dissenting: It appears to me that the “circumstance” alleged to support the misdemeanor sexual assault conviction requires proof of sexual penetration in fact. RSA 632-A:4 (1986) does not punish all sexual contact with a person thirteen years of age or over, nor even all unprivileged or unwanted sexual contact. It makes the contact a misdemeanor sexual assault only under the circumstances named in RSA 632-A:2 (1986) (current version at RSA 632-A:2 (Supp. 1994)). The State based its charge on circumstance IX: “[w]hen the actor through concealment or by the element of surprise is able to cause sexual penetration with the victim before the victim has an adequate chance to flee or resist.” RSA 632-A:2, IX (emphasis added). Thus concealment or surprise alone does not satisfy the circumstance. It must be concealment or surprise that enables the actor to cause sexual penetration.
The legislature said precisely what it meant. It did not intend to convert a simple assault, “[pjurposely or knowingly causing] . . . unprivileged physical contact to another,” RSA 631:2-a (1986), into a , sexual crime for the myriad of unwanted sexual contacts that occur in society to victims thirteen years of age or older. It did not intend this result even when the actor used concealment or surprise. It intended to require some relatively serious aggravators for this conversion. The circumstance IX aggravator rises to this level only when the concealment or surprise results in sexual penetration in fact. A review of the eleven aggravator circumstances set forth in RSA 632-A:2 discloses no other instance where the circumstance act requires a causal result. The causal result in circumstance IX is there for the purpose of defining the circumstance.
Nor does circumstance IX become meaningless. The sexual penetration necessary to trigger the circumstance need not involve a mens rea. If it was knowing or purposeful the correct charge would be aggravated felonious sexual assault. RSA 632-A:2, IX. The triggering penetration may be accidental in the course of sexual contact. In that case, circumstance IX would be a proper basis for a misdemeanor sexual assault charge. RSA 632-A:4.
The jury should have been required to find sexual penetration in fact to convict in this case. I would reverse. Accordingly, I respectfully dissent.