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FILED: March 2, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ADAM M. SERAFIN,

Defendant-Appellant.

Polk County Circuit Court
07P51207
A139214

Fred E. Avera, Judge.

Argued and submitted on April 29, 2010.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Samuel A. Kubernick, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Edmonds, Senior Judge.

ARMSTRONG, J.

Conviction for third-degree sexual abuse reversed; remanded for resentencing; otherwise affirmed.

ARMSTRONG, J.

Defendant appeals a judgment of conviction for third-degree sexual abuse, ORS 163.415, private indecency, ORS 163.467, and harassment, ORS 166.065. He challenges on appeal only his sexual abuse conviction, arguing that he was entitled to a judgment of acquittal on the charge. We agree with defendant and, accordingly, reverse his conviction on that charge.

Because our review concerns the denial of a judgment of acquittal, we state the facts in the light most favorable to the state. E.g., State v. Rader, 348 Or 81, 83, 228 P3d 552 (2010).(1) Defendant joined a husband and wife for a social evening at their apartment. During the evening, defendant and the husband spent time with friends at another apartment, watching a football game and drinking alcohol to the point that defendant and the husband became intoxicated. The husband invited defendant to spend the night at his and his wife's apartment, and defendant accepted the invitation.

Because of the wife's health, she slept in a recliner in the living room, and the two men slept on opposite sides of her, the husband on a couch and defendant on another recliner. The wife awoke at about 3:00 a.m. and felt a sensation of wetness on one of her exposed shins. She looked up and saw defendant holding his erect penis in his hand and ejaculating on her leg as he masturbated. She screamed, causing defendant to put his penis back into his pants, zip them, and run into the kitchen. The wife awakened her husband and told him what had happened, which led the husband to throw defendant out of the apartment. The couple reported defendant's conduct to the police the next day, prompting an investigation that led to the charges of which defendant was convicted.

ORS 163.415(1)(a) (2007)(2) provides that a person commits the crime of third-degree sexual abuse if

"(1) * * * the person subjects another person to sexual contact and:

"(a) The victim does not consent to the sexual contact; or

"(b) The victim is incapable of consent by reason of being under 18 years of age."

"Sexual contact," in turn, is defined in ORS 163.305(6) to mean

"any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party."

There is no dispute that the conduct in which defendant engaged in ejaculating semen on the victim's shin was sexual and was abusive toward the victim. The question, however, is whether the contact between defendant's semen and the victim's shin comes within the definition of sexual contact in ORS 163.305(6). There is no basis in this record on which a factfinder could find that the victim's shin was an intimate part of her body, so defendant's ejaculation of semen onto the victim did not constitute touching by him of a sexual or intimate part of the victim.(3) Hence, the question reduces to whether defendant caused the victim to touch a sexual or intimate part of defendant's body by causing the victim to come into contact with defendant's semen.

Defendant's principal argument is that bodily fluids, such as blood, urine, and semen, are not parts of the body. In his view, they are substances that are generated and contained within bodies, and, although they may be excreted or expelled from bodies, they are not parts of them. Consequently, the victim's contact with defendant's semen did not constitute contact with a part of defendant's body.

The state responds that bodily fluids are part of the body and that semen, by its nature, is a sexual part of it. In other words, the state posits that semen is a part of the body regardless of whether it is contained within the body or has been expelled from it. Consequently, in its view, the victim's contact with defendant's semen constituted contact by the victim with a sexual part of defendant's body.

As we will explain, the essential feature of the proscription in the third-degree sexual abuse statute is that it is a person's body that must be touched for the statute to apply. That proscription is limited to certain parts of the body, viz., sexual and other intimate parts, but those parts must be part of the body when touched because, if they are not, then the person touching them has not touched the other person. The victim's contact with defendant's semen after it had been expelled from his body was not contact with defendant's body, so that contact did not constitute third-degree sexual abuse.

