Augustin v. United States, 240 A.3d 816

Background

Appellant (33, teacher/coach) had a brief, amorous relationship with A.G., then 17, involving frequent office visits, several prolonged "intense" hugs (8–10) and about five kisses over a few weeks in 2016.
Hugs: described by A.G. as tight, up to 4–5 seconds, chest-to-chest contact over clothing; no testimony of caressing, groping, touching under clothing, erection, or hands on breasts or below the waist.
Text messages between appellant and A.G. were sexually explicit and showed appellant’s desire for sex and anticipation of A.G. turning 18.
Bench trial: judge convicted appellant of misdemeanor sexual abuse of a minor (MSA‑M) based on the hugs and of simple assault based on kissing; acquitted on a different MSA charge.
On appeal, appellant challenged (a) whether hugging satisfied the statutory "touching" element and the intent element of MSA‑M, and (b) whether A.G., age 17, was legally incapable of consenting to the kissing such that simple assault could be proven.
Decision: VACATED MSA‑M and REMANDED for new findings on intent; REVERSED simple assault (court concluded the record shows consent and that the age‑of‑consent rule for simple non‑violent sexual touching remains 16).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "touching" in D.C. Code § 22‑3010.01(b) requires tactile/intentional feeling (actus reus) for MSA‑M	Gov't: § 22‑3010.01(b) covers body contact that brings the actor into contact with breasts/genital area; ordinary meaning of "touching" includes contact; statute meant to be broad	Appellant: "touching" should be limited to tactile acts (hands/fingers/genitals) — mere chest‑to‑chest hugs insufficient	Court: "touching" need not be limited to tactile feeling; statute read in context covers non‑tactile body contact, but limitation comes from intent language (must be intended to or reasonably cause sexual arousal)
Whether evidence was sufficient to prove appellant hugged A.G. with intent to obtain sexual gratification (mens rea for MSA‑M)	Gov't: totality of relationship, explicit sexual texts, and intimate prolonged hugs support inference of sexual intent	Appellant: hugs alone are insufficient; judge relied on a misremembered fact (kiss on neck during hug) and there was no direct evidence of sexual intent during hugs	Court: Evidence could support an inference of sexual intent, but trial judge based verdict partly on a factual error and did not explicitly weigh the text messages; remand required for judge to make fresh findings on intent
Whether consent is unavailable for simple non‑violent sexual touching when complainant is 17 because of 2007 ASAA amendments (age of consent 18)	Gov't: 2007 ASAA amendments raising protections for "minors" to under 18 mean a minor cannot consent to sexual advances by someone in a significant relationship	Appellant: ASAA amendments precluded consent only for the new ASAA offenses (MSA‑M etc.), not for common‑law/simple assault; common‑law age of consent for non‑violent sexual touching remains 16	Court: The Council did not abrogate the common‑law consent rule for non‑ASAA simple assault; age of consent for simple non‑violent sexual touching remains 16; here the record shows A.G. consented, so conviction reversed

Key Cases Cited

Davis v. United States, 873 A.2d 1101 (D.C. 2005) (discusses ASAA structure and consent preclusion in child‑specific ASAA provisions)
Mungo v. United States, 772 A.3d 240 (D.C. 2001) (defines non‑violent sexual touching assault and mens rea differences from ASAA offenses)
Jenkins v. United States, 506 A.3d 1120 (D.C. 1986) (recognizes age‑of‑consent common‑law principle and consent defense where complainant was 17)
Jones v. United States, 990 A.2d 970 (D.C. 2010) (states sixteen is the age of consent for common‑law sexual touching offenses)
Hood v. United States, 28 A.3d 553 (D.C. 2011) (statutory interpretation principles; review de novo for undefined terms)
Lihlakha v. United States, 89 A.3d 479 (D.C. 2014) (appellate limits on making independent fact findings; remand when trial court must reassess facts)
Foster v. United States, 699 A.2d 1113 (D.C. 1997) (remand principles when trial court's factual basis is unclear)