March 31, 2005.
Appeal from the Iowa District Court for Scott County, James E. Kelley (trial) and David E. Schoenthaler (motion to suppress), Judges.
John Michael Bolsinger appeals the judgment and sentence entered upon his convictions for three counts of sex abuse in the third degree, three counts of sexual exploitation by counselor or therapist, and three counts of sexual misconduct with offenders or juveniles. AFFIRMED IN PART AND AFFIRMED BY OPERATION OF LAW IN PART.
Murray W. Bell, of Murray W. Bell, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ., but decided en banc. Huitink, J., takes no part.
John Michael Bolsinger appeals the judgment and sentence entered upon his convictions for three counts of sex abuse in the third degree in violation of Iowa Code section 709.4(1) (2001), three counts of sexual exploitation by a counselor or therapist in violation of section 709.15(2), and three counts of sexual misconduct with offenders or juveniles in violation of section 709.16(2). Specifically, Bolsinger contends that evidence discovered during a search of his home should have been suppressed, that the jury was improperly instructed, and that the evidence supporting his convictions was insufficient.
I. Background Facts and Proceedings
From February of 2000 to September of 2001 Bolsinger was the program supervisor of a state licensed, highly structured "boot camp" for delinquent boys at the Wittenmyer Youth Center, referred to as the S.U.M.M.I.T. Program (Wittenmyer). During August of 2001 a child protective investigator from the Iowa Department of Human Services (DHS) conducted an investigation into allegations of sexual abuse by Bolsinger at Wittenmyer. As a result of this investigation DHS learned Bolsinger approached boys at the boot camp, took them, individually, into a private room for a purported "examination," then proceeded to touch the boys' testicles or penis for the ostensible purpose of checking for bruises, scratches, hernias, or testicular cancer.
Armed with these facts, the Davenport police officers obtained a search warrant authorizing the search of the Bolsinger residence. During the course of this search, police seized Bolsinger's home computer. Upon examination by law enforcement officials, it was discovered that the computer's hard drive contained hundreds of explicit stories involving unidentified teenage boys engaging in sex acts with each other and older men. Prior to trial, Bolsinger moved to suppress the seized materials. This motion was denied. Bolsinger then sought discretionary review by our supreme court, which was also denied.
A jury trial commenced on March 18, 2003. Seventeen boys testified at his trial, fourteen of whom testified that during the summer of 2001, Bolsinger touched either the boys' testicles or penis. At trial, Bolsinger admitted to touching the boys, but claimed it was for medical purposes and he had obtained each boy's consent for the touching that occurred. The jury returned verdicts of guilty on all counts. Bolsinger appeals.
A. The Warrant 1. Probable Cause
"A warrant may only be issued upon a finding of probable cause." U.S. Const. amend IV; Iowa Const. art. 1, § 8; Iowa Code § 808.3 (2003). Our review is de novo as Bolsinger's challenges are on constitutional grounds. State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004). However, because reviewing courts are obliged to give great deference to a magistrate's finding of probable cause, we do not make an independent determination of probable cause, but only determine whether the issuing judge had a substantial basis for concluding that probable cause existed. See State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). An issuing judge or magistrate must determine whether a "nexus between criminal activity, the things to be seized and the place to be searched" has been reasonably shown. See Davis, 679 N.W.2d at 651 (citing Green, 540 N.W.2d at 655). In making this determination, reasonable, common-sense inferences drawn from the information presented may be relied upon. State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000).
With these principles in mind, we now turn to the record before us. Attached to the warrant application was an affidavit of Detective William Thomas. This affidavit provided the following information:
The Department of Human Services contacted the Davenport Police Department on 08/22/2001 and provided information concerning [an] ongoing investigation at Wittenmyer Youth Center (Summitt Cottage) 2800 Eastern Avenue. DHS advised that John Bolsinger, director for Summitt Cottage had allegedly sexually abused seventeen residents of the Summitt Program between June 6th 2001 to present.
DHS investigators Kevin Schimtz and Shannon Anderson conducted interviews of twenty-one residents at the Summitt Program. Seventeen of the twenty-one residents that were interviewed stated that Instructor Bolsinger had conducted physical examinations of them. These physical examinations took place at various locations on the campus of Wittenmyer Youth Center. According to all seventeen residents, Instructor Bolsinger would conduct these examinations in a one on one setting, with no other staff or resident present to witness the exam. Instructor Bolsinger instructed the residents to strip naked. Instructor Bolsinger would then claim to be checking the resident for hernias. Instructor Bolsinger would then hold their testicles and tell them to cough. Some residents also reported that Instructor Bolsinger had touched them around the anus with his fingers.
Instructor Bolsinger is required to keep documentation of his activities at Wittenmyer Youth Center (Summitt Program). Mr. Bolsinger may keep documentation from his activities at Wittenmyer at his home. Interviews with staff and residents reveal that Bolsinger has transported resident[s] off the Wittenmyer Campus. (Emphasis added.)
The district court, in its ruling on Bolsinger's motion to suppress, drew the following inferences from this information.
The primary target of the search warrant was work-related products that the defendant may have kept at home. Managers often take work home with them to complete in the evenings or on the weekends. The fact that computers are both at home and at work often facilitates this. Defendant's role as Director gave him the opportunity to take work-related information home with him and to conceal any of that information that would be potentially incriminating.
Bolsinger argues that the application lacks probable cause because "[i]t is hardly arguable by the State that the defendant would include in [the documentation sought] information that would suggest he had sexually abused any minors." What Bolsinger fails to recognize, however, is the district court was informed that Bolsinger was required to document all his activities at the Center, and DHS had conducted an investigation of Bolsinger's "physical examinations" of seventeen boys. From these facts, the following inferences can be drawn. First, if no documentation of Bolsinger's "examination" activities was found at his home, such documentation probably did not exist as the DHS investigation at Wittenmyer had not produced any documentation. Further, because he was required to document all activities with the boys at the Center, the lack of any documentation of these examinations would indicate that Bolsinger was not authorized to touch the boys in such a manner and therefore was attempting to conceal these examinations.
Thus, the absence of any documentation of Bolsinger's examination exploits with the youths at Wittenmyer could implicate him in the crimes for which he was eventually charged. Therefore, the information provided to the warrant issuing judge could allow a reasonably prudent person to infer that the search of Bolsinger's home would reveal either documentation of Bolsinger's examination activities, providing direct evidence of a crime, or the lack of the required documentation, which could be circumstantial evidence of a crime. Consequently, we conclude there was a substantial basis for the issuing judge's conclusion that probable cause existed for the warrant to issue.
Bolsinger's final argument against a finding of probable cause for the warrant is that the final statement in Detective Thomas' warrant application, while technically a true statement, is nonetheless a false affidavit statement because it intentionally caused the issuing judge to believe certain facts, which the affiant knew were not true. We previously determined, without any consideration of this final sentence in Detective Thomas' affidavit, that probable cause existed to search Bolsinger's home because a reasonably prudent person would believe evidence of a crime could be found there. Consequently, we need not decide this issue. See State v. Groff, 323 N.W.2d 204, 206 (Iowa 1982) (adopting the analysis of the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978) that "where . . . affiant made a false statement in a search warrant . . . the Fourth Amendment requires the statement be deleted from the affidavit and the remaining contents be scrutinized to determine whether probable cause appears.").
