State v. R.P.

In reviewing this record, as we must, in light most favorable to the prosecution, I am unable to conclude that there was insufficient evidence to find each element of indecent liberties.State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). For that reason I dissent. *Page 737

The trial court here found that this second sexual encounter with a young girl occurred after track practice at a junior high school. The victim and the defendant were waiting for their respective rides when the defendant picked the girl up against her will and placed her down in an area where he hugged and kissed her and eventually gave her a "hickey" on her neck. The defendant was restraining the girl during this time. The hickey was visible for more than 1 week.

A person is guilty of the crime of indecent liberties

when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion; . . .

RCW 9A.44.100(1)(a).

"Sexual contact" is defined as

any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.

RCW 9A.44.010(2).

The defendant here challenged the trial judge's determination that defendant's lips sucking upon the victim's neck so as to result in a hickey constituted sexual contact.

The determination of which anatomical parts other than genitalia and breasts are "intimate" is a question to be resolved by the trier of fact. In re Adams, 24 Wn. App. 517, 520,601 P.2d 995 (1979). The court in Adams held that hips are a sufficiently intimate part of the anatomy that nonconsensual touching of them is prohibited — particularly if the touching is incidental to other activities which are intended to promote sexual gratification of the actor. Adams, 24 Wn. App. at 520.

I agree with the trial court in this case that defendant's act of holding the victim down against her will, kissing her, hugging her and then sucking a hickey onto her neck was sexual contact.

For that reason, I dissent.

DOLLIVER and JOHNSON, JJ., concur with ANDERSEN, C.J. *Page 738