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State v. R.P

The Supreme Court of Washington. En Banc
Nov 24, 1993
122 Wn. 2d 735 (Wash. 1993)

Summary

holding that there was insufficient evidence of sexual contact to sustain conviction of indecent liberties when offender left a "hickey" on victim's neck area

Summary of this case from State v. Raethke

Opinion

No. 60322-7.

November 24, 1993.

ANDERSEN, C.J., and DOLLIVER and JOHNSON, JJ., dissent in part by separate opinion.

Nature of Action: Prosecution of a juvenile for two counts of indecent liberties.

Superior Court: The Superior Court for Island County, No. 91-8-00043-0, Alan R. Hancock, J., on July 25, 1991, entered an adjudication of guilty of both counts. Court of Appeals: The court affirmed the judgment at 67 Wn. App. 663, holding that the juvenile's kissing his victim on the neck constituted indecent liberties under the circumstances.

Supreme Court: Holding that there was insufficient evidence of sexual contact to sustain one of the counts, the court affirms the judgment on one count and reverses the judgment on the other count.

R.P., pro se, and Elizabeth Govaerts of Washington Appellate Defender Association, for petitioner.

William H. Hawkins, Prosecuting Attorney, and Leslie Seffern, Deputy, for respondent.


R.P. was charged and convicted in juvenile court on two counts of indecent liberties arising from two separate incidents involving a female junior high school classmate. His petition for review relates only to the first count, and argues that there was insufficient evidence that R.P. engaged in sexual contact. This count arose from an incident on or about March 26, 1991, in which R.P. allegedly picked up, hugged and kissed his classmate after track practice. During the course of events, he eventually placed what is commonly referred to as a "hickey" or "passion mark" on her right neck area.

We affirm the Court of Appeals decision in all respects but one. After examining the record and the facts of this case, we find that there was insufficient evidence of sexual contact to sustain count 1 (indecent liberties). We reverse R.P.'s conviction on that count.


In reviewing this record, as we must, in light most favorable to the prosecution, I am unable to conclude that there was insufficient evidence to find each element of indecent liberties. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). For that reason I dissent.

The trial court here found that this second sexual encounter with a young girl occurred after track practice at a junior high school. The victim and the defendant were waiting for their respective rides when the defendant picked the girl up against her will and placed her down in an area where he hugged and kissed her and eventually gave her a "hickey" on her neck. The defendant was restraining the girl during this time. The hickey was visible for more than 1 week.

A person is guilty of the crime of indecent liberties

when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion; . . .

RCW 9A.44.100(1)(a).

"Sexual contact" is defined as

any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.

RCW 9A.44.010(2).

The defendant here challenged the trial judge's determination that defendant's lips sucking upon the victim's neck so as to result in a hickey constituted sexual contact.

The determination of which anatomical parts other than genitalia and breasts are "intimate" is a question to be resolved by the trier of fact. In re Adams, 24 Wn. App. 517, 520, 601 P.2d 995 (1979). The court in Adams held that hips are a sufficiently intimate part of the anatomy that nonconsensual touching of them is prohibited — particularly if the touching is incidental to other activities which are intended to promote sexual gratification of the actor. Adams, 24 Wn. App. at 520.

I agree with the trial court in this case that defendant's act of holding the victim down against her will, kissing her, hugging her and then sucking a hickey onto her neck was sexual contact.

For that reason, I dissent.

DOLLIVER and JOHNSON, JJ., concur with ANDERSEN, C.J.


Summaries of

State v. R.P

The Supreme Court of Washington. En Banc
Nov 24, 1993
122 Wn. 2d 735 (Wash. 1993)

holding that there was insufficient evidence of sexual contact to sustain conviction of indecent liberties when offender left a "hickey" on victim's neck area

Summary of this case from State v. Raethke

reversing State v. R.P., 67 Wn. App. 663, 838 P.2d 701

Summary of this case from State v. Perez

In R.P., the Washington Supreme Court reversed the defendant's conviction for indecent liberties, which also requires proof of sexual contact as defined in RCW 9A.44.010(2), because there was insufficient evidence of sexual contact.

Summary of this case from State v. Streiff
Case details for

State v. R.P

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. R.P., Petitioner

Court:The Supreme Court of Washington. En Banc

Date published: Nov 24, 1993

Citations

122 Wn. 2d 735 (Wash. 1993)
122 Wash. 2d 735
862 P.2d 127

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