is not. A part does not become an "intimate" part by virtue of either the way that the defendant touches it or the effect that touching the part has on the actor.
For instance, a victim's neck cannot be deemed "intimate," ipso facto , because it was kissed, rather than poked. Or consider an elbow, and assume that it is not "intimate" for purposes of indecent assault. The elbow does not become "intimate" under the statute if a defendant, who happens to be sexually stimulated by elbows, touches another person's elbow and is then aroused by it.
The reason that neither the defendant's sexual gratification nor the type of touching can define "intimate" is obvious. If either of those considerations served as the defining feature, then any body part could become an "intimate" one. That cannot occur consistently with the statute. If the General Assembly wanted to prohibit the touching of any body part, it could have said so. It did not. Instead, it prohibited touching of "sexual" parts and "other intimate" parts. To allow sexual gratification to define the body part would be to render the term "intimate" superfluous. Our job when interpreting a statute is to find the meaning that best comports with the General Assembly's intent. It is not to create an entirely new crime. In this case, that means that the neck cannot be an "intimate" part merely because Gamby appeared to have been aroused by kissing the victim there.
Nor can a body part be deemed "intimate" based upon the subjective feelings or beliefs of the victim. What is "intimate" for purposes of the codified crime of indecent assault cannot shift and slide around based upon the feelings of the individual actors. Due process requires that crimes be defined in a way that provides fair notice to a defendant before he or she commits the crime as to what is, and what is not, criminal. One cannot possess the requisite mens rea to commit a crime unless one knows that what one is about to do is a crime. What constitutes a crime cannot change from person to person, from individual belief to individual belief. For purposes of indecent assault, a defendant cannot be forced to guess as to whether a particular complainant believes that the part the defendant touches is an "intimate" one.
Cf. Commonwealth v. Sims , 591 Pa. 506, 919 A.2d 931, 939 (2007).
Imagine two defendants. They touch two different complainants on the earlobe. Assume that, in both instances, the touching is unwanted and is undertaken for purposes of sexual gratification. Now, suppose one of those two complainants considers the earlobe to be "intimate" while the other does not. If we permitted a part to be deemed "intimate" based upon the subjective belief of the complainant, one of the defendants here has committed the crime of indecent assault, while the other has not, even though neither had any idea beforehand how the complainant felt about the matter. This is an untenable and unconstitutional construct. What is "intimate" for a criminal statute cannot change from complainant to complainant, lest a defendant's culpability would be left to chance, rather than based upon a proper mens rea .
What is "intimate" cannot be determined based upon nothing more than identifying the body part targeted by the defendant, upon whether the part arouses the defendant, or upon the individual, subjective beliefs of the complainant. The term must be defined objectively and in a way that provides fair notice and can be consistently applied. Defining "intimate" in this way would permit this Court to quickly and accurately identify all of the parts of the human body that are "intimate," leaving no confusion going forward. Unfortunately, doing so is not just a herculean task; it is one that is impossible within the confines of the law.
The Oregon Supreme Court has aptly described this difficulty:
In protecting "intimate areas" of the human body, the statute invokes individual and cultural standards, and perhaps also the social psychology of group decision by a jury asked to agree on what is "intimate" while reacting to the circumstances of one case. No area of the anatomy is intrinsically intimate, for instance, to an X-ray camera. The question is whose sense of intimacy matters. Is the perception that of the person touched, of the person who touches, of a third person such as a parent or bystander? Is it that of the legislature, of some identifiable community, or of the factfinder at trial?
* * *
"Intimate parts" are more than "sexual parts," but in context the words refer to parts that evoke the offensiveness of unwanted sexual intimacy, not offensive touch generally. That does not go far toward solving the problem of subjective or cultural differences, which attach varying meanings to such common social customs as hugging, kissing, holding hands, or linking arms among members of the same sex or of opposite sexes, not to mention unusual or idiosyncratic sexual tastes or inhibitions. Are lips intimate parts? Are knees or feet intimate, hands or elbows not? To hold that these are or are not intimate parts as a matter of law assumes that the lawmakers had in mind a chart or catalogue of "intimate" parts of the human body, which they did not list in the law but expect courts to divine from the word itself. Thus the statute also would fix this chart at the time of enactment, so that if, for instance, skirts at that time had never risen above the ankle, not only the "thigh area" but the shin would be intimate as a matter of law in the age of the miniskirt and the bikini. Sometimes statutes do that kind of thing, but it did not happen here.
