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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 work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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