People v. Guarnan, 22 N.Y.3d 678 (2014)
In New York, “forcibly touches” under Penal Law § 130.52 encompasses any intentional bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts, when done with the requisite criminal intent.
Summary
Defendant was arrested for rubbing his exposed penis against another man’s buttocks in a subway station. He was charged with forcible touching, among other offenses. Defendant argued that the information was jurisdictionally defective because “rubbing” does not constitute the requisite “forcible touching” under Penal Law § 130.52. The Court of Appeals held that the act of rubbing, when accompanied by the intent to degrade or abuse, or for the purpose of gratifying the actor’s sexual desire, and involving the application of some pressure, does constitute forcible touching. The court affirmed the Appellate Term’s order upholding the conviction.
Facts
A police officer observed Luis Guarnan rubbing his exposed penis against another man’s buttocks in a subway station. The victim confirmed he did not consent to the contact. The accusatory instrument stated that Guarnan intentionally and for no legitimate purpose, forcibly touched the sexual and other intimate parts of the victim for the purpose of degrading and abusing him, and for the purpose of gratifying Guarnan’s sexual desire. The victim swore to his lack of consent in a supporting deposition.
Procedural History
The defendant was charged with third-degree sexual abuse, forcible touching, and public lewdness. The defendant moved to suppress identification evidence and statements, which was denied. He pleaded guilty to forcible touching. The Appellate Term affirmed the judgment, finding the information sufficient. The New York Court of Appeals granted leave to appeal.
Issue(s)
Whether the factual allegation that the defendant “rubbed” his groin and exposed penis against the victim’s buttocks establishes the kind or level of force required by Penal Law § 130.52 to constitute forcible touching.
Holding
Yes, because, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52.
Court’s Reasoning
The Court reasoned that the factual allegations in a misdemeanor complaint must provide “reasonable cause” to believe the defendant committed the charged offense. An information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof.” The Court stated that the examples in the statute, “squeezing, grabbing or pinching,” signal a low threshold for the forcible component of the crime. The Court found that the legislature intended a broad construction of “forcibly touches”, noting the crime was enacted as part of the Sexual Assault Reform Act of 2000, in response to public sexual attacks. The court rejected the argument that forcibly touching should be limited to contact that compresses and is painful or physically discomforting.
The court stated that to be guilty of third-degree sexual abuse, the actor must subject another person to sexual contact without the latter’s consent, for the purpose of gratifying sexual desire of either party. Because third-degree sexual abuse criminalizes nonconsensual sexual touching for purposes of either party’s sexual gratification, the People are not required to plead or prove whether the touching is for the actor’s or the recipient’s sexual gratification.
The People argued that “force” is commonly defined as “strength or energy exerted or brought to bear.” “Rub” means to move along the surface of a body with pressure, or to subject to the action of something moving especially back and forth with pressure and friction. “Since the use of ‘pressure’ or ‘friction’ obviously brings strength or energy to bear, the act of ‘rubbing’ qualifies as a forcible touch.”
The court agreed with the People and concluded that “forcibly touches” is not restricted in the way defendant advocates, and the allegation in the information met the test.
The legislative history of the crime of forcible touching indicates the legislature meant for “forcibly touches” to cover contact beyond only that which compresses and is painful or physically discomforting.