Supreme Court wrestles with penal code in sex with minor case
In a case that tied the Supreme Court of Kentucky in knots over the question whether “fisting” could be prosecuted as a “sexual activity,” the court ruled 6-1 to uphold the conviction of Kevin Ray Hillard for paying a 15-year-old youth to fist him.
A dissenting judge criticized the court for trampling fundamental due process rights of the defendant in its eagerness to find grounds for upholding his conviction in the February 17 ruling.
The defendant, Kevin Ray Hillard, was convicted by an Ohio County Circuit Court jury of one count of “unlawful transaction with a minor in the first degree,” a felony, for inducing A.W., the teenager, to engage in “illegal sexual activity.” He was also convicted on a misdemeanor charge for serving an alcoholic beverage to another minor. He was sentenced to 20 years in prison on the felony charge.
The charges arose from a party Hillard, then 29, hosted in his home in Beaver Dam in 2001, at which the guests included four or five other adults and two teenage boys, A.W. and N.M. At trial, A.W. testified that he and Hillard were in the bathroom together and Hillard offered him $20 to “fist” Hillard. A.W. agreed, removed a condom from his pocket and stretched it over his fist. Hillard bent over the bathtub and A.W. testified that he inserted his fist, at which point the man asked him to hit him and call him names while continuing the fisting. Another witness testified that Hillard later told her that A.W. had “fisted” him and that it “felt great.”
The court’s decision does not relate how this activity came to the attention of the law. However, having heard about Hillard’s party, the local prosecutor subpoenaed N.M. and one of the adults.
Hillard appealed his conviction on many grounds, including the argument that that the evidence did not support a conviction on illegal sexual activity, and that the prosecutor acted illegally by issuing a subpoena to potential witnesses and then threatening them with perjury prosecutions to get them to talk. N.M. testified that he felt intimidated by that action.
In rejecting Hillard’s appeal, Justice William Cooper was faced with a basic difficulty. The “unlawful transaction” statute does not define “illegal sexual activity,” and the trial judge apparently assumed that what Hillard and A.W. did qualified and instructed the jury that if they found A.W.’s testimony accurate, they must convict Hillard.
However, in examining other sections of the penal code to determine whether fisting was an ‘illegal sexual activity,’” the appeals court found that Kentucky legislators had not contemplated this activity specifically in drafting their law. A prostitution statute applies to “sexual conduct,” defined it as “sexual intercourse or any act of sexual gratification involving the sex organs,” which in Kentucky does not include the anus. There is also a statute covering various kinds of “deviate sexual intercourse,” defined as “any act of sexual gratification involving the sex organs of one person and the mouth or anus of another,” but again a sex organ has to be involved. There is also a provision expanding the definition of deviate sexual intercourse to include “penetration of the sex organs of one person by a foreign object manipulated by another person,” but “foreign object” does not include a fist, and the anus does not qualify as a sex organ.
Finally, the court settled upon a statute that might make the conduct illegal. The misdemeanor of “sexual abuse in the third degree” covers “sexual contact,” defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.” Cooper decided that the anus is an “intimate part” and that “fisting” was being done to gratify sexual desire, since Hillard had told somebody that it “felt great.”
Cooper also found that the statute would apply even when the victim was the active party. “Thus, it is immaterial to [Hillard’s] culpability that A.W. ‘fisted’ him rather than vice versa,” he insisted.
As to the complaint about prosecutorial misconduct, Cooper wrote, “The Commonwealth concedes that use of subpoenas to compel N.M. and J.S. to attend a pretrial interview with the prosecutor was improper… We also agree with the Commonwealth that this misconduct does not require either a dismissal of the indictment or a retrial… The appropriate cure for such misconduct is to preclude the prosecutor from using any information obtained solely from the improper interview.”
Finding that N.M. had testified at trial favorably to Hillard, the court ruled that the prosecutor’s perjury prosecution threat had not deterred him from speaking up.
Justice Martin Johnstone, dissenting, found that the result of this case profoundly unsavory, writing “it stinks.” Johnstone argued that a criminal defendant is entitled to sufficient notice of the charges in order to mount a defense. “Hillard’s indictment,” he wrote, “failed to specify which statutorily prohibited sexual activity he was accused of inducing A.W. to engage in.”
The state originally argued that the illegal sexual act Hillard committed was prostitution, but the Supreme Court had rejected that, finding that the statutory definition of prostitution did not fit this case, because it requires “sexual conduct” and this case did not involve the either participant’s sex organs.
“While it concludes that the definition of prostitution does not fit, the majority does not reverse Hillard’s conviction,” wrote Johnstone. “Rather, the majority formulates its own theory of the case and retroactively applies this new theory to a trial that ended long ago… The majority concludes that the evidence supports a finding that Hillard was guilty of third-degree sexual abuse. Of course, Hillard was never charged with the underlying offense of third-degree sexual abuse.”
Johnstone decried this line of judicial analysis as “absurdity.”
“No matter what the majority calls it, it stinks,” Johnstone concluded. “To paraphrase Gertrude Stein, ‘a skunk is a skunk is a skunk.’ While the usually able members of the majority may be able to hold their collective noses to affirm this case, I cannot.”
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