This final sentence was handwritten and initialed by the prosecutor. "Interviews with staff and residents reveal that Bolsinger has transported resident[s] off the Wittenmyer Campus."
2. Scope of the Warrant
Bolsinger next argues that the description of the items to be seized was not sufficiently particular. The Fourth Amendment to the Constitution of the United States provides that no warrants shall be issued unless "supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." U.S. Const. Amend IV.; State v. Malloy, 409 N.W.2d 707, 709 (Iowa Ct.App. 1987). The United States Supreme Court has recognized that a "major objective of this amendment is to prohibit the use of a `general' warrant and avoid `a general, exploratory rummaging in a person's belongings.'" Malloy, 409 N.W.2d at 709 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038-39, 20 L. Ed. 2d 564, 583 (1971).
The first of the five categories of items to be seized described in the warrant was "indicia of occupancy, residency, rental and/or ownership of the premises . . . including but not limited to, utility and telephone bills canceled envelopes, rental, purchase or lease agreeme[nts] and keys." Bolsinger argues that the State already knew he lived at the residence so that this category of items was merely listed to permit the State to go on a "fishing expedition through the defendant's personal and private papers." However, the warrant clearly limits the search and seizure to those items that bear the name or address of Bolsinger. Consequently, the description of this category of items to be seized was not overbroad as it was "sufficiently definite for the executing officers `to reasonably ascertain and identify . . . the things to be seized." Leto, 305 N.W.2d 488 (citation omitted).
The next category of items to be seized listed on the search warrant was, "photographs, negatives, magazines, books, computers, computer discs, zipdrives, all storage devices, internal and external cable, peripheral equipment, [a]ny and all CDs and discs." Bolsinger argues this list of items constitutes nothing more than a "general warrant giving the searchers license to rummage through virtually every photograph, book, magazine or computer. . . ." We agree that this category of items to be seized lists only general classes of items. However, we note that our supreme court has recognized that the degree of specificity required depends on the type of goods to be seized: Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the general class of items will suffice because less particularity can be reasonable expected than for goods (such as those stolen) whose exact identity is already known at the time of issuance.
Leto, 305 N.W.2d at 487 (quoting U.S. v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980)); State v. Munz, 382 N.W.2d 693, 699 (Iowa Ct.App. 1985). Thus, the decree of particularity required must be made on a "case-by case basis with consideration being given to the nature of the crime involved and the type of evidence being sought." State v. Woodcock, 407 N.W.2d 603, 606 (Iowa 1987) (citing State v. Leto, 305 N.W.2d 482, 487 (Iowa 1981)).
In this case the crime involved was sexual abuse of minors and the evidence being sought was work documentation or other evidence of these illicit acts. This was not a case where the exact identity of the evidence sought was known. We conclude the general categorical listing of potential forms of evidence of this crime was reasonable under the circumstances. Furthermore, the list of categories was "sufficiently definite for the executing officers to reasonably ascertain and identify . . . the things to be seized." State v. Leto, 305 N.W.2d 482, 488 (Iowa 1981).
In so concluding, we note that some of the information contained in the computer seized, presumptively, did not relate to the offenses being investigated. However, we conclude that "[b]ecause of the technical difficulties of conducting a computer search in a suspect's home, the seizure of the computers, including their content, was reasonable . . . to allow police to locate the offending files." Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); see also, United States v. Upham, 168 F.3d 532, 526 (1st Cir. 1999) (upholding warrant issued for "[a]ny and all computer software and hardware, . . . computer disks, disk drives . . ." in a child pornography investigation); United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (rejecting a challenge to the seizure of documents and computer files that were unrelated to the offenses being investigated because it would have been unreasonable to require the police, at the time of the computer seizure in the defendant's office, to separate out those items that were outside the warrant); United States v. Evans, 994 F.Supp. 1340, 1343 (D. Kan. 1998) (determining that a warrant authorizing a search of all forms of computer hardware, software and memory devices "valid because it described the items to be seized as specifically as possible under the circumstances").
The third and fourth categories of items to be seized listed in the search warrant are "records, documents, files and any information pertaining to Wittenmyer Youth Center, Summit Cottage, the Summit Program, and Family Resources" and "[a]ny records, documents, etc that would show involvement in youth organizations." Bolsinger argues these categories are overbroad because even though these items may be at his home, there is no showing that they would be related to or evidence of criminal activity. We disagree. This list of items does list generic things such as "documents" and "information." However, the search for these generic items is limited to only those that pertain to Wittenmyer or other youth centers. As we previously stated, the affidavit supporting the search warrant clearly indicates that sexual abuse took place at Wittenmyer, that Bolsinger was the perpetrator, and that he was required to document all of his actions at Wittenmyer Youth Center. Thus, we conclude the third and fourth categories allowed the search for and seizure of only those items within large generic categories that related to the crime being investigated. These categories were as specific as the nature of the crime under investigation permitted. See State v. Todd, 468 N.W.2d 462, 467 (Iowa 1991) (stating that "[w]hen a warrant affiant has probable cause but cannot give an exact description of the materials to be seized, a warrant will generally be upheld if the description is as specific as the circumstances and the nature of the activity under investigation permit.").
Bolsinger argues that even though there are only five numbered categories of property to be seized, the following statement subsequent to this list of five numbered categories constitutes a sixth category, "To include any and all evidence that is relevant to the investigation and prosecution of the crime of sexual abuse." We do not read this statement as creating another category but instead view it as qualifying the previous five categories by requiring that evidence seized within the five lists of items be "relevant to the investigation and prosecution of the crime of sexual abuse." Thus, this statement only makes the previously discussed categories more specific. See Andresen v. Maryland, 427 U.S. 463, 480-81, 96 S. Ct. 2737, 2748-49, 49 L. Ed. 2d 627, 642-43 (1976) (finding that the phrase "together with other fruits, instrumentalities and evidence of crime at this (time) unknown" added to the end of a list of particular items to be seized did not constitute a new category but instead related back to the listed items and authorized the seizure of evidence or "fruits" only if they were relevant to the crime at issue). Moreover, even if this statement did create a new category of items to be seized, similar listings of items to be seized has been allowed. See State v. Hamilton, 236 N.W.2d 325, 328 (Iowa 1976) (holding "any and all other controlled substances" was not so broad as to create an impermissible general warrant); Malloy, 409 N.W.2d at 710 (holding "evidence of instrumentalities which would substantiate abuse or neglect" was not so broad or vague as to clothe the executing officers with interdicted discretion).
We do not address the fifth category of items to be seized "a white 1999 Oldsmobile . . . registered to John Bolsinger" as Bolsinger admits that no items were seized from this vehicle.
3. Scope of the Search
Bolsinger's final complaint is that the search of his computer hard drive went beyond the scope of the warrant. A search must be confined to the terms and limitations of the warrant authorizing it. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 n. 7, 91 S. Ct. 1999, 1004 n. 7, 29 L. Ed. 2d 619 (1971).
