Can total passivity = 'victim indicat[ing] by speech or conduct that there is not freely given consent to performance of the sexual act'?

|The Volokh Conspiracy |

1. Unsurprisingly, New Hampshire makes it a felony for adults to have sex with under-16-year-olds. And New Hampshire also makes it a more serious felony for adults to have sex with anyone when, among other things,

at the time of the sexual assault, the victim indicates by speech or conduct that there is not freely given consent to performance of the sexual act.

But earlier this month, in State v. Lisasuain, the New Hampshire Supreme Court interpreted this "aggravated sexual assault" provision as potentially covering even conduct where the victim remains totally passive. (Other provisions of the aggravated felonious sexual assault statute already deal with the situation where passivity, or even active cooperation, is gotten as a result of "the actual application of physical force, physical violence or superior physical strength," a "threat[] to use physical violence or superior physical strength on the victim," the victim's being "physically helpless to resist," and the like, so here we are talking about passivity without such force or threat.) There is language in the opinion that suggests this logic might be limited to situations where the victim is underage, and the defendant is a family friend, so that the victim might have been shocked into passivity. But the opinion might also potentially extend to other situations, too, so that the requirement of "indicat[ing] by speech or conduct that there is not freely given consent" could generally be satisfied by passivity.

Here is an excerpt of the facts, as alleged by the prosecution and as presumably accepted by the jury (paragraph breaks added):

In October 2010, the 14-year-old victim was living with her mother and her siblings in Manchester. The 46-year-old defendant, a family friend, had been staying at the home a few nights each week after he had to move out of his cousin's apartment.

On October 23, the victim returned home from serving a school detention. No one was home and the victim lay down on the couch to watch television. The defendant arrived at the home and went over to the couch. The victim moved her feet so he could sit and then he said she could put her feet back. The defendant asked her if she liked foot rubs and she stated, "Yeah. My nanna gives them to me all the time." The defendant started rubbing her feet. The victim "didn't know what to think" when the defendant started giving her a foot rub, but "since [her] nanna gave them to [her] all the time, [she] didn't really think anything weird because … he was [her] dad's best friend [and] … [she] didn't look at him as a complete stranger."

The defendant then asked if she ever got her toes sucked. She responded, "No." The victim thought the defendant's inquiry "was weird." When the defendant started sucking on her toes, the victim "was in shock."

The defendant told the victim that she was "dangerously beautiful," to which she did not respond because that scared her. The defendant told her that "he was going to tear [her] up," which the victim thought was "a sexual term," although she "didn't know exactly what he meant by it." The defendant had moved off the couch and he was "on his knees" below where the victim's head was on the couch. The defendant asked her "if he could go lower." The victim "assumed that he was talking about [her] vagina," but she didn't answer him because she "couldn't believe what was going on." The defendant then pulled her pants and underwear down and "moved [her] legs … on his shoulders or above his shoulders."

The victim did nothing to help him and did not say anything. The defendant performed cunnilingus on her and penetrated her vagina with his fingers. He stopped when he got a telephone call and then he left.

Now, as I mentioned, this is clearly statutory rape, and thus felonious sexual assault, because the victim was under 16 (the relevant age of consent in this situation). But the court went on to conclude that it was also aggravated felonious sexual assault, because the victim's "[doing] nothing to help him and … not say[ing] anything" constituted "indicat[ing] by speech or conduct that there is not freely given consent":

Black's Law Dictionary defines "conduct" to mean "[p]ersonal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person's deeds." Black's Law Dictionary 358 (10th ed. 2014) (emphasis added). In this context, Webster's Third New International Dictionary defines "indicate" as meaning "to show the probable presence or existence … of: give fair evidence of: be a fairly certain sign or symptom of: reveal in a fairly clear way." Webster's Third New International Dictionary 1150 (unabridged ed. 2002).

As the trial court found:

Here, the 14-year-old victim's non-participation in the sexual acts performed on her by the 46-year-old defendant provides sufficient evidence of non-consent. When the defendant began to suck her toes; the victim did nothing. She did not give the defendant permission to suck her toes or help him to do so in any manner. The victim testified that she was too shocked by the defendant's action to say or do anything[.]

