AN OFFENSIVE PHYSICAL CONTACT ASSAULT FOR THE TIMES.
Posted by: Edmund R. Folsom, Esq.
Date: May 22, 2018
State v. Leon, 2018 ME 70, is a criminal case for the times. The defendant’s appeal was shot down under the well-settled law that a jury’s verdict may not ordinarily be unsettled by evidence of things that occur during deliberations. The more interesting aspect of the case is its facts.
On October 24, 2016, Leon was 65 years old. He stopped into a fast food place in Sanford that day to fill his water bottle and make a purchase while his wife waited outside in the car. Inside the fast food place, a 15-year-old female placed an order, stepped away from the counter and focused on her cell phone while the order was being prepared. Leon filled his water bottle, walked over to the female, placed his hand on her back and told her that “her jeans looked nice…nice and tight in all the right places.” This, very predictably, “grossed out” the 15-year-old, who immediately texted her mother waiting outside in the car. Mom entered the fast-food joint, confronted Leon and then called 911. Leon ended up charged with assault.
Assault is defined as follows: A person is guilty of assault if…[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person. 17-A M.R.S. §207(1)(A). In criminal law, always look to the lowest culpable mental state and the least that is required in the way of conduct to commit the crime. Anything more is just prosecutorial gravy. Assault is committed when one person recklessly causes offensive physical contact to another person. The Law Court defines “offensive physical contact” as “what a reasonable person might perceive to be offensive as well as the victim’s subjective interpretation of the contact.” Leon at ¶1, n. 1 (I know, that’s a bit awkward, but I’m just quoting the Law Court). As for what is meant by “recklessly” causing offensive physical contact, the term “recklessly” is defined as follows: “A person acts recklessly with respect to a result of the person’s conduct when the person consciously disregards a risk that the person’s conduct will cause such a result…A person acts recklessly with regard to attendant circumstances when the person consciously disregards a risk that such circumstances exist…For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” 17-A M.R.S. §34(3)(A)-(C).
From this, you can see that the “offensive physical contact” prong of assault takes the temperature of prevailing social norms, in addition to taking account of the more concrete setting and circumstances in which the contact occurs. When we define crimes, we make a judgment that the defined conduct, combined with the defined mental state, justifies if not requires application of the state’s police, prosecutorial, judicial/punishment apparatus. Leon was found guilty of assault by a jury of his peers. The court fined him $300.00 and sentenced him to a suspended 60-day jail sentence, with one year of administrative release and an order to undergo psychological and sexual harassment counseling. Personally, I have never understood touchy types. I don’t get it when someone who is not a friend or a relative puts his or her hand on my back, or arm, or shoulder. My feeling about it is, “Aww, come on… hands off.” I guess you could say I find the physical contact offensive. And I don’t know how Leon, especially as a 65-year-old stranger to the 15-year-old girl, could have thought his comment about the tight fit of her jeans would ever be well received. In that context, it isn’t hard to conceive that his hand on her back was offensive. Leon’s words themselves must also have been offensive, but the words were not a crime. The hand on the back, in the context of the words, was a crime.
The jury had to have found that Leon consciously disregarded the risk that putting his hand on the kid’s back would be offensive and that his disregard of that risk involved a gross deviation from the standard of conduct that a reasonable and prudent person would have observed in the same situation. I bet a lot of people would be surprised that the hand on the back was a criminal assault. To those people, I say: Be on notice! What was merely annoying yesterday might well be a crime today.