The district court, in ruling on this issue in its "Ruling and Order on Defendant's Motion to Suppress" stated, The actual search of the computer was not overbroad. There was testimony by the officer that did the search that he uses a special software system that enables him to do keyword searches of the entire system. That software then pulls up all fields that have hits of that keyword in them and allows the officer to view a small section of the file. Several words before and after the keyword come up to allow the officer to see the context in which the word is being used. From there the officer is able to make a determination whether to open the file or not. In addition to seeing the context of the word, the software tells him what type of computer file it is in. This too gives him information in order to determine whether that file is within the bounds of the search warrant. The officer did not look at everything on the hard drive. Rather, the search was narrow in focus due to the utilization of the software system and the professional judgment of the officer after viewing the word or words in context.
With regard to the search and seizure of documents, the United States Supreme Court has stated that in the course of a valid search "some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized." Andresen, 427 U.S. at 482, n. 11, 96 S. Ct. at 2749, 49 L. Ed. 2d at 43 (1976). Moreover, although care must be taken to minimize unwarranted intrusions upon privacy, officers, during the course of a records search, should be permitted to examine many papers because "few people keep documents of their criminal transactions in a folder marked `crime records.'" United States v. Riley, 906 F.2d 841, 845 (2nd Cir. 1990).
We see no reason to favor those who are capable of "storing their records on computer over those who keep hard copies of their records." See United States v. Hunter, 13 F.Supp.2d 574, 584 (D.Vt. 1998). Furthermore, we note that the extensive search of the computer hard drive was necessary in order to locate the documents constituting evidence of the crimes under investigation as the information sought was easily concealed within the computer. We further acknowledge, as did the district court, the comprehensive safeguards taken by the police to limit their search of Bolsinger's computer to the items specified in the warrant, e.g. information relating to the Wittenmyer Youth Center or evidence relevant to the crime of sexual abuse. Finally, we recognize, as have other courts, that a search does not become invalid merely because some items not covered by a warrant are seized. See United States v. Lambert, 771 F.2d 83 (6th Cir.) cert denied, 474 U.S. 1034, 106 S. Ct. 598, 88 L. Ed. 2d 577 (1985); U.S. v. Kufrovich, 997 F.Supp. 246, 264 (D. Conn. 1997) (determining that search of computer files did not go beyond the scope of the warrant even though some of the files did not constitute evidence because the information sought was easily hidden in the computer) (overruled in part on other grounds). Accordingly, we agree with the district court's conclusion the search of Bolsinger's computer was not beyond the scope of the warrant.
B. Sufficiency of Evidence
Bolsinger argues that all of his convictions should be reversed because "[t]here is no evidence on which a jury could find that any of his acts were `sexual in nature.'" In reviewing sufficiency of the evidence claims, we view the evidence broadly and liberally in a light most favorable to the State to determine whether substantial evidence supports the verdict. See State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). "Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt." State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984) The jury was presented with evidence that Bolsinger's touching of the boys' penises and/or testicles had no legitimate purpose and that a substantial amount of pornography involving unidentified teenage boys engaging in sex acts with each other and older men was found at Bolsinger's home. A rational fact finder would find this evidence sufficient to demonstrate beyond a reasonable doubt that Bolsinger's acts were "sexual in nature."
C. Jury Instructions
Alleged errors in jury instructions are reviewed for correction of errors at law. Iowa R. App. P. 6.4; Sleeth v. Louvar, 659 N.W.2d 210, 213 (Iowa 2003). Jury instructions are reviewed to "determine if they are correct statements of the law and are supported by substantial evidence." State v. Scalise, 660 N.W.2d 58, 63-64 (Iowa 2003).
This court is equally divided on whether the Jury Instruction No. 21 below was a correct statement of the law. Therefore, this part of the judgment is affirmed by operation of law. See Iowa Code § 602.5106(1) (2005). Consequently, Bolsinger's convictions under counts I, II, and III are affirmed by operation of law. A unanimous court affirms Bolsinger's convictions on all other counts.
For affirmance: Sackett, C.J., and Mahan, Zimmer, and Vaitheswaran, JJ.
For reversal: Vogel, Miller, Hecht, and Eisenhauer, JJ.
AFFIRMED IN PART AND AFFIRMED BY OPERATION OF LAW IN PART.
Vogel, Mahan, and Vaitheswaran, JJ., each write separately.
Bolsinger alleges the district court incorrectly instructed the jury with respect to the crime of sexual abuse in the third degree. He avers the court's instruction impermissibly went beyond the statutory elements set forth in Iowa Code section 709.4(1). Iowa Code section 709.1 defines sexual abuse as:
Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:
1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.
Bolsinger was charged under Iowa Code section 709.4(1), which states:
A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:
1. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.
Jury Instruction 21 instructed the jury as follows:
An act may be done "by force or against the will" of another if the other's consent or acquiescence is procured by . . . 2) deception, which may include deception concerning the nature of the act or deception concerning the defendant's right to exercise authority over the other under the circumstances.
Bolsinger avers Jury Instruction 21 contained an incorrect statement of law. He asserts section 709.4(1) does not criminalize a sex act when consent to the sex act is obtained through deceiving the victim about the nature of the act. Consequently, he contends he is entitled to a new trial because the district court incorrectly instructed the jury on the crime of sexual abuse in the third degree.
I disagree with Bolsinger's assertions and would affirm the district court on the jury instruction issue for two reasons. First, I do not believe Bolsinger was prejudiced by Jury Instruction 21 because sufficient evidence was presented at trial for a jury to find the acts were committed by force or against the will of the victims without taking into account the challenged language. Furthermore, assuming arguendo, the merits of Bolsinger's attack on Jury Instruction 21 need to be addressed, I would conclude that State v. Vander Esch, 622 N.W.2d 689 (Iowa Ct.App. 2002) was correctly decided and that Jury Instruction 21 was a correct statement of the law. I will address each argument in turn.
I. Lack of Prejudice.
Although the record reflects that Bolsinger asked permission to touch many, if not all, of the boys involved, I do not believe the boys were able to validly consent to Bolsinger's requests in light of the unique environment that existed at the S.U.M.M.I.T. Program. Consequently, I would first characterize the issue as whether or not valid consent was actually obtained from the boys under the totality of the circumstances. If valid consent was not obtained, then Bolsinger's acts were done by force or against the will of the victims as required by the plain language of section 709.4(1), and it is not necessary to address the propriety of the challenged language in Jury Instruction 21.
Fourteen of the boys who were touched by Bolsinger testified that the S.U.M.M.I.T. program was a highly regimented and highly structured, military-based program. The following testimony was elicited at trial:
Testimony of D.G.H.
Q. How did you feel about your ability to refuse any request made of you by instructors at the S.U.M.M.I.T. Program? A. There was a lot of trouble if you tried.
Q. So what was your goal, then, when you got to the S.U.M.M.I.T. Program? A. To do the best I could, get out and move on with my life more positively.
Q. And doing the best you could meant following the instructions given to you by the S.U.M.M.I.T. Program? A. Yes.
Testimony of L.D.B.
Q. How did you feel when you were at S.U.M.M.I.T. about your freedom to make your own decisions. A. You didn't. We really didn't have any rights, really. I mean, we did, but we could only write letters, make a phone call and stuff like that.
Q. Other than that, who made your decisions for you? A. The staff members.
Testimony of A.M.
