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Forcible Touching: You Meet The Most Interesting People On The Subway


 best appeals conviction sexual assault forcible touching

People v. Guaman

2014 NY Slip Op 01264

New York Court Of Appeals

Decided on: February 25, 2014

Summary: Defendant Luis Guaman rubbed his exposed penis against another man’s buttocks inside a subway station. A police officer observed Defendant and arrested him. Defendant was charged with third degree-sexual abuse under Penal Law § 130.55 for forcible touching, and Penal Law §245.00 for sexual desire. The victim never consented to being sexually assaulted and Defendant subsequently pleaded guilty. Defendant appealed arguing that the information was jurisdictionally defective, stating that he “rubbed” his groin and exposed his penis against the victim’s intimate parts and that it did not fulfill the “forcible” component of the crime.

 The Appellate Division stated that the information’s factual allegations were sufficient to establish reasonable cause to believe that defendant committed the crime of forcible touching. The Court Of Appeals held that when done with the relevant ‘mens rea’, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The Court Of Appeals affirmed.

See Also:  Peeping Toms And Your Reasonable Expectation Of Privacy

Issue:  Whether the term “rubbing” constitutes “forcible touching” under Penal Law §250.45 third-degree sexual assault.

Holding: Yes. The Court Of Appeals held that “Force” is defined as ‘strength or energy exerted or brought to bear.’ “Rub” is defined as ‘ to move along the surface of the body with pressure.’ Since the use of pressure or friction obviously brings strength or energy to bear, the act of rubbing qualifies as forcible touch.

Facts: Inside a subway station, Defendant Luis Guaman rubbed his exposed penis against another man’s buttocks. A police officer observed Defendant and arrested him. The victim told police that he did not consent to Defendant’s sexual behavior. Defendant was charged with third degree-sexual abuse, Penal Law § 130.55 forcible touching, and, public lewdness, Penal Law §245.00. A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.

Defendant pleaded guilty to forcible touching in full satisfaction of the information. Defendant appealed arguing that the information was jurisdictionally defective, stating that he “rubbed” his groin and exposed penis against the victim’s intimate parts did not fulfill the forcible component of the crime. The Appellate Division concluded that the information’s factual allegations were sufficient for pleading purposes to establish reasonable cause to believe that defendant committed the crime of forcible touching. The Court Of Appeals held that when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The Court Of Appeals affirmed.

Legal Analysis: The Court Of Appeals held that “forcibly touches “is no different than “any touching”. The term “force” is defined as ’strength or energy exerted or brought to bear’. The word “rub” is ‘to move along the surface of a body with pressure.’  Since the use of pressure or friction brings strength or energy to bear, the act of rubbing qualifies as a forcible touch. The Defendant rubbed his groin and exposed penis against the victim’s buttocks without consent and caused the victim physical discomfort.

The crime of forcible touching requires the application of some level of pressure to the victim’s sexual or other intimate parts. The Court Of Appeals held that when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The Court Of Appeals affirmed.