Indiana Court of Appeals Holds Kissing Sleeping Victim is Not Sexual Battery

The Indiana Court of Appeals has reversed a man's conviction for sexual battery, finding that kissing a sleeping victim does not meet the definition of sexual battery in Indiana. In this case a woman and two men had been watching television. The two men went to purchase more alcohol and the woman fell asleep while they were gone. She awoke to one of the men kissing and licking her face. The man was arrested and charged with sexual battery, a Class D felony.  He was convicted at trial and appealed.

The Indiana Court of Appeals reversed the man's conviction for sexual battery, finding that a sleeping person was not mentally disabled or deficient, as required by the Indiana sexual battery statute. Sexual battery is a sex crime in Indiana, which requires a convicted person to register as a sex offender. To convict a person of sexual battery, the State must prove that a person, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches another person when that person is (1) compelled to submit to the touching by force or the imminent threat of force or (2) so mentally disabled or deficient that consent to the touching cannot be given.  In this case, the State argued that the sleeping woman was "so mentally disabled or deficient that consent could not be given", because she could not consent if she was asleep. The Court of Appeals noted that lack of consent is not an element of sexual battery; it is the inability to give consent that is required to show mental disability or deficiency.  The Court held that sleep is not the equivalent to a mental disability for purposes of the sexual battery statute and reversed the man's conviction.

Sexual battery is a Class D felony and carries a penalty of 6 months to 3 years in prison. Sexual battery is also a sex crime in Indiana which requires one convicted of the offense to register as a sex offender. Certain acts that involve a sex-related touching are not sufficient to convict someone of sexual battery. If you are charged with sexual battery, you should contact an experienced Indiana criminal attorney immediately.