Q. Tell us about your freedom to make your own decisions at the S.U.M.M.I.T. Program while you were there? A. There was none. You could not make your own decisions, really. It was all made for you. There is no freedom to do, like, what you wanted to do. It was all done for you. People tell you what to do.
Q. Tell us about your freedom to refuse any request that an instructor or Mr. Bolsinger made of you? A. We had no freedom to refuse anything either. It was either do it, what they said, or face consequences.
Testimony of S.G.
Q. And what kind of program was it? Was it easy? Was it hard? A. It was hard.
Q. And what made it hard? A. All the yelling. You have to do what they tell you.
Q. So tell us, did you feel free to make your own decisions when you were at the program? A. You couldn't make your own decisions.
Q. How about your freedom to refuse any request made of you by an instructor? A. No.
Testimony of E.M.
Q. Can you tell us, Mr. M., with regard to the S.U.M.M.I.T. Program, how free did you feel to make your own decisions? A. Not at all. It was just like a prison, only not being locked up behind bars.
Q. How free did you feel to refuse the request of anyone such as an instructor or Mr. Bolsinger at the S.U.M.M.I.T. Program? A. Not at all.
Testimony of J.L.
Q. Tell me, Mr. L., with regard to the S.U.M.M.I.T. Program, how did you feel about your freedom to make your own decisions? A. You mean at that moment or throughout the whole program?
Q. Throughout the whole program. A. I wasn't allowed to make any decisions. I was allowed to make my decisions — I just basically had to ask to do everything.
Q. And how about, did you feel free to refuse any request made of you by someone who was in authority at the program, be it an instructor or Mr. Bolsinger? A. No.
Testimony of R.S.
Q. And how about, did you feel free to refuse any request made of you by someone who was in authority at the program, be it an instructor or Mr. Bolsinger? A. No.
Q.R., tell me with reference to the S.U.M.M.I.T. Program in general, how free were you while you were in the S.U.M.M.I.T. Program to make decisions about yourself? A. Not very. You could do a little more freely as you went through the months. In the beginning, not at all. We couldn't make any decisions at all the first month.
Q. What was the S.U.M.M.I.T. Program about, you obeying the orders given to you by instructors or Mr. Bolsinger? A. I would do whatever they told me to do because if I didn't I would have to face a consequence, usually fairly harsh.
Testimony of J.K.
Q. Can you tell me, Mr. K., with regard to the S.U.M.M.I.T. Program, how free did you feel to make decisions about yourself while you were there? A. I didn't have any decisions.
Q. How free did you feel to refuse an order given to you by an instructor or by Mr. Bolsinger? A. We didn't have a choice.
Testimony of B.P.
Q. Tell me about your freedom while at the S.U.M.M.I.T. Program to make decisions for yourself. A. You had none.
Q. Tell us about your ability while at the S.U.M.M.I.T. Program to refuse a request or an order given to you by Mr. Bolsinger. A. You never refused.
Testimony of T.G.
Q. Tell me, T., when you were at the S.U.M.M.I.T. Program, how free did you feel to make decisions for yourself? A. Not free at all.
Q. How free did you feel to say no to any request made of you by an instructor or by Mr. Bolsinger? A. There wasn't no — really, I mean, I had to do what they told me to do.
Testimony of A.J.P.
Q. Tell me, A., when you were at the S.U.M.M.I.T. Program, how free did you feel to make decisions, your own decisions about yourself? A. I didn't feel too free to make — they tell you when to do whatever. If you have to use the restroom, you have to ask, and sometimes they say no, wait. It would be like half an hour, 35 minutes, to get to go.
Q. You had to ask permission to do everything? A. Yes.
Q. How free did you feel for you to say no to anything that an instructor or Mr. Bolsinger asked you to do? A. Not at all, because I had a fear of them getting in my face and getting restrained. I was trying to do the program and do whatever I needed to do to stay positive and get out.
Testimony of J.R.
Q. Now, J., tell me, while you were at the S.U.M.M.I.T. Program how free did you feel to make decisions for yourself? A. Not very free at all, really. They told us we could do anything we wanted to, the consequences were just great enough that you didn't want to.
Q. How free did you feel to refuse a request made to you by an instructor or by Mr. Bolsinger? A. I didn't feel very free at all to do that. I just felt kind of limited.
Testimony of J.C.S.C.
Q. Tell me, J.C., about how free you were — how able you were while at the S.U.M.M.I.T. Program to make decisions for yourself? A. I wasn't.
Q. Tell me, J.C., how free were you to say no to anything requested of you by an instructor or Mr. Bolsinger? A. I wasn't.
Testimony of T.R.
Q.T., tell me, when you were in the S.U.M.M.I.T. Program, how free did you feel to make your own decisions about yourself? A. Not really that free. I was pretty scared most of the time. It was hard.
Whether or not Bolsinger was prejudiced by Jury Instruction 21 ultimately turns upon the meaning of the phrase "by force or against the will" of another person. The textbook definition of "force" not only encompasses "physical strength" but also "moral or mental strength." Webster's Third New Int'l Dictionary 887 (unabr. ed. 1993). The word "force," when used as a verb, means to "constrain or compel by physical, moral or intellectual means." Id. Generally, "force" indicates the "use of strength, power, weight, stress, or duress in overcoming resistance." Id. (emphasis added). Based on the foregoing, it is clear that "force" connotes more than the exercise of sheer physical force of violence. See Commonwealth v. Rhodes, 510 A.2d 1217, 1225 (Pa. 1986) ("The phrase also connotes the act of using superior force — physical, moral, psychological, or intellectual — to compel a person to do a thing against that person's volition and/or will.").
Numerous state courts have adopted and applied a broad definition of "force" in sexual abuse cases. See Powe v. State, 597 So.2d 721, 727-28 (Ala. 1992) (concluding "the jury could reasonably infer that [the defendant] held a position of authority and domination with regard to his daughter sufficient to allow the inference of an implied threat to her if she refused to comply with his demands"); People v. Bailey, 675 N.Y.S.2d 706, 708 (App.Div. 1998) (holding that a jury could reasonably infer the sexual contact was perpetrated by forcible compulsion based on the size and age difference between the victim and the defendant and the victim's perception of the defendant's authority); State v. Etheridge, 352 S.E.2d 673, 681-82 (N.C. 1987) (holding in certain cases "explicit threats and displays of force are not necessary to effectuate an abuser's purpose" and that in such situations constructive force can be inferred); Rhodes, 510 A.2d at 1225 (defining force to include not only physical force, but also moral, psychological and intellectual force); State v. Burke, 522 A.2d 725, 735 (R.I. 1987) (holding "[a] threat may consist of the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure").
Two cases are particularly relevant to the case at hand. In State v. Etheridge, the defendant father sexually abused his son. 352 S.E.2d at 675. The evidence showed the defendant instructed the boy to remove his clothes. Id. Initially, the child refused. Id. The defendant instructed the child to "do it anyway," and the child subsequently obeyed. Id. The court concluded the defendant used his position of power to force his son's participation in the sexual acts. Id. at 681-82. The court stated the following:
The youth and vulnerability of children, coupled with the power inherent in a parent's position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser's purpose.
. . . .