State v. Woodley , 306 Or. 458, 760 P.2d 884, 886 (1988).
As the Oregon Supreme Court observed, the problem is that the questions involve policy judgments, sociological understandings, and factual line-drawing. Those are all jobs for the legislative branch, not for this Court. We are not social scientists. We are not equipped with the skills, experience, resources, and mandate necessary to separate "common social customs" from "idiosyncratic sexual tastes or inhibitions" and from purely prurient actions. We possess no innate ability as jurists to divine an understanding of this broadly used, but nonetheless vague, term in a way that answers all of the questions astutely raised by the Oregon Supreme Court. Any judicial attempt to define the term "intimate" is futile. Even worse, the attempt does more harm than good by confusing the matter further. Unfortunately, that is precisely what the Majority does here.
Id.
The Majority holds that the phrase "intimate parts" was "intended to mean a body part that is personal and private, and which the person ordinarily allows to be touched only by people with whom the person has a close personal relationship, and one which is commonly associated with sexual relations or intimacy." This is not a definition at all. It is a mess. A definition provides clarity, setting forth a term that is readily understandable without raising additional questions. What the Majority creates instead is, charitably viewed, a test.
Maj. Op. at 313–14.
The Majority calls it a "standard." Id. at 315–16.
The Majority's choice of this path poses a number of insurmountable problems. First, the Majority apparently only is concerned with providing a framework for use by trial and appellate courts in resolving challenges to indecent assault. The goal of statutory interpretation is to provide clarity to all Pennsylvanians, not just the courts. We cannot reasonably expect citizens to execute a multi-part, vague test in order to understand a statutory term. The citizenry at large is at least as entitled as the judiciary to know what the law means.
This leads to the second, and more important, problem with the Majority's test: it is unconstitutional. Before going any further, it is important to note that Gamby has not raised a due process vagueness challenge to his indecent assault conviction. In fact, he does not make any constitutional arguments. Thus, in this particular case, we have no occasion as a jurisprudential matter to strike down that statute as unconstitutionally vague.
See Steiner v. Markel , 600 Pa. 515, 968 A.2d 1253, 1256 (2009) ("This Court has consistently held that an appellate court cannot reverse a trial court judgment on a basis that was not properly raised and preserved by the parties.").
However, the absence of a substantive constitutional claim does not mean that due process considerations are entirely irrelevant in this case. We cannot interpret a statute in a way that violates our Constitutions. Section 1922(3) of the Statutory Construction Act requires a court to presume that the General Assembly does not intend to enact laws that are unconstitutional, and thus instructs courts to construe statutes "whenever possible to uphold their constitutionality." "Therefore, if one interpretation results in ... violation of the Federal or State Constitution, such interpretation cannot be accepted." Because the Majority's newly-minted "intimate parts" test violates the Due Process Clauses of our Constitutions, it "cannot be accepted."
In re William L. , 477 Pa. 322, 383 A.2d 1228, 1231 (1978).
Pa. Dept. of Transp. v. McFarren , 514 Pa. 411, 525 A.2d 1185, 1188 (1987).
Id.
Initially, it is worth noting that Gamby does not raise this species of constitutional claim either. But Gamby was not required to do so. He cannot be expected to anticipate this Court's ultimate rulings, and then argue that such an anticipated standard is unconstitutional. Gamby could not have anticipated that the Majority would adopt today's standard in lieu of a definition. It would be one thing if the Majority adopted the Commonwealth's suggested interpretation. Gamby would have been on notice of the possibility of such a result, and could have responded to it in a reply brief. But the Commonwealth only argued that "intimate parts" were those "subject to sexual contact or relations." Gamby could not have known that this Court would far exceed that suggestion, and he was under no obligation to respond to an unforeseeable result. The Majority's holding runs afoul of the constitutional command that penal statutes cannot be vague. This Court has explained that principle as follows:
Brief for the Commonwealth at 11.