The consistent theme in the cases applying the third-degree sexual abuse statute and in the commentary that accompanied the statute's enactment in 1971 is that the statute is designed to impose certain limits on the touching of one person by another. The cases and the commentary have grappled with the challenge of resolving whether a particular part of a person's body is an intimate part, but they have done so based on an understanding that the focus of the statute is on nonconsensual touching of one person by another.

For example, in State v. Woodley, 306 Or 458, 760 P2d 884 (1988), the Supreme Court concluded that the determination whether a part of a person's body is an intimate part presents a factual rather than a legal question. It also established the legal test by which a factfinder is to make that determination. Id. at 460-63.

In resolving those issues, the court explained:

"In protecting 'intimate areas' of the human body, the statute invokes individual and cultural standards, and perhaps also the social psychology of group decision by a jury asked to agree on what is 'intimate' while reacting to the circumstances of one case. No area of the anatomy is intrinsically intimate, for instance, to an X-ray camera. The question is whose sense of intimacy matters. Is the perception that of the person touched, of the person who touches, of a third person such as a parent or bystander? Is it that of the legislature, of some identifiable community, or of the factfinder at trial?"

Id. at 460-61. The court ultimately resolved that question by establishing the following test by which a factfinder is to determine whether the person who has been touched was touched in an area of the body that is intimate:

"First, because the object of the statute is to protect persons from unwanted intimacies, the part must be regarded as 'intimate' by the person touched. This is a subjective test.

"Second, if an accused touched this part knowing that the touched person regarded it as intimate and did not consent, the accused violates the statute if the requisite sexual purpose is proved. If the accused, regardless of his or her private purpose, did not know that the part was 'intimate' to the person touched, the state must prove beyond a reasonable doubt that the accused should have recognized it to be an 'intimate part.' The latter is an objective test.

"In other words, the part must be subjectively intimate to the person touched, and either known by the accused to be so or to be an area of the anatomy that would be objectively known to be intimate by any reasonable person."

Id. at 463. Throughout that discussion, the court understood the statute to apply to the act of touching another person.

To the same effect is our discussion in State v. Meyrovich, 204 Or App 385, 129 P3d 729, rev den, 340 Or 673 (2006). There, we had to determine whether a person's neck could be an intimate part of the person's body. We concluded that it could be, explaining that the legislature intended the term "intimate part[ ]" in ORS 163.305(6)

"to mean a body part that the person ordinarily allows to be touched only by other people with whom the person has an intimate relationship, that is, a 'very close personal relationship[ ]' marked by 'love, * * * ardent liking, * * * or mutual cherishing[.]'"

Id. at 391 (quoting Webster's Third Int'l Dictionary 1184 (unabridged ed 2002)) (brackets in original). In light of that understanding, we held that a factfinder could find a person's neck to be an intimate part of the person's body. As with the Supreme Court in Woodley, implicit in our understanding of the statute is that it applies to the act of touching another person in a place on the person's body that the person considers to be intimate.

The commentary to the third-degree sexual abuse statute reflects the same understanding. It provides, as relevant:

"The offense of sexual abuse is intended to cover all unconsented acts of sexual contact which do not involve the element of genital penetration. The section encompasses the following types of behavior:

"(1) Fondling

"(2) Manipulation of genitals

"(3) Digital penetration

"(4) Sadistic or masochistic flagellation

"* * * * *

"The definition of sexual contact * * * proscribes any nonconsensual salacious 'touching' of a person's sexual or other intimate parts. An actual touching is required. * * * However, the contact need not be directly with the person's body; it is sufficient if the defendant touches the victim's sexual or intimate parts through clothing. The contact need only be with either the victim or the actor but it need not be between them. * * *

"The inclusion of the words 'or other intimate parts' does not limit the touching to genitalia but is intended to include genitalia, breasts and whatever anatomical areas the trier of fact deems 'intimate' in the particular cases which arise. Thus the ultimate decision of 'intimate' parts is left to the community sense of decency, propriety and morality."

Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report