Next, when the defendant asked if he could "go lower," the victim again did nothing. The victim did not take off her pants or underwear, she did not spread her legs open, she did not turn her body on the couch, and she did not put her legs on his shoulders. Instead, it was the defendant that physically did each of these acts to the victim without her aid.

Finally, the victim did not respond to the defendant in a way that an intimate partner might respond. The victim did not discuss the sexual activity with the defendant, she did not make any verbal sounds suggesting she was participating in the activity, she did not touch the defendant or physically respond to him in any way.

After reviewing the record we hold that, taking into account the totality of the circumstances, the evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that the victim's conduct, in failing to respond in any way, indicated that she did not consent to the sexual assaults by the defendant. See also RSA 632-A:6, III ("[a] jury is not required to infer consent from a victim's failure to physically resist a sexual assault").

2. I appreciate the court's argument, but I think that on balance this is likely not the best interpretation of the statute. Whatever one thinks the law ought to be, the legislature provided that aggravated felonious sexual assault required the alleged victim's "indicat[ing] by speech or conduct that there is not freely given consent." And the legislature did so in a statute that, in relevant part, isn't limited to sex with minors, but instead applies equally to sex with adults.

In a criminal statute, it seems to me, an alleged victim's "indicat[ing]" something must mean that a defendant had interpreted (or at least should reasonably have interpreted) the statement as so indicating. If, for instance, a statute provides that trespass consists of a defendant's going on a person's property when the property owner "indicat[ed] by speech or conduct that there is not freely given consent" to such an action, it can't be enough that the property owner said something that he thought meant "stop." The focus must be on whether the visitor realized that the property owner was so indicating, or at least whether a reasonable visitor should have realized this.

And we need to couple that with the constitutional requirement that the state must prove beyond a reasonable doubt every element of the crime. The state must therefore be able to prove beyond a reasonable doubt that a reasonable person should have understood the alleged victim's actions as showing absence of consent. Passivity, absent any threat of force, shouldn't suffice to prove this element beyond a reasonable doubt.

If the New Hampshire legislature wants to enact a law that makes it an aggravated felony to have sex with someone unless "at the time of the sexual assault, the victim indicates by speech or conduct that there is freely given consent to performance of the sexual act," it could do so. There is a lively debate about whether this would be a better way of defining rape.

But the legislature deliberately enacted a law that made it an aggravated felony to have sex with someone if "at the time of the sexual assault, the victim indicates by speech or conduct that there is not freely given consent to performance of the sexual act." An alleged victim's being passive—and, again, passive without the defendant's use or threat of physical force—is a reaction that is broadly consistent both with absence of consent and presence of consent (even if not necessarily enthusiastic consent). In such a situation, passivity shouldn't satisfy the statutory requirement of the victim's "indicat[ing] by speech or conduct that there is not freely given consent," especially since the defendant's guilt must be shown beyond a reasonable doubt.

3. The state's strongest factual argument here, I think, is that the girl was 14, and the man was a family friend, and that's why "she was too shocked by the defendant's action to say or do anything." And, again, the behavior here would be a crime (felony statutory rape) even if the girl was both verbally and physically enthusiastic about the sexual behavior. There is thus no worry on the facts of this case that otherwise noncriminal behavior would be turned into an aggravated felony even if the court should have interpreted the "indicat[ing] by speech or conduct that there is not freely given consent" as excluding passivity.

But I don't think the court's opinion clearly limits itself to such behavior; instead, it could well apply to sexual behavior among adults. And, for the reasons I mentioned, I don't think that one partner's seduction attempt that the other partner reacts to passively should generally fit within the statute.

Finally, note that the same issue could also arise, at least if there is a complaint and if the prosecutor is willing to prosecute, in other contexts; among others, these would include if a woman performs oral sex on a man and the man is passive (the flip side of what happened here), a man performs oral sex on a man, or a woman performs oral sex on a woman.