The Majority accuses me of a "sua sponte " discussion of constitutional questions that exceed this Court's grant of review. Maj. Op. at 316. The Majority insists that, in my "zeal" to address a constitutional question, I overlook principles that purportedly require that we find any constitutional claim to be waived. Id. at 317. Finally, the Majority claims that the most "aberrant" aspect of my analysis is that, because it exceeds our grant of review, the parties and this Court are denied advocacy on the issue. Id. at 318.
To be clear, I have no particular "zeal" to address any issue. In fact, because I find the statute to be ambiguous, and incapable of a useable definition, I have no need to discuss, let alone analyze, any constitutional question. Left to my own devices, I believe a straightforward statutory construction analysis leads directly to the only canon that can solve today's dilemma: the rule of lenity.
By faulting me for raising constitutional issues sua sponte , the Majority obfuscates the fact that the constitutional defect in this case is created entirely by its own chosen construction of the term "intimate." Any discussion of waiver, or the lack of advocacy before this Court, begins and ends with the fact that the Majority chose to interpret the term in a way that was not endorsed or suggested by either party, and thus could not be anticipated by anyone. It was the Majority on its own that elected to thrust upon the people of Pennsylvania an unconstitutional definition of the contested term. Of course Gamby did not (and could not) raise a challenge yesterday to the interpretation selected by the Majority today. And of course there is no advocacy on the topic. No one could have predicted that the Majority would go so far in its analysis, to the point of creating a statute that provides no meaningful notice to anyone on the street seeking to know what the law of indecent assault entails.
Ironically, the Majority's analysis itself demonstrates the inapplicability of the waiver doctrine it champions. The Majority notes that there are two situations in which the constitutional avoidance canon is utilized: (1) when a party makes a facial challenge; and (2) when the parties offer two different interpretations and the Court is asked to choose one. Id. at 317–18 (citations omitted). In those circumstances, it is foreseeable that the canon would be relevant. In the first situation, the constitutionality of the provision is directly in play. In the second situation, it is incumbent upon the parties to raise any and all challenges to the differing interpretations offered in the case. What happened here resembled neither of these scenarios. There is no direct constitutional challenge, and the Court is not choosing between the two interpretations proffered by the parties. Instead, the Majority embarks on its own unpredictable path. The canon of constitutional avoidance was in no way a foreseeable line of argument, and the Majority cannot now hide from criticism because no one enjoyed such foresight earlier.
Conspicuously, the Majority does not counter in any meaningful way the substantive claim that its interpretation is unconstitutional. Instead, the Majority chooses to stand on prophylactic procedural considerations that cannot fairly be imposed retroactively upon the parties. It is troubling indeed that this Court sua sponte chooses an unconstitutional interpretation and then demands impunity from criticism because no one had a crystal ball allowing them to anticipate that the Court would now venture onto such a wayward path.
To be clear, and the Majority's insistence notwithstanding, I do not at this time assert that, as a substantive constitutional matter, our indecent assault statute is void-for-vagueness. I do, however, state that, by interpreting "intimate" in vague, broad terms, the Majority violates the Due Process Clauses. Despite the Majority's best efforts to toss about inapplicable procedural concerns, the consequence of its decision is inescapable: without being asked to do so, the Majority interprets the crime of indecent assault in a way that will result in countless constitutional violations. I cannot sit idly by while this occurs, nor do so merely because no party anticipated this disastrous result.
[T]he terms of a penal statute ... must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. ... [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Commonwealth v. Heinbaugh , 467 Pa. 1, 354 A.2d 244, 246 (1976) (citation omitted).
"[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."
Commonwealth v. Mikulan , 504 Pa. 244, 470 A.2d 1339, 1342 (1983) (quoting Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ).