In the incident charged, defendant said no more than "[d]o it anyway" when his son initially refused to disrobe. It is nonetheless reasonable to conclude that these words carried a great deal more menace than is apparent on the surface, for a father's threat to impose punishment upon a child who refuses to obey his commands need not be stated in so many words. The child's knowledge of his father's power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his father's wrath. As one commentator observes, force can be understood in some contexts as the power one need not use. In such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces. Coercion, as stated above, is a form of constructive force.
Id. (citations omitted).
The Supreme Court of Rhode Island also addressed a similar situation. In State v. Burke, a uniformed police officer stopped a young woman for hitchhiking. 522 A.2d at 728. The officer asked her to get into his squad car and drove the woman to her house. Id. The officer came inside the woman's house and asked the woman to give him a "blow job." Id. The woman complied because she was fearful of the defendant. Id. The court, in determining that the victim was coerced into the sexual act stated:
An implied threat is as effective as a stated threat, sometimes even more so, especially when the apparent ability to carry out the threat is overwhelming. It is well established that "threats of force need not be made in any particular manner in order to put a person in fear of bodily harm. Sexual submission induced by fear is not the product of consent, but coercion. A command on the part of one who possesses complete authority and overwhelming force to back up that authority need not be accompanied by an explicit threat in order to be effectively coercive.
Id. at 735. These two cases demonstrate that in certain circumstances, particularly in cases where a victim is vulnerable, psychological pressure or constructive force can be just as powerful as sheer physical force. In such situations, most courts employ a totality of the circumstances analysis to determine if the requisite force existed. See, e.g., Rhodes, 510 A.2d at 1127. The Supreme Court of Pennsylvania set forth a nonexclusive list of factors in Commonwealth v. Rhodes. There, the court stated:
The statute addressed in Rhodes, although the offense at issue was rape, used similar phraseology to the Iowa sexual abuse statute.
The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion (which we have defined to include "not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person's will") or by the threat of such forcible compulsion that would prevent resistance by a person of reasonable resolution is, of course, a determination that will be made in each case based upon the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.
Iowa Code section 709.5 supports the use of a totality of the circumstances approach when determining whether or not a sex act was against the will of the other person or done by force. Section 709.5 specifically states "the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other." Hence, I would apply the reasoning and the framework adopted by these courts to the case at hand to determine if Bolsinger's acts were done by force or against the boys' will.
An examination of the evidence presented in this case supports a finding that the acquiescence of the boys was brought about by the requisite force, applied by Bolsinger. Bolsinger was the director of the S.U.M.M.I.T. Program. The testimony presented at trial established that the S.U.M.M.I.T. Program was a highly regimented and structured "boot camp" detention facility for boys. The boys were not permitted to make their own decisions or question authority. Any disobedience resulted in punishment and could ultimately delay the boys' return to their homes. The evidence demonstrated the boys were in an unfamiliar and unfriendly environment, designed to teach discipline, obedience, and respect for authoritarian figures. Under these circumstances, it is obvious Bolsinger wielded authority over the boys involved in the program and that this created a psychological and emotional atmosphere in which the boys were prevented from resisting Bolsinger's requests. I would conclude Bolsinger's position of authority, coupled with the military-like atmosphere of the S.U.M.M.I.T. Program, was the determinative factor in the boys' submission to Bolsinger's requests. Bolsinger coerced the boys into submission by the employment of both psychological force and implied threats. This conduct falls directly under the purview Iowa Code sections 709.1 and 709.4.
It is not necessary to prove that the victims actually resisted in order to prove that the sex act was against the victims' wills and/or without consent. Iowa Code § 709.5 provides "it shall not be necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person."
Section 709.4(2)(c)(3) bolsters the conclusion that the Iowa Legislature intended to classify such conduct as third-degree sexual abuse. This section states that a person commits third-degree sexual abuse when the victim is fourteen or fifteen years of age and the perpetrator is "in a position of authority over the other person and uses that authority to coerce the other person to submit." Although this section does not technically apply in this case, it reflects the notion that consent is not always a defense to coercion. In the case of fourteen and fifteen year olds, section 709.4(2)(c)(3) creates the presumption that consent is not a defense to coercion under any circumstances when any type of authoritarian figure abuses a position of authority. However, in all other cases, whether or not consent is valid is to be determined by an examination of the circumstances surrounding the commission of the act. See Iowa Code § 709.5. Thus, I would conclude sufficient evidence existed to convict Bolsinger under section 709.4 without the alleged erroneous language contained in Jury Instruction 21. Consequently, even if Jury Instruction 21 contained an incorrect statement of law, I would find Bolsinger was not prejudiced and affirm his convictions.
I. Fraud in the Factum.
Turning to the merits of Jury Instruction 21, I would conclude that the instruction was a correct statement of the law. Even assuming the victims in this case did validly consent to Bolsinger's acts, I believe Bolsinger's deception negated the boys' consent because his conduct amounted to fraud in the factum under State v. Vander Esch, 662 N.W.2d at 693 (holding fraud in the factum vitiates consent).
The outcome of this case depends upon the distinction between fraud in the factum and fraud in the inducement. The general rule is that if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as the direct and immediate legal consequences are concerned, if the deception relates not to the thing done, but merely to some collateral matter (fraud in the inducement). Rollin M. Perkins Ronald N. Boyce, Criminal Law § 3, at 1079 (3d ed. 1982). To summarize, in cases involving fraud in the inducement, the victim knows a sexual act is taking place, but is deceived as to some collateral matter. See, e.g., id. at 1080 (noting that it is fraud in the inducement to obtain sexual intercourse with a prostitute by giving her counterfeit money); see also Boro v. Superior Court, 210 Cal. Rptr. 122, 124 (1985) (holding it was fraud in the inducement where a doctor had sexual intercourse with a patient under the fraudulent pretense of medical treatment). However, in cases involving fraud in the factum, the victim is completely unaware a sex act is taking place. In these types of cases, the victim consents to something other than a sexual act. See id. at 124 (holding it was fraud in the factum where "the victims . . . consented, not to sexual intercourse, but to an act of an altogether different nature"). Thus, when a victim gives consent to a pathological and not a carnal act, the victim is unaware a sex act is taking place and the mistake constitutes fraud in the factum. See id. As at least one court has noted:
The distinction involved in this case is between fraud in the inducement and fraud in the factum. The former applies to situations where consent is obtained by misrepresentations (`No, I'm not married'; `I'll respect you in the morning'); the latter applies to misrepresentations about the nature of the act itself.
United States v. Hughes, 48 M.J. 214, 216 (C.A.A.F. 1998); see also United States v. Booker, 25 M.J. 114, 116 (C.M.A. 1987) (noting the "better view is that the `factum' involves both the nature of the act and some knowledge of the participant").
Judge Vogel, writing separately, faults the holding in Vander Esch because the cases relied upon all had specific statues that provided an act done while the victim is unconscious as to the nature of the act was a crime. However, such language was not present in the provision of law at issue in Booker and Hughes. At issue in those cases was Article 120 of the Uniform Code of Military Justice, which provides a person commits rape by engaging in "sexual intercourse with a female not his wife, by force and without her consent."
The distinction between fraud in the factum and fraud in the inducement has been addressed by courts in cases where a person fraudulently obtains intercourse by impersonating a spouse. Professor Perkins points out that although the courts are not in agreement as to whether such deception constitutes the criminal act of rape, the better view recognizes that such deceit constitutes fraud in the factum. Perkins Boyce, § 3, at 1080-1081.
