ILNews

Kissing a sleeping victim doesn't constitute sexual battery

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Contact Lea Shelemey attorney in porter county Indiana. She just helped us win our case...she is awesome...

  2. We won!!!! It was a long expensive battle but we did it. I just wanted people to know it is possible. And if someone can point me I. The right direction to help change the way the courts look as grandparents as only grandparents. The courts assume the parent does what is in the best interest of the child...and the court is wrong. A lot of the time it is spite and vindictiveness that separates grandparents and grandchildren. It should not have been this long and hard and expensive...Something needs to change...

  3. Typo on # of Indiana counties

  4. The Supreme Court is very proud that they are Giving a billion dollar public company from Texas who owns Odyssey a statewide monopoly which consultants have said is not unnecessary but worse they have already cost Hoosiers well over $100 MILLION, costing tens of millions every year and Odyssey is still not connected statewide which is in violation of state law. The Supreme Court is using taxpayer money and Odyssey to compete against a Hoosier company who has the only system in Indiana that is connected statewide and still has 40 of the 82 counties despite the massive spending and unnecessary attacks

  5. Here's a recent resource regarding steps that should be taken for removal from the IN sex offender registry. I haven't found anything as comprehensive as of yet. Hopefully this is helpful - http://www.chjrlaw.com/removal-indiana-sex-offender-registry/

ADVERTISEMENT