The Majority's interpretation of "intimate" can satisfy due process only if it provides "reasonable standards" by which a person may gauge his future conduct. The ordinary person seeking to know what is prohibited by the indecent assault statute must now grapple with discerning what body parts are "personal and private, and which the person ordinarily allows to be touched only by people with whom the person has a close personal relationship, and one which is commonly associated with sexual relations or intimacy." Even a brief, superficial review of these elements reveals its irredeemable vagueness.
Heinbaugh , 354 A.2d at 246.
Maj. Op. at 313–14.
First, the ordinary person must know what it means for a body part to be "personal and private." The Majority does not define either term. Nor does it explain which, and whose, standards are to be applied. As the Oregon Supreme Court noted, these are not universal, easily identifiable standards, but instead require a complex understanding of diverse and changing "individual and cultural standards." What is personal or private to one reasonable person might not be so to another. These are feelings and beliefs unique to particular persons and not susceptible to universal application, particularly in the context of the human body. These concepts substantially are influenced by sociological forces such as age, gender, religion, experiences, relationships, and a galaxy of individual human idiosyncrasies.
Woodley , 760 P.2d at 886.
By way of example, consider the abdominal region of the body. It is as equally reasonable for a young man raised in a strictly religious household to believe that his abdominal area is personal and private, as it is for an adult woman raised without religion to expose her abdomen in a two-piece bathing suit on a public beach. Under the Majority's test, which of these equally reasonable beliefs would be "personal and private"? More importantly, how is the ordinary person supposed to know if the young man or the adult woman is correct as to whether the abdominal area is "personal or private?" The answer is simple. That person cannot know. The Majority forces the ordinary person to guess as to what is, and what is not, "personal and private." The Majority's very first element violates each of the vagueness standards set forth above.
The constitutional deficiencies do not end there. In order for a touching to be prohibited under the statute, the Majority tells us, it must be on a place that a person "ordinarily" allows to be touched as part of a "close personal relationship." Once again, the Majority does not elaborate on these terms in any substantive way. A person can have a "close personal relationship" with a parent, a sibling, a sports coach, a friend, a minister, rabbi, priest or imam, a grandparent, a co-worker, and so on and so forth. And, who has to be in that relationship? Assume again that the question is whether the abdominal area constitutes an "intimate part." Which of these "close personal relationships" controls? And how often must that body part be touched within the context of that relationship to be considered "ordinary?" Assume the abdomen is touched "ordinarily" in one of these relationships, but not in another. How do we know which one prevails for determining whether the body part is "intimate?" The more important question is: how is the ordinary, everyday person supposed to know?
The final element of the test fares no better. The Majority concludes its standard by asking whether the body part is "one which is commonly associated with sexual relations or intimacy." As mentioned, even the term "sexual relations" creates confusion. The Majority does not tell us what constitutes "sexual relations." It could be sexual intercourse, oral sex, kissing, or any other touching that occurs during a sexual encounter between two people. Even worse, the part does not have to be always associated with "sexual relations." It only has to be "commonly" associated with such relations. Needless to say, the Majority does not explain how often a part has to be used during "sexual relations" to be "commonly" associated therewith. Sexual predilections or preferences vary. There is no objective way for the average citizen to determine what is "common" and what is not. For some people, touching another person's feet is a "common" part of "sexual relations." For others, it is not. At what point does a body part become "commonly associated with sexual relations?" More importantly, how is the ordinary person supposed to know this about any particular body part? Finally, the Majority concludes its announcement of its new standard with the perplexing addition of the description of an "intimate part" as something that it is "commonly associated with ... intimacy." This tautology clarifies nothing for the ordinary person seeking to understand what constitutes indecent assault.
The Majority's test offers the following answer to the question of whether a particular body part is an "intimate" one: it depends. It depends on an individual prosecutor. It depends on an individual judge. It depends on an individual jury. The defendant, and the public at large, will just have to wait and see whether a particular judge or jury has a sense that something is sufficiently common, or a sense of what activities sex encompasses, or of what should be deemed private. We will just leave to chance the question of what parts of the body the factfinder feels are able to be touched with or without consent. This is not law. Our Constitutions demand so much more. Due process requires that penal statutes provide clear answers to the ordinary person. The Majority's test misses this mark in every way. Rather than offer clarity, my colleagues require a person to ponder a litany of unanswerable questions. The incorporation into our law of such a faulty "standard" means that a criminal defendant is no more on notice as to what constitutes the crime of indecent assault than he or she was before the Majority attempted to "fix" the problem.
