Massachusetts Appeals Court Rules a Long Hug Combined with Ear Licking Constitutes Sexual Assault

The Massachusetts Appeals Court today upheld the sexual assault conviction against a 58-year-old man who tightly hugged a 13-year-old girl and licked her ear.  The name of the case is Commonwealth v. Colon.

In 2015, the defendant and the victim were together with around a dozen other people at a barbecue.  The defendant was distantly related to the victim’s stepfather.  The victim was uncomfortable because the defendant, who she had not previously met, was looking at her in an inappropriate way.  When the victim was in the process of leaving, she found herself alone with the defendant, who requested a hug.  After the victim hugged the defendant, he grabbed onto her and wouldn’t release his grip.  The defendant then licked the victim’s ear, including around her multiple ear piercings, and stuck his tongue inside her ear.  After the assault continued for a prolonged period of time, one of the victim’s family members called her name and the defendant pushed her away.  The defendant waived his right to have a jury trial and instead elected for a judge to hear his case.  The judge found the defendant guilty of indecent assault and battery on a child under the age of 14 and sentenced him to jail.  He appealed, arguing that the indecent assault and battery statute: (1) does not apply to ear licking; and (2) is unconstitutionally vague.  The Appeals Court affirmed.

There was no dispute that the victim in this case was under the age of 14, and that the defendant intentionally touched her without legal justification (which are the first two elements of indecent assault and battery on a person under the age of 14).  The question on appeal was whether the touching was “indecent.”  While the touching of some parts of the body (such as the pubic area, the buttocks, or a woman’s breasts) is obviously indecent, Massachusetts appellate courts have held that the touching of other non-sexual body parts may also qualify as indecent depending on the context of the act.  For example, the Appeals Court has previously ruled that the mouth is an intimate body part – inserting a tongue into an unwilling participant’s mouth can therefore constitute indecency.  To establish an assault and battery is indecent, the Commonwealth must prove the touching is fundamentally offensive to contemporary moral values and it carries sexual overtones.  When viewing the defendant’s conduct in context, it satisfies the definition of indecency in part because of the age disparity between the defendant and the victim and the fact that they had never met before the date of the assault.  Further, the Appeals Court pointed out that ear licking is not ordinary behavior between people who do not have an intimate relationship.  The only reasonable conclusion is that the defendant’s behavior was sexual in nature.

Finally, the Appeals Court rejected the defendant’s argument that the term “indecent” is so vague that he would not have understood that licking a 13-year-old girl’s ear would qualify.  The defendant’s conduct was fundamentally offensive because of its sexual overtones.  He should have understood he was committing a sexual assault.