Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
NOVEMBER 12, 2002
A short while later when A.M. went to the bathroom, A.M. discovered she
was bleeding as a result of Defendants actions. That night, A.M. told
her mother she was bleeding, but initially told her mother that she had
fallen on something. A.M. later told her mother about the actual events
of that afternoon, and A.M.s mother took her to the hospital. At
the hospital, Dr. Gregory Wall examined A.M. and found her injuries to be
indicative of sexual abuse. Dr. Wall contacted child protective services, and an
investigation into the incident ensued thereafter. During this investigation, C.P. came forward
with her own allegations that Defendant had fondled her on many occasions.
Defendant was arrested and charged with two counts of child molesting based on
the investigations findings. Count I charged him with molesting A.M. as a
Class A felony, and Count II charged him with molesting C.P. as a
Class C felony.
Defendant was convicted of Count I and found not
guilty of Count II. He was sentenced to fifty years.
Defendant appealed his conviction to the Court of Appeals which reversed the trial
DPaffo v. State, 749 N.E.2d 1235 (Ind. Ct. App. 2001).
We granted transfer, 761 N.E.2d 416 (Ind. 2001) (table), and now affirm the
(a) A person who, with a child under fourteen (14) years of age,
performs or submits to sexual intercourse or deviate sexual conduct commits child molesting,
a Class B felony. However, the offense is a Class A felony
it is committed by a person at least twenty-one (21) years
(b) A person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the child or
the older person, with intent to arouse or to satisfy the sexual desires
of either the child or the older person, commits child molesting, a Class
The language of subsections (a) and (b) are strikingly different. Subsection (b)
includes additional language that refers to a specific mental state that the defendant
must have at the time of the alleged touching or fondling: the intent
to arouse or to satisfy the sexual desires of either the child or
the older person
. The intent to arouse or satisfy element is not
present in subsection (a)s proscription of child molesting by sexual intercourse or deviate
sexual conduct. (As noted supra, Defendant here was convicted under subsection (a).)
There is another difference between subsections (a) and (b). The conduct proscribed
by subsection (a) sexual intercourse and deviate sexual conduct both contain
the adjective sexual; the conduct proscribed by subsection (b) touching and fondling
does not. In fact, an inspection of all the crimes in
the sex crimes chapter of the criminal code reveals that where the statutory
language does not include the intent to arouse or gratify sexual desires language,
the specific conduct proscribed usually involving sexual intercourse or deviate sexual conduct
includes the adjective sexual.
There are two opposing inferences that can be drawn from this pattern of legislative drafting. The first is that the Legislature intended for the State to prove the additional intent element only where the Legislature uses the explicit intent to arouse or satisfy sexual desires language (generally, where the proscribed conduct involves touching or fondling) but not where it does not (generally, where the proscribed conduct involves sexual intercourse or deviate sexual conduct). This is equivalent to the position the State urges in this appeal.
The second inference is that the Legislature did not see a need to
spell out the additional intent element in the offenses involving sexual intercourse and
deviate sexual conduct because that concept is already embodied in the use of
the adjective sexual. This is equivalent to the position the Defendant urges
and the Court of Appeals adopted in this appeal and in
We adopt the position advanced by the State and hold that intent to
arouse or satisfy sexual desires is not an element of Ind. Code §
35-42-4-3(a). We believe that the structure of Ind. Code § 35-42-4-3 and
of the other crimes in the sex crimes chapter of the criminal code
are best understood to include the "intent to arouse or satisfy sexual desires"
element only where it is expressly set forth. What is at stake
here is whether the Legislature meant to criminalize all sexual intercourse and deviate
sexual conduct with children or only that performed with intent to arouse or
satisfy sexual desires. We think it more likely that the Legislature meant
to criminalize such conduct performed, for example, to perpetrate revenge or to coerce
a parent to take some type of action, in addition to conduct performed
to arouse or satisfy sexual desires.
We believe this reading is at least consistent with, if not compelled by, our decision in Canaan vs. State, 541 N.E.2d 894 (Ind. 1989). The defendant in that case was convicted of attempted criminal deviate conduct. See footnote The evidence in the case showed that he had stabbed the female victim multiple times and that several of the wounds were close to, but had not penetrated, her vagina. Arguing that the evidence was insufficient to support the conviction, the defendant argued that, at most, the evidence only showed an undifferentiated intent to stab his victim multiple times but no intent whatsoever to achieve any sexual gratification. We held that there was no element of sexual gratification in the crime of deviate sexual conduct. As such, the fact that the jury could infer from the placement and direction of stab wounds an intent to penetrate the vagina itself constituted sufficient evidence of intent to commit deviate sexual conduct even in the absence of any evidence that the stabbing was performed with an intent to arouse or satisfy sexual desires. Id. at 907. We found it to be the Legislatures intent that rape and other types of sexual attacks are not crimes of passion or sexual gratification, but rather, crimes of violence. Id. at 908. See also Hughes vs. State, 600 N.E.2d 130, 132 (Ind. Ct. App. 1992) (Rape is a crime of violence, not a crime of passion.) (Rucker, J.).
We acknowledge that our interpretation of the statutory language used by the legislature
can cause some difficulty when considering the definition of deviate sexual conduct in
the context of medical or personal hygiene related examinations and procedures. As
we have discussed, the term deviate sexual conduct is defined in Ind. Code
§ 35-41-1-9 as an act involving
the penetration of the sex organ or anus
of a person by an object. And the definition of the term
object includes the use of ones fingers. Stewart v. State, 555 N.E.2d
121, 126 (Ind. 1990), overruled on other grounds by Lannan v. State, 600
N.E.2d 1334 (Ind. 1992). (Indeed, the use of fingers formed the basis
of Defendants prosecution in this case.) In holding that the intent to
arouse or satisfy sexual desires is inherit in the legislatures use of the
terms sexual intercourse and deviate sexual conduct, Judge Sharpnack wrote:
For example, if an intent to arouse or satisfy the sexual desire was
not inherent in the definition of deviate sexual conduct, medical examinations, such as
a colonoscopy or gynecological examination, would arguably fit within the definition.
Jaco v. State, 760 N.E.2d 176, 181 (Ind. Ct. App. 2001), vacated in relevant part, - N.E.2d -, No. 32S05-0211-CR-612 (Ind. November 12, 2002).
It is well established that conviction of child molesting requires the State to prove beyond a reasonable doubt criminal intent on the part of the defendant. Louallen v. State, - N.E.2d -, No. 58S05-0211-CR-613 (Ind. November 12, 2002); Snider vs. State, 468 N.E.2d 1037, 1039 (Ind. 1984); Newton vs. State, 456 N.E.2d 736, 745 n. 1 (Ind. Ct. App. 1983). Where the evidence warrants an inference that an alleged penetration of the sex organ or anus of a person by an object was in furtherance of a bona fide medical or personal hygiene-related examination or procedure, we believe that defendant would be entitled to an appropriate instruction as to criminal intent. We do note that no such issue is raised by this case as Defendant claims not to have committed the alleged conduct at all.
We conclude that the elements of the crime of child molesting under Ind. Code § 35-42-4-3(a) do not include the intent to arouse or satisfy sexual desires. We therefore disapprove the opinions of the Court of Appeals on this issue in Bear v. State, 772 N.E.2d 413, 418 (Ind. Ct. App. 2002), transfer denied; Scott v. State, 771 N.E.2d 718, 728 (Ind. Ct. App. 2002), transfer denied, 2002 Ind. Lexis 799 (2002); Jaco, 760 N.E.2d at 181; and Clark, 728 N.E.2d at 885.