863 S.E.2d 886
Va. Ct. App.2021Background:
- Victim J.A., born Jan. 15, 2004, was 14 at the time of the charged conduct in March 2018.
- Prior interactions: appellant knocked on bathroom door while J.A. was showering and later displayed an explicit photo; he also made a sexually suggestive comment in the house.
- On March 10, 2018, J.A. fell asleep on a cousin’s living room couch and awoke to the appellant’s hands down her pants touching her genitals; she reported the incident to police.
- Appellant testified he merely touched her leg while retrieving a TV remote and denied sexual intent.
- Charged with aggravated sexual battery under Va. Code § 18.2-67.3(A)(4)(a) (victim at least 13 but less than 15 and act accomplished by force, threat, or intimidation); convicted and sentenced to 20 years, 16 suspended.
- On appeal, appellant argued the evidence was insufficient to prove he used force because the touching began while the victim was asleep; the Court of Appeals affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved the element that the act was "accomplished against the will by force, threat, or intimidation" where the touching began while the victim slept | Constructive force applies: a sleeping victim cannot consent, so lack of consent establishes the force element; alternatively, duration showed actual force | No actual force: because the victim was asleep when contact began, the Commonwealth failed to prove force, threat, or intimidation; constructive force is inadequate | The court held that a sleeping victim cannot consent; lack of consent establishes constructive force and satisfies the force element for aggravated sexual battery; conviction affirmed |
Key Cases Cited
- Martin v. Commonwealth, 272 Va. 31 (interpreting "force" to include actual and constructive force in sexual-offense context)
- Wactor v. Commonwealth, 38 Va. App. 375 (discussing constructive force and lack-of-consent analysis for sexual offenses)
- Jones v. Commonwealth, 219 Va. 983 (prosecution need not prove positive resistance where act is without consent)
- Bailey v. Commonwealth, 82 Va. 107 (common-law principle that lack of consent supplies the force element)
- Woodward v. Commonwealth, 12 Va. App. 118 (recognizing sexual intercourse with sleeping victim can constitute rape via physical helplessness)