Kissing a sleeping victim doesn't constitute sexual battery

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A victim being asleep isn’t equivalent to a mental disability or deficiency for purposes of the sexual battery statute, the Indiana Court of Appeals held Wednesday.

Ronald Ball was convicted of Class D felony sexual battery for kissing and licking Shaun Dozier’s face while she was asleep. Once she awoke, she asked him to stop, and he left her apartment where he had been hanging out. Dozier uses a wheelchair and takes pain medication that can affect her memory, but the state never argued this made her mentally disabled or deficient for purposes of the sexual battery statute.

At issue in the case is whether Dozier’s being asleep at the time of the battery rendered her “so mentally disabled or deficient that consent to the touching cannot be given” requiring Ball to be convicted of Class D felony sexual battery.

No case has considered this issue, so the Court of Appeals turned to the rape and criminal deviate conduct statutes, which also include identical language – the force or threat of force and mental disability or deficiency prongs – that are found in the sexual battery statute.  

But those crimes also include a third prong not in the sexual battery statute: a person may be convicted under the rape or criminal deviate conduct statutes if the victim is unaware the conduct is occurring. Under those statutes, being asleep only has supported a conviction charged under the unawareness prong, not the mentally disabled or deficient prong, wrote Chief Judge Margret Robb in Roland Ball v. State of Indiana, No. 06A01-1007-CR-426.

“The plain meaning of ‘mentally disabled or deficient,’ as well as the facts of the cases in which a victim has been found to be mentally disabled or deficient, would exclude a temporary, natural state such as sleep from inclusion in that phrase. Moreover, the legislature did not include in the sexual battery statute the ‘unawareness’ provision included in other sex offense statutes, and we believe it would be disharmonious to construe ‘mentally disabled or deficient’ to include sleep for purposes of the sexual battery statute when the same phrase does not include sleep for purposes of the other sexual offense statutes,” wrote the chief judge. “We therefore conclude that being asleep does not constitute being mentally disabled or deficient.”

The state failed to prove the element of mental disability or deficiency beyond a reasonable doubt, so the judges reversed Ball’s Class D felony sexual battery conviction. However, the evidence supports entering a judgment against him for Class B misdemeanor battery.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.