Leap Day 2012 provided an interesting case from the Indiana Court of Appeals. In Perry v. State, the Court of Appeals determined that Perry's actions did not constitute Sexual Battery and remanded the case for the trial court to enter a conviction to Battery, a Class B Misdemeanor.
The facts, while distrubing, didn't stop the Court from overturning this conviction. The pertinent facts are as follows:
Perry invited his son's teenage girlfriend and two of her teenage friends over to his house. After they arrived, he served them alcohol until they were intoxicated. The son's girlfriend, N.A., had about eight to ten shots of "dark liquor." The teenage girls then left Perry's house only to return around 2 a.m. N.A. went to her boyfriend's bedroom to sleep (the boyfriend wasnt' there). N.A. woke up briefly and Perry was tapping on her foot to see if she was awake.
N.A. later woke up and found that Perry had his hand in her underwear and his fingers in her vagina. He then removed his fingers and rubbed his penis against her bottom. N.A. was scared and "pretended" to wake up and check her telephone for messages and left the house.
The Court determined that these facts could not lead to a conviction for Sexual Battery, a Class D Felony. Indiana Code 35-42-4-8(a) defines Sexual Battery and requires that the victim of the touching be "compelled to submit to the touching by force or the imminent threat of force" or the victim is "so mentally disabled or deficieint that consent to the touching cannot be given." Here, the Court determined that the fear experienced by the victim must PRECEDE the touching. N.A. awoke and found out she was being touched but was not compelled by force or the threat of imminent force. The Court also found, under prior cases, that sleeping does not qualify as being mentally disabled or deficient.