Not only does the Majority's interpretation of the term violate our Constitutions, but its elements are also so vague and so open to debate that the "test" readily can be manipulated to encompass a wide variety of body parts, if not all of them. As a jurisprudential tool, this simply does not work. It does not produce reliable results. If it did, and if the test was capable of accurately categorizing the relevant body parts into "other intimate parts," then we should be able to pass all of the non-sexual body parts through the test and find out which ones are intimate and which ones are not. We then could provide for potential defendants, the bench and bar, and the citizenry at large the complete list of body parts that the General Assembly neglected to provide. Because the Majority's test is so malleable, we cannot do so.
Take the mouth as an example. At times the mouth is sexual, at others it is not. In some circumstances and situations, the mouth is "personal and private," and can be "commonly associated with sexual relations or intimacy." But it can also be commonly associated with friendly greetings or familial love or eating a sandwich. A mother kisses her child on the mouth. In some places, people greet each other by using their mouth to kiss one another on both cheeks. How can a court, let alone a potential criminal defendant, know whether the mouth is a part that a person "ordinarily allows to be touched only by other individuals with whom the person has a close personal relationship" when the best answers to the question are "it depends" or "sometimes?" When those are the best answers emanating from a legal test, the test has failed its purpose. It is no test at all.
One more example drives the point home. Consider the top, center area of the thigh. The first question is whether that area is "personal or private." It depends. Many people wear shorts that expose that area to public view, and nearly all female swimsuits expose that area. For these individuals, the mid-thigh would not be "private." However, others dress more conservatively, preferring instead modest wear that covers the thigh. For such persons, the thigh is a "private" area of the body. The Majority's test does not teach us how to choose between two equally reasonable beliefs as to what is private. Even if we assume that the thigh overcomes the first aspect of the test, it faces similar problems with the "close personal relationship" element. What type of relationship should we consider? A marriage? A grandparent-granddaughter relationship? In the former, the thigh "ordinarily" may be touched in sexual and non-sexual ways. In the latter, one easily can envision the grandfather lovingly, but not sexually, patting his granddaughter on the thigh. However, in a clergy-parishioner relationship, which undoubtedly can be a "close personal relationship," there will be almost no physical contact, let alone thigh-touching. Of these three relationships, only one of them would involve touching the thigh for purposes of "sexual relations." Does that make it "commonly associated with sexual relations?" There are no clear answers.
In Justice Donohue's view, whether the body part typically is exposed for public view is the predominant factor in determining whether that part is "intimate." See Dissenting Op. at 318 (Donohue, J.). While I agree with Justice Donohue that this is relevant, it cannot be the only consideration. An "intimate" part cannot change from person to person, depending upon their sartorial choices.
Depending upon what perspective one chooses when asking these questions, the test can be used to classify nearly any non-sexual body part as "intimate." That result is untenable because it contradicts the statutory language that, as noted earlier, does not apply to all body parts, but instead creates three distinct categories of parts. We cannot create a test that would allow for that which the General Assembly unequivocally chose not to adopt.
But let us suspend disbelief for a moment and assume that the test is a constitutionally useable device. The Majority does not wrestle with the complexities that attend the questions that its test poses. Instead, the Majority announces, without analysis, that the neck is a "personal and private" body part. What makes the neck "personal and private"? The Majority does not say, aside from proclaiming that it is so "in ordinary social interaction." However, in "ordinary social interaction," the neck is almost always exposed for public view and is often adorned with jewelry. The Majority disregards these factors as "fashion-driven" features, immaterial to the notion of privacy. This dismissal hardly is persuasive given that the Majority does not even attempt to explain why the neck is "personal or private." Bald judicial decree does not suffice to establish social norms, particularly when we interpret a criminal statute. Nor can unsupported proclamations by judges serve to dismiss what, in fact, are reasonable factors in ascertaining what the ordinary person would consider to be private. That the neck is almost always seen by the public and is often decorated are, at a minimum, relevant considerations.