[T]he disagreement is not in regard to the underlying principle but only as to its application. Some courts have taken the position that such a misdeed is fraud in the inducement on the theory that the woman consents to exactly what is done (sexual intercourse) and hence there is no rape; other courts, with better reason it would seem, hold such a misdeed to be rape on the theory that it involves fraud in the factum since the woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery. Her innocence seems never to have been questioned in such a case and the reason she is not guilty of adultery is because she did not consent to adulterous intercourse.
Id. (footnotes omitted) (emphasis added). Thus, other courts and commentators have recognized that fraud in the factum involves both the nature of the act and also, some knowledge of the participant in the sexual act. This is the better view, because it is in accord with the public policy of protecting individuals, particularly children, from sexual abuse and assault.
The case at hand illustrates this point. Here, the boys consented to X — a medical procedure — but in reality, Y — a sex act — occurred. This type of situation falls within the ambit of fraud in factum. What happened, a sexual act, was not that for which consent was given. See Perkins Boyce, § 3, at 1079. Judge Vogel, writing separately, asserts that in cases dealing with deception as to the nature of the act, a defendant is punished "not based on the victim's state of mind at the time of the act, but instead for how the discovery of the defendant's illicit state of mind at the time of the act alters the victim's state of mind after the act." Such a characterization fails to recognize that in these types of situations, although the victim consents to an act, the victim does not consent to the act that is, in reality, done. Thus, the defendant is punished based on the victim's state of mind at the time of the act because the victim never gave valid consent to what actually happened. The lack of consent is present not only after the act, as the dissent asserts, but also during the act because valid consent was never procured for the act that actually took place.
Based on the foregoing, I would conclude that Bolsinger procured the victims' consent by fraud in the factum and that consequently, such consent was vitiated. Because valid consent to what actually occurred was never obtained, it follows that the acts of Bolsinger were done against the will of the victims. Thus, I do not believe it is necessary for the legislature to specifically delineate that deception as to the nature of the act being done constitutes an act done by "force or against the will" of the other person. The statute, as written, encompasses such behavior because it qualifies as fraud in the factum, which vitiates consent. See Perkins Boyce, § 3, at 1079.
A conclusion to the contrary would permit sexual acts to be performed upon unwilling participants so long as they are lied to about the nature of the act. To characterize this type of act as simply fraud in the inducement would allow sexual predators free rein to prey upon their victims. I cannot agree with such a result. For the foregoing reasons, I would affirm Bolsinger's convictions.
Sackett, C.J., and Zimmer, J., join this separate writing.
I write separately to emphasize that I do not believe the problem is with the statutory language "by force or against the will" but with the judicial overlay of fraud-in-the-factum versus fraud-in-the-inducement. In my mind, this distinction is not helpful.
In every sexual abuse case under Iowa Code section 709.4(1), a fact-finder will have to decide whether all the facts in the record establish that the sex act was performed by force or against the will. Based on the unique and serious facts in this case, the jury determined that the State satisfied this standard. In my view, the jury could have performed this function without the jury instruction on deception concerning the nature of the act. While I do not believe this instruction is erroneous, it was not necessary, just as the defendant's proposed instruction was not necessary. Both instructions cloud the real issue: was the sex act truly against the will of the participant. I believe the jury had more than substantial evidence from which to answer yes to this question.
Sexual abuse in the third degree consists of two elements, one of them being that the "defendant performed the sex act by force or against the will of [the victim]." Iowa Code § 709.4(1) (2003). The jury was provided Instruction 21, which stated in part that,
An act may be done "by force or against the will" of another if the other's consent or acquiescence is procured by . . .
2) deception, which may include deception concerning the nature of the act or deception concerning the defendant's right to exercise authority over the other under the circumstances.
Bolsinger argues the district court erred by giving this instruction and by not giving his proposed instruction:
If you find the acts were not consented to as a result of physical force, then you must consider whether they were considered to be fraud. If you find the Defendant simply misrepresented or falsely stated his reason for wanting to perform the act or acts, but indeed performed the actual physical acts he told [the victims] he was going to perform, then you must find the Defendant not guilty. This is called fraud in the inducement.
Both Bolsinger's objection to Instruction 21 and his argument in support of his proposed instruction hinge on the meaning of the phrase "by force or against the will" as found in Iowa Code section 709.4(1). Specifically, Bolsinger argues that to touch someone by deception, but with their consent, is not "against the will" of the other person. Based on this contention, Bolsinger asserts that because each boy gave his consent to the touching that occurred, the statute does not encompass the acts that he engaged in. Because only the legislature can determine what is criminal, Bolsinger argues that the district court impermissibly went beyond the statutory elements in instructing the jury on the crime of sexual abuse in the third degree. See State v. Watts, 186 N.W.2d 611, 614 (Iowa 1971) (noting that only the legislature has the power to create and define crime).
Bolsinger was convicted of three counts of sex abuse in the third degree based on his acts occurring with three boys, J.K, T.R. and R.S. The State does not argue on appeal that these boys did not give or were not able to give valid consent; the State's argument instead focuses on whether this consent was vitiated by Bolsinger's deception. Moreover, my review of the record reveals that although each of these boys testified that the program at Wittenmyer was very regimented, and that they were not free to make their own decisions, each boy further testified that had they known Bolsinger's sexual purposes they would not have consented. Thus, despite the boys' testimony that they could not question anyone in a position of authority, each of these boys, as well as almost all of the other boys who testified at trial stated that had they known Bolsinger's illicit motivations, consent would not have been given. This testimony evidences these boys' ability and willingness to withhold consent to a criminal act, even to a Wittenmyer instructor.
Thus, the issue is whether Bolsinger's deception negates the boys' consent. If so, the acts he committed were done "by force or against their will." If not, section 709.4(1), as currently written, does not proscribe Bolsinger's reprehensible conduct, although various statutory provisions do so. The resolution of this issue requires a determination as to whether the deception surrounding the procurement of the boys' consent is "fraud in factum" or whether it is more properly considered "fraud in the inducement."
Fraud in factum encompasses a situation where what actually or physically occurs is not what was consented to. See People v. Ogunmola, 238 Cal. Rptr. 300, 304 (Cal.Ct.App. 1985) (describing situations where victims consented to a gynecological examination using medical instruments, but where the doctor instead engaged in sexual intercourse; the victims' consent was negated because something other than what they consented to occurred.); McNair v. State, 825 P.2d 571, 572-73 (Nev. 1992) (determining that patients'/victims' consent to medical treatment, was vitiated, where anal penile penetration was instead forced upon them, as the victims "consented to one thing, he did another materially different.") (citations omitted). Fraud in factum vitiates consent. People v. Harris, 155 Cal. Rptr. 472, 478 (Cal.Ct.App. 1979); see also Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at 506 (2nd ed. 2003) [LaFave] (providing that "fraud in the factum involves a form of deception which results in a misunderstanding by the victim as to the very fact of the defendant's conduct . . ."); see also R. Perkins R. Boyce, Criminal Law ch. 9, § 3, p. 1079 (3d ed. 1982) [Perkins Boyce] (noting that "if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given.").
