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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was looking through some of your blog posts on this internet site and I conceive this web site is rattling informative ! Keep on posting . dfkcfdkdgbekdffe

  2. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  4. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

  5. Once again Indiana has not only shown what little respect it has for animals, but how little respect it has for the welfare of the citizens of the state. Dumping manure in a pond will most certainly pollute the environment and ground water. Who thought of this spiffy plan? No doubt the livestock industry. So all the citizens of Indiana have to suffer pollution for the gain of a few livestock producers who are only concerned about their own profits at the expense of everyone else who lives in this State. Shame on the Environmental Rules Board!

ADVERTISEMENT