Maj. Op. at 314.
Id. at 315–16.
The Majority also declares that "an adult does not usually touch or kiss the neck of another adult outside of personal or intimate relationships." The Majority does not expound upon this conclusion, Nor does it explain how it knows what "usually" occurs in these relationships. The Majority does not tell us which relationships it is referring to, nor how it has decided that only those relationships are relevant for purposes of this analysis. Of course, this omission harkens back to the Majority's failure to define "close personal relationships" when it announced the test. Since we do not know what constitutes such relationships, how can we know how people in those relationships "usually" behave? The Majority expects us simply to take its word for it. I am unwilling to do so.
Id. at 314.
Finally, the Majority concludes that the neck is "routinely associated with sexual relations." To support this broad assumption, the Majority offers nothing but dictionary definitions of the term "necking." Needless to say by this point, the Majority does not explain what is required for something to become a "routine" part of "sexual relations." Nonetheless, the Majority performs a simple extrapolation, inferring from this existence of the definition that the neck is "routinely" associated with "sexual relations." Maybe it is. Maybe it is not. However, the mere appearance of the term in the Urban Dictionary or on Wikipedia does not prove that it is a "routine" part of "sexual relations."
Id.
Consistent with its generally antiquarian approach, the Majority relies heavily on the old-timey term "necking." See Ashley Astrew, "Hey, Boo! Do You Remember These 15 Old Dating Slang Words? " https://www.dictionary.com/e/old-dating-slang/ (published February 11, 2022) ("What people might call making out today used to be known as necking.... [O]ne of the earliest recorded uses of necking to mean ‘kissing’ actually occurred as early as 1825." (italics in original)).
While offering no substantive support for its pronouncements relating to the neck, the Majority swiftly dismisses Justice Donohue's query of whether the foot or toe is an "intimate" part of the body. The Majority seizes upon the term "foot fetish," and distinguishes that predilection from the neck, which it announces is "routinely associated with sexual relations." The Majority's attempt to draw this distinction is wholly unpersuasive. It offers no guidance for ascertaining what it means to be "commonly associated with sexual relations." Nor is use of the term "fetish" conclusive of anything. It is fair to say that incorporating feet into sexual activity is not rare, and that not everyone who does so has a "foot fetish." The only way to know whether the foot is an "intimate" part is to give it the same individual consideration that any other body part would warrant.
See id. at 314–15; see also Dissenting Op. at 319–20 (Donohue, J.).
Maj. Op. at 314. Notably, "foot fetish" is defined both on Wikipedia and in the Urban Dictionary, two sources that the Majority relies upon in concluding that "necking" means that the neck is an "intimate" part. See https://en.wikipedia.org/wiki/Foot_fetishism (last visited Aug. 16, 2022) & https://www.urbandictionary.com/define.php?term=foot% 0 fetish (last visited Aug. 16, 2022).
Without a reliable mechanism to determine what is common, I agree with Justice Donohue that there is no reliable way to "draw the line," and that this indisputably will lead to "uncertain application." I have labored to define the term "intimate" in a way that comports with the canons of statutory interpretation and due process, so as to eliminate this uncertainty. It is not possible to do so. No judicial formulation of the term "intimate" can provide the clarity required in a penal statute. Only the General Assembly can solve this dilemma, and it can do so only by either making it a crime to touch without permission "any" part of the body for the purposes of sexual gratification or by providing a clear list of the body parts that it believes to be "intimate."
Dissenting Op. at 319–20 (Donohue, J.).
That the term is undefinable does not mean that this case must go unresolved. Despite my disagreement as to the test the Majority creates, it is reasonable for the Majority to conclude that the neck is an "intimate" part. However, as Justice Donohue demonstrates, it is just as reasonable to conclude that it is not. In such circumstances, the rule of lenity applies. The rule requires penal provisions to be strictly construed. Thus, we are bound to hold that the neck is not an "intimate" part. Hence, I would vacate Gamby's indecent assault conviction.
I respectfully dissent.