I recognize that some courts have expanded on the concept of fraud in the factum and held that even where a participant has consented to the very act taking place consent is nonetheless procured by fraud in the factum when the participant is deceived as to the identity of the other participant. See United States v. Booker, 25 M.J. 114, 116 (C.M.A. 1987) (determining that consent given to a sex act was procured by fraud in the factum, and was thus not "actual consent" within the meaning of applicable military manual, where the victim was deceived as to the identity of the prospective sex partner); United States v. Hughes, 48 M.J. 214, 216 (C.A.A.F. 1998) (citing Booker for the proposition that actual consent within the meaning of the applicable military manual means "that a woman must be agreeable to the penetration of her body by a particular membrum virile" and that deception as to the identity of the male sex organ constituted fraud in the factum); see also Perkins Boyce, § 3, at 1080-1081 (stating that in situations where a person obtains intercourse with another by impersonating a spouse the best reasoning is that such deception is fraud in the factum even though the consent is to sexual intercourse and intercourse occurred). These cases, and their reasoning expanding the concept of fraud in factum, are not applicable to Bolsinger's facts as there is no dispute that the boys' consent was given to Bolsinger, and it was Bolsinger who performed the acts in question.
With fraud in the inducement, the deception relates not to the thing done, but merely to some collateral matter. See LaFave § 6.5(a), at 506. In this type of deception, "the victim is fraudulently induced to consent to the doing of act X and the perpetrator of the fraud does commit act X." Harris, 155 Cal. Rptr. at 478. Often, with fraud in the inducement, the "collateral matter" misrepresented or concealed is the sexual motive or intent of one of the participants to the consented to act. Fraud in the inducement is generally not recognized as negating consent. See Boro v. Superior Court, 210 Cal. Rptr. 122, 126 (Cal.Ct.App. 1985); see also Perkins Boyce § 3, at 1079 ("consent induced by fraud is as effective as any other consent . . . if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).").
This court recently had an opportunity to consider the concepts of fraud in factum and fraud in the inducement in State v. Vander Esch, 662 N.W.2d 689, 691-94 (Iowa Ct.App. 2002). In Vander Esch, the victims consented to give semen samples in the presence of the defendant and with his assistance, but under the mistaken belief the act was being done for medical or research purposes and that they would be paid for the samples. Id. at 691. The sexual motives of Vander Esch were not known to the boys at the time they gave their consent as the victims later indicated they would not have consented under those circumstances. Id. We held that because the victims' consent was to participate in a pathological or medical procedure and not to be participants in a sex act, Vander Esch's deception was fraud in factum, which negated the victims' consent. Id. at 694.
Vander Esch was filed on November 15, 2002, after Bolsinger's acts were committed.
Vander Esch told the victims that the semen samples were needed for prostate cancer research.
Bolsinger argues that the deception in Vander Esch was not fraud in factum but fraud in the inducement, and that by vitiating the victims' consent based on this type of deception, we created a new means of committing third-degree sexual abuse not proscribed by Iowa Code section 709.4. Bolsinger calls for an overruling of Vander Esch. I would find it necessary to revisit our prior holding.
In reviewing the facts of Vander Esch, I believe it apparent that the victims did consent to the actual physical touching that took place, although under false pretenses. Id. at 691. Otherwise stated, the victims in Vander Esch agreed to provide semen samples with Vander Esch's assistance, and they did in fact provide such samples. Id. Because the boys consented to precisely the physical touching that occurred, I think the fraud perpetrated is more akin to fraud in the inducement, than fraud in factum. See Boro, 163 Cal. App.3d at 1231, 210 Cal. Rptr. at 126 (holding it was fraud in the inducement when the victim's consent to intercourse was procured by the defendant posing as a doctor and claiming he could cure her by engaging in sexual intercourse with him).
The facts of Vander Esch also indicate that Vander Esch "showed [victim #1] his own penis" and that when the procedure was finished "he `milked' the penis to `get out all the semen." However, the victims did not argue that these acts went beyond their consent.
It is clear that the victims in Vander Esch did not know the sexual gratifications sought by Vander Esch when he enticed them to allow him to participate in the act he portrayed as medical. Vander Esch, 662 N.W.2d at 691. Thus, at the time Vander Esch obtained the victims' consent and touched them as he told them he would, the victims believed it to be for medical or pathological purposes, when it was just a ruse for Vander Esch's sexual desires. Some jurisdictions consider these victims "unconscious of the nature of the act" and take a broad view of fraud in factum by categorizing this type of deception as such. See Ogunmola, 238 Cal. Rptr. at 304 (holding that the deception at issue was fraud in factum because the victims consented to a pathological examination and were "unconscious of the [sexual] nature of the act"). I would assert that this was the construction given to the facts in our Vander Esch decision.
I note that it is not necessary to take such an expansive view of fraud in factum in order to conclude the deception taking place in Ogunmola is fraud in factum. In Ogunmola the victims consented to a gynecological procedure and the physician had intercourse with them. Ogunmola, 193 Cal.App.3d at 281, 238 Cal. Rptr. at 304. Thus, the victims consented to X and Y occurred; they cannot be said to have consented to the intercourse.
In Vander Esch we held the deception at issue was fraud in factum because the victims, although consenting to the actual touching that took place, believed they were consenting to a pathological or medical procedure, not providing sexual gratification to Vander Esch. See Vander Esch, 662 N.W.2d at 694. Thus, in Vander Esch, we determined that deception as to the "nature of the act" being consented to constituted fraud in factum. See id. at 693-94. However, upon consideration of Bolsinger's arguments concerning this determination, I contend Vander Esch should be overruled in this respect.
My examination of the decisions relied upon in Vander Esch for the proposition that "where consent was to a pathological and not a carnal act, this is considered to be fraud in the factum, and not merely fraud in the inducement" revealed, to me, one glaring problem regarding applying these cases in Iowa. Id. at 693. The statutes at issue in Ogunmola and Ely both allowed a conviction for their violation where the victim is, at the time of the act, "unconscious of the nature of the act." See Ogunmola, 238 Cal. Rptr. 304; State v. Ely, 114 Wash. 185, 192, 194 P. 988, 992 (1921). Thus, in these cases, the state legislatures had codified that a victim could not consent if the victim was not aware of the nature of the act to which they were to participate. Accordingly, courts applying these statutes to cases where consent was obtained by fraud or deception analyzed whether the deception caused the victim to be unaware of the "nature of the act." Id.; compare Boro, 210 Cal. Rptr. at 126-28 (recognizing a victim's consent even though it was elicited by the defendant's fraudulent statements because the victim understood the "nature of the act" consented to). These courts ultimately determined that consent procured by deception as to the "nature of the act" was not legally recognizable consent and, because only fraud in factum vitiated legally recognized consent, the fraud at issue must then be fraud in factum. Id.
I also note that the cases cited from Illinois also involve a distinguishable statute as the statute at issue requires that the victim give "knowing consent." See People v. Costello, 586 N.E.2d 742 (1992); People v. Quilan, 596 N.E.2d 28 (1992).
