State v. Turner

*165JOHNSON, J., dissenting.

I concur with the majority that there is no basis for defendant’s contention that a child’s undeveloped breasts are not as a matter of law "sexual or intimate parts” under ORS 163.305(7). The motion for acquittal was properly denied. I disagree that this is not a question of fact for the jury. The majority states that "the appeal of this approach [i.e. question of fact for the jury] is that it allows judges to avoid tough questions of law * * *. The doctrine is superficially appealing, but it does not stand analysis.” To the contrary, the appeal of the approach is that it is dictated by the statute. I agree that the result is unsound, but this does not give courts legislative license to rewrite the statute to conform it to our views of what is sound.

The legislative history indicates that the purpose of ORS 163.425 was to encompass several types of behavior, including fondling. This could have been accomplished by a statute which merely prohibited unconsented touching for the purpose of arousing or gratifying sexual desire. The legislature, however, chose to add an additional element that the touching must be "of the sexual or other intimate parts of a person.” The rules of statutory construction, which the majority ignores, is that if the statute is silent as to what constitutes an intimate part, then this is a question for the jury. There is nothing vague about the term "intimate.” Common, if not universal, use of the English language would indicate in this context that the term refers to any part of the body which a reasonable person could deem as private with respect to a salacious touching by another. The suggestion that the statute is unconstitutionally vague is a fallacious pretense to justify a legislative rewriting of the statute by the court. To ask a jury to determine whether a reasonable person would consider a part of the body to be intimate is no greater delegation of legislative power than it is to ask a jury, for example, *166to determine whether a person has been criminally negligent.1

The fallaciousness of the majority reasoning is compounded by its conclusion that while certain parts of the body are as a matter of law intimate, other "anatomical areas” can be determined to be intimate by the jury. In other words, in order to satisfy its stated concern that the statute is unconstitutionally vague, the majority has written into the statute that certain parts of the body are as a matter of law intimate, but as to the intimacy of other parts, this is delegated to the jury to determine. Presumably the majority is concerned about this latter area, although in State v. Buller, 31 Or App 889, 571 P2d 1263 (1977), we held it was for the jury to determine whether clothed buttocks were intimate parts.

Even if there is an ambiguity in the statute, the legislative history makes it clear that the determination of whether any part of the body is intimate is for the jury. The Code Commentary states:

"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.
* * * *
"The precise meaning of 'other intimate parts’ is not defined in the draft and the intent of the Commission is for the triers of the fact to determine what parts of the body are 'intimate.’ ” Proposed Oregon Criminal Code 122-23, Commentary, § 116 (1971).

*167For the reasons stated above, I would also overrule our opinion in State v. Pagel, 16 Or App 412, 518 P2d 1037, rev den, cert den 419 US 867 (1974). The result in that case was correct.

I respectfully dissent.

ORS 161.085(1) defines criminal negligence as follows:

" 'Criminal negligence’ or 'criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”