Thursday, June 27, 2019
The Massachusetts Supreme Judicial Court affirmed a conviction for indecent assault and battery in an unusual fact context
While the defendant was naked, he kissed his girlfriend's sister on the mouth, without insertion or attempted insertion of the tongue, while she was sleeping and without her consent. The question is whether such circumstances present sufficient evidence for a conviction of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H. We conclude that they do and affirm the judgment.
The victim had fallen asleep on a couch while fully clothed
At some point in the night, the victim awoke to the defendant kissing her on the lips. The defendant was naked, kneeling next to the couch, and hovering over the victim. The victim stood up and shouted, "What are you doing? Why are you doing this?" The defendant replied, "I couldn't help myself. I didn't know what I was doing."
A kiss on the hand may be quite continental; on the lips, quite illegal
Our case law recognizes the mouth is an "intimate part of the body," as "the vast majority of people are very discriminating in who they allow to touch . . . this bodily orifice." Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625 (2004), quoting People v. Rivera, 138 Misc. 2d 570, 571 (N.Y. Sup. Ct. 1988). See Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562 (2018). Under certain circumstances, touching of the mouth, even without insertion of the tongue, may be considered an indecent act. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307 (2005). We conclude that such circumstances exist here.
The victim awoke to the defendant hovering over her, naked, and kissing her on the mouth. The victim and the defendant were not in a dating relationship; the defendant was in a relationship with the victim's older sister. See Colon, 93 Mass. App. Ct. at 563 (whether there is existing relationship between victim and defendant should be considered when assessing indecent conduct). The defendant acted surreptitiously, as he acted in the night while the victim and the other occupants of the apartment were asleep, and the victim was unable to consent.
We need not get tangled in whether a fully clothed prince may kiss Sleeping Beauty or revive Snow White. At least while one is naked, when one is not in a preexisting intimate relationship, kissing a sleeping woman, a spellbound princess, or otherwise, is not consistent with our "contemporary moral values." Mosby, 30 Mass. App. Ct. at 184.