Opinion
No. 98-2957.
Opinion filed September 17, 1999.
Appeal from the Circuit Court for Volusia County, R. Michael Hutcheson, Judge.
James B. Gibson, Public Defender, and Stephanie H. Park, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
This is an appeal from a conviction and sentence in a lewd and lascivious act on a child case. The statute reads "A person who . . . Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; . . ." commits a criminal act. § 800.04(1), Fla. Stat. (1997).
The point on appeal is whether the court erred in assessing guideline sentencing points for victim injury pursuant to section 921.0011(7)(b)2, Florida Statutes (1997).
If the conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentence points provided under § 921.0014 for sexual contact, regardless of whether there is evidence of any physical injury.
The evidence is that appellant kissed and fondled the breasts of a child who was under sixteen years old. He says thatReyes v. State, 709 So.2d 181 (Fla. 5th DCA 1998) controls and that, essentially, breast contact is not sexual contact. We disagree that Reyes applies and hold that the kissing and fondling of a female breast is sexual contact within the meaning of section 921.0011(7)(b)2. Reyes involved the crime of attempted sexual battery and the ruling there can be interpreted narrowly to say that it applies only to a sexual battery case.
There is nothing in the case law or the statutes which expressly defines sexual contact or answers the basic question here, to wit: whether a fondling or kissing of a female breast is sexual contact. There are relevant statutes which do include the breasts as "intimate parts" and thus are of importance to the law governing behavior. For instance section 39.01(63)(d), Florida Statutes (1997) governs child welfare proceedings and defines "sexual abuse of a child," in relevant part, as follows: "The intentional touching of the genitals or intimate parts,including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator." (Emphasis added). Similarly, Section 985.4045, Florida Statutes (1997) defines "sexual misconduct" as "fondling the genital area, groin, inner thighs, buttocks, or breasts of a person." In either event, the Legislature has clearly defined sexual conduct much more broadly than this court in Reyes. Notably, the acts which led to appellant's conviction would clearly fall within either definition.
Several related statutes indicate that the Legislature, by implication, considers the female breast a sexual organ. In criminalizing as "indecent exposure" the display of "sexual organs," the Legislature provided the following exception: "A mother's breast feeding of her baby does not under any circumstances violate this section." § 800.03, Fla. Stat. (1993). The legislature included the breast feeding exception elsewhere in Florida's criminal code, thereby implying that the breast is a sexual organ when used for purposes other than breast feeding. See § 800.02, Fla. Stat. (1993) (criminalizing unnatural and lascivious acts); § 800.04 ("Lewd, lascivious, or indecent assault or act upon or in presence of child"); § 847.001 ("A mother's breast feeding of her baby is not under any circumstances `obscene'" for purposes of statute criminalizing the dissemination of obscene literature). The fact that the legislature limited the exclusion to breast feeding implies that the exposure or manipulation of the female breast for other than nutritive purposes is sexual or indecent. Applying the maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another), it can be concluded that, generally, the Legislature considers breast feeding an appropriate public act, while the gratuitous exposure or handling of female breasts constitutes inappropriate public behavior. The impropriety in the latter case stems from the fact that the female breast is, as a matter of common sense, a sexual organ (as evidenced by the fact that women in most societies clothe their upper bodies in public).
From other states, research reveals definitions, either in case law or statutes, to include inappropriate contact with the female breast to be violative of the law. See, e.g.,New York v. Foley, 1999 N.Y. Slip Op. 05878, 1999 WL 399439 at *6 (N.Y. App. Div. 1999) (Statute defines "sexual conduct" as "physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast."); Wisconsin v. Dodson, 580 N.W.2d 181, 189 (Wis. 1998) (noting that state law defines "intimate parts," for purposes of statute criminalizing sexual contact, as the "breast, buttock, anus, groin, scrotum, penis, vagina, or pubic mound of a human being"); Ohio v. Riffle, 674 N.E.2d 1214, 1217 (Ohio Ct. App. 1996) (noting that state law defines "sexual contact" as "any touching of an erogenous zone of another person, including a female's breast");Minnesota v. Oanes, 543 N.W.2d 658, 661 (Minn. Ct. App. 1996) ("Because the legislature has not defined `intimate parts' in the prostitution statutes, we must construe the words according to common usage. A woman's breasts are commonly considered a sexual and intimate part of her body . . . The legislature enacted the current criminal sexual conduct statutes before the present prostitution sections, and grouped them under the common heading "Sex Crimes," thus indicating sex crimes, including prostitution, encompass acts of touching another person's breasts under certain conditions.") (citations omitted); Strickland v. Arkansas, 909 S.W.2d 318, 321 (Ark. 1995) (affirming conviction for sexual abuse where evidence indicated that defendant fondled the victim's breast in violation of statutedefining sexual contact as touching "the breast of a female"); New Mexico v. Williams, 730 P.2d 1196, 1199 (N.M. Ct. App. 1986) (Defendant properly convicted and separately sentenced for criminal sexual contact where facts showed that he touched victim's breast and statute defined protected "intimate parts" to include female breast).
Because the kissing and fondling of the child's breasts is deemed to be sexual contact it was appropriate for the circuit judge to assess points for that and no error occurred.
AFFIRMED.
SHARP, W., J., concurs.
PETERSON, J., dissents with opinion.
Robert L. Kitts was found guilty by a jury of committing a lewd and lascivious act upon a female child under 16 years of age. The facts indicate that the act consisted of kissing and fondling the victim's breasts. I find no fault with the conviction, but would vacate the sentence and remand for resentencing because 40 points were imposed on his scoresheet for victim injury for sexual contact, pursuant to section 921.0011(7), Florida Statutes (1997). The 40 points should not have been scored as explained in Reyes v. State, 709 So.2d 181 (Fla. 5th DCA 1998).
Additionally, the majority has unwittingly expanded the meaning of sexual battery under section 794.011, Florida Statutes, by holding that the female breast is a sexual organ. Section 794.011(1)(h) provides: "sexual battery" means oral, anal or vaginal penetration by, or union with the sexual organ of another. Union has been defined as the simple act of touching. Richards v. State, 1999 WL 445705 (Fla. 2d DCA 1999) (sexual battery statute prohibits the touching of another's sexual organ). Thus, the contact between the mouth of one person and the female breast of another person without consent has been elevated by the majority's opinion to a sexual battery. I have not found any reported cases that expand the definition of sexual battery to include the interpretation the majority gives it today.