Massachusetts Appeals Court Affirms Sex Conviction in the Case of the Naked Kiss

The Massachusetts Appeals Court today upheld a man’s conviction for indecent assault and battery, ruling that the defendant’s naked kiss planted on the lips of an unsuspecting sleeping woman constituted an indecent act.  The name of the case is Commonwealth v. Benedito

The 23-year-old victim went to her sister’s home one evening and arrived just before midnight.  After realizing her sister and her sister’s boyfriend (the 42-year-old defendant) were in bed, the victim fell asleep fully clothed on a couch in the living room.  When she woke up, the victim realized the defendant, who was naked, was kneeling next to the couch and kissing her on the lips.  The victim angrily confronted him and the defendant said he could not help himself.  The victim told her sister what the defendant had done and the defendant apologized.  The victim and her sister reported the defendant to the police and he was charged with indecent assault and battery on a person over the age of 14.  Following his conviction, the defendant appealed.

The defendant argued his conduct did not satisfy the legal definition of “indecent” and he therefore should not have been convicted of a sex crime.  Massachusetts courts have ruled behavior is indecent if it is fundamentally offensive to contemporary moral values.  If common sense tells us that the conduct is immoral, improper, and immodest, it qualifies as indecent.  Most cases charging indecent assault and battery allege the defendant has touched an area of the victim’s body that has been traditionally considered private.  However, this is not the first case where a defendant has been charged with indecent conduct based on an unwelcome kiss.  The Appeals Court noted that prior cases have recognized the mouth as an intimate part of the body, and in some circumstances, touching another’s mouth will be considered indecent.  This is one such case.  The defendant’s uninvited kiss happened when the victim was asleep and incapable of initially registering her objection. The defendant was completely naked and hovering over the victim during the kiss and he was nearly two decades older than her.  Massachusetts appellate courts have previously affirmed convictions for indecent assault and battery where a defendant forcefully inserted his tongue in the victim’s mouth during a kiss and where there was a substantial disparity in the ages of the parties.  The context of the kiss and the defendant’s age were proper considerations in this case.  The defendant’s comments immediately after the assault, that he couldn’t help himself and didn’t know what he was doing, were inappropriate and could be properly considered in determining whether his conduct satisfied the legal definition of “indecent.”  Finally, it was proper for the trial judge to consider whether the defendant had any sort of relationship with the victim (he didn’t – he had been dating the victim’s older sister at the time of the assault).  The Appeals Court ultimately determined that the defendant’s creepy behavior violated contemporary moral values, and his conviction for indecent assault and battery was upheld.  The defendant will likely now be required to register as a sex offender.