The district court, in crafting Jury Instruction 21, relied on our decision in Vander Esch for the proposition that an act is "by force or against the will" of another if it is procured by "deception, which may include deception concerning the nature of the act . . ." (emphasis added). However, unlike the statutes in Ogunmola and Ely, Iowa Code section 709.4 does not provide that an act done "while the victim is unconscious of the nature of the act . . ." is a crime. Therefore, I contend that unlike the legislatures of California and Washington, our General Assembly has not promulgated a statute negating consent if the victim does not have a conscious understanding as to the "nature of the act."
Moreover, the legislative explanation of the 1989 amendment to section 709.4 reveals that the General Assembly modified "the structure of Code section 709.4 to state that a sex act by force or against the will of another is sexual abuse in the third degree" and that section 709.4(2) was intended to enumerate "the situations under which acts which are not by force or against the will of another are still classifiable as sexual abuse in the third degree." S.F. 426 73rd Gen. Assem. (Iowa 1989) (emphasis added). The list of situations provided in Iowa Code section 709.4(2) includes those where,
2. The act is between persons who are not at the time cohabiting as husband and wife and if any of the following are true:
a. The other person is suffering from a mental defect or incapacity which precludes giving consent.
b. The other person is twelve or thirteen years of age.
Among the situations listed in Iowa Code section 709.4(2)(c) as being punishable as sex abuse in the third degree even though the act is not done by force or against the will of the other, or in other words, is done with consent, are situations where the person obtaining consent "is in a position of authority over the other person and uses the authority to coerce the other person to submit." See Iowa Code § 709.4(2)(c)(3). Thus, our General Assembly has recognized the inherent dangers present in the exercise of authority and the imposition of coercion upon others, as was present at Wittenmyer. However, the legislature made the decision to punish an act done via consent obtained by such coercion only if the victim is fifteen years of age or less. The boys Bolsinger was convicted of committing sexual abuse on were sixteen years of age or older. Therefore, Bolsinger could not be guilty of sexual abuse in the third degree based solely on coercion stemming from his position of authority. To conclude otherwise requires a determination that the abuse of authority and application of coercion falls within the purview of Iowa Code section 709.4(1) as being "by force or against the will" of the other person, and to so conclude would require the complete disregard of the legislature's pronouncement that acts done via consent procured by authority and coercion are not against the will of the other party. Moreover, such a determination would render the line drawn by the legislature regarding the age of the victim a nullity as a person could be convicted of sex abuse in the third degree for obtaining consent through the abuse of authority regardless of the age of the other person. I believe this is clearly contrary to the legislature's intent in codifying Iowa Code section 709.4(2)(c)(3).
Iowa Code § 709.4(2). These are all situations where the person is legally incapable of being conscious of the "nature of the act." See State v. Grossheim, 79 Iowa 75, 76, 44 N.W. 541, 542 (1890) (stating that under the law of Iowa, a child under the age of consent is not competent to consent to a sex act). Yet, our legislature specifically stated that these situations are not done "by force or against the will" of the other party. Consequently, I would conclude that our legislature did not intend acts done where one party was not aware of the nature of the act to be deemed "by force or against the will" of that party.
This conclusion is bolstered by consideration of Iowa Code section 709.1(1) in which the legislature mandated that a sex act is done against the will of another if it is done "while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness. . . ." With this language, the legislature, "obviously intended to prohibit a sex act performed upon an unconscious person — unconscious by whatever means, including drug induced sleep." State v. Weiss, 528 N.W.2d 519, 521 (Iowa 1995) (emphasis added). Thus, I contend that unlike the legislatures of other jurisdictions, our General Assembly did not make committing a sex act with a person not aware of the nature of the act punishable under Iowa Code section 709.4(1), but instead criminalized sex acts done when the victim was physically unconscious. Because of this distinction, I would conclude that deception, causing another to consent to the very act that takes place, but with a lack of understanding as to the "nature of the act" does not, under Iowa Code section 709.4, vitiate consent.
In considering the nature of the act, the focus is on the victim's state of mind at the time the touching occurred; the alleged perpetrator's state of mind is not at issue. See State v. Plaster, 424 N.W.2d 226, 234 (Iowa 1988) (Schultz, J., dissenting); see also, State v. Bauer, 324 N.W.2d 320, 322 (Iowa 1982) (determining that under Iowa Code section 709.5 evidence of a victim's subjective lack of consent to a sex act satisfies the "by force or against the will" requirement of Iowa Code section 709.4). In Bolsinger's and Vander Esch's scenario, at the time the touching took place, the victims' state of mind was one of consent. Consequently, I would conclude the consent to the act was procured by fraud in the inducement, as the deception was to Bolsinger's and Vander Esch's collateral intent, not to what actually took place. The consent, although procured by fraud, was to the physical act X, and the physical act X occurred. I believe it cannot be said that act X was done "by force or against their will."
The district court, in ruling on Bolsinger's Motion for New Trial and Motion for Arrest of Judgment used the "circumstances surrounding the commission of the act" language contained in Iowa Code section 709.5 in support of providing Instruction 21 to the jury. See Iowa Code § 709.5. My review of the legislative history of 709.5 reveals the intention of the General Assembly was to provide that evidence of physical resistance "may be admissible to prove [the] element of `force or against the will'" even though the State no longer was required to prove that the victim "exerted the utmost resistance to the attack" in establishing sexual abuse. S.F. 85, 66th Gen. Assemb. Explanation of Report of the 2nd Conf. Comm. (Iowa 1975) ; see also Bauer, 324 N.W.2d at 322. There is no indication that the legislature intended that the examination of the surrounding circumstances be used to establish the mind-set of the assailant. See Bauer, 324 N.W.2d at 322 (Iowa Code section 709.5 allows consideration of the surrounding circumstances to establish the victim's subjective lack of consent).
Moreover, I note that in Vander Esch and the other cases vitiating an otherwise valid consent based on a lack of consciousness of the "nature of the act," the distinction between what was consented to and what occurred can only be drawn with the benefit of hindsight. In all "nature of the act" cases, the different nature of the act only becomes clear once the sexual intention of the alleged perpetrator becomes known. Prior to this time, the victim believes the act performed is for the purpose that procured their consent. Consequently, it is my contention that those cases drawing a distinction between the nature of the act consented to and the nature of the act actually performed punish a defendant not based on the victim's state of mind at the time of the act, but instead for how the discovery of the defendant's illicit state of mind at the time of the act alters the victim's state of mind after the act.
Although I find Bolsinger's deception concealing the sexual nature of his acts deplorable, I would conclude that it is not currently punishable as sexual abuse in the third degree absent a legislative mandate proscribing either: (1) a sexual act committed where the other person is not conscious of the nature of the act, or (2) deception causing the consenting person to not understand the nature of the act they have consented to as being done "by force or against the will." I would accordingly hold that part of Jury Instruction 21 that informed the jury that an act is done by force or against the will of another if the other's consent is procured by deception concerning the "nature of the act" is an incorrect statement of Iowa's law. Furthermore, because I believe this instruction prejudiced Bolsinger by creating a means for committing third-degree sexual abuse, not contemplated by our legislature, I would reverse and grant Bolsinger a new trial consistent with this opinionon counts I, II, and III. See State v. Kellogg, 524 N.W.2d 514, 518 (Iowa 1996) (reversing and remanding for new trial where a defendant was prejudiced by a jury instruction).
In all other respects, I would affirm the district court.
Miller, Hecht and Eisenhauer, JJ., join this separate writing.