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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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