In re L. A. G. , 407 A.2d 688 ( 1979 )

MACK, Associate Judge:

In an initial consideration of this case, the panel affirmed an adjudication of delinquency on the ground that evidentiary corroboration was not required to sustain the conviction of a 13-year-old male for simple assault of a “sexual nature” upon the person of a 12-year-old female. See In re L.A.G., D.C.App., 396 A.2d 981 (1979). On petition for rehearing or rehearing en banc, unopposed by the government in the interest of furthering the administration of justice, the panel granted rehearing and reheard oral argument. Upon further consideration, a majority of the panel has concluded that the initial disposition was in error and we therefore vacate that holding and reverse the conviction.

Appellant was charged with simple assault in violation of D.C.Code 1973, § 22-504. Complainant was the sole witness to testify. She stated that she encountered appellant and a companion in a junior high school corridor and that appellant reached out and touched her vagina; he held his hand there for approximately five seconds before walking away, laughing. The trial court found that the act in question was not sexual in nature,¹ denied appellant’s motion for judgment of acquittal and found him guilty as charged. Appellant challenged his conviction on alternate grounds: (1) that, if the trial court’s ruling was correct that the touching was not sexual, the evidence was insufficient to support a conviction of assault, or (2) that, if the trial court’s finding that the alleged assault was not sexual was clearly erroneous, the conviction could not stand for lack of corroboration.

Putting this argument another way, if we accept the trial court’s conclusion that the touching was not sexual in nature, we must find in the record that the government otherwise established the elements of an assault. We cannot do so.

The settled definition of assault is “ ‘an attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.’ ” Guarro v. United States, 99 U.S.App.D.C. 97, 99, 237 F.2d 578, 580 (1956) quoting Patterson v. Pillans, 43 App.D.C. 505, 506-07 (1915).² The momentary touching here, the laughing and the walking away, without more, are hardly supportive of an intention to do any bodily injury, however small. Cf. Harris v. United States, D.C.App., 201 A.2d 532 (1964). Moreover, neither the government, nor the trial court, nor we have suggested (nor could we in view of the record) that there was an attempt by appellant to do a corporal injury in the violent sense. Rather, we believe that it is only by taking into consideration the sexual nature of the touching that we could find that the elements of the offense are proven.

Thus it is that a nonviolent action involving sexual misconduct may constitute an assault because the sexual nature of the conduct supplies the missing element of violence or threat of violence. See Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939). In Beausoliel, an adult male defendant was convicted of simple assault on a female child because of a sexual touching of a nonviolent nature. In holding that such conduct constituted an assault, the court noted, “In a case such as the present, threat or danger of physical suffering or injury in the ordinary sense is not necessary. The injury suffered by the innocent victim may be the fear, shame, humiliation, and mental anguish caused by the assault.” Id. at 115-16, 107 F.2d 296-97 (footnote omitted).

The predicament we face in the instant case is illustrated by Ingram v. United States, D.C.Mun.App., 110 A.2d 693 (1955) —a case relied upon by the dissent but, we' think, actually supporting our position. The evidence produced in that case of simple assault would have supported a rape and to appellant’s counsel’s assignment of this as error, the court said:

The charge was simple assault and there was ample evidence to support the jury’s finding that such charge was proved. Even without the carnal aspects of the assault there was clear evidence of physical violence directed against the body of the complaining witness, in forcibly carrying her to the upper floor, in choking her, and in forcibly removing some of her clothes. [Id. at 694 (emphasis added).]

Further, the court in Ingram, met the argument that the testimony of the complaining witness was uncorroborated, by stating (as the dissent points out) “The first answer is that no rule of law requires corroboration in a case of simple assault” (obviously a proposition with which we are in complete agreement where violence or threat of violence forms the common law underpinning). The court’s second and “still better answer is that the complainant was corroborated factually and circumstantially, in part at least, by two of the defendants, and corroborated in some detail by a police officer who told of the swollen condition of her face and throat and of having found some articles of her clothing in the room.” Id. at 694.

On the instant record, unlike the record in Ingram, the element of violence or threat of violence is missing. This record therefore does not support a conviction for simple assault unless the carnal nature of the touching is relied upon. Once the carnal aspect of the case is relied upon, the issue of corroboration surfaces, as it did in Ingram. See id. at 694, n.1, citing Kelly v. United States, discussed infra. The question here remains therefore, whether appellant can be convicted of assault upon the unsupported testimony of this complainant that there was a touching of a sexual nature.

We start with a discussion of principles of long standing in this jurisdiction. From .approximately the year 1902 until the year 1976, by judicial edict, corroboration of a complainant’s testimony, in prosecutions for rape and related sex crimes, was an indispensable prerequisite to conviction.³ The requirement, however (of independent evidence corroborating the complainant’s testimony), was abrogated in Arnold v. United States, D.C.App., 358 A.2d 335, 344 (1976) (en banc), to the extent that it applied to a “mature female victim of rape or its lesser included offenses . . . ” (emphasis added). These limitations on the abrogation of the requirement are significant. “In Arnold we were confronted with the offense of rape, and we placed considerable emphasis on the fact that the victims there were adults whose maturity diminished the likelihood of fabrication or fantasy.” In re J.W.Y., D.C.App., 363 A.2d 674, 677 (1976). Our court in In re J.W.Y. declined to expand the principles enunciated in Arnold to embrace a prosecution for carnal knowledge involving a 13-year-old female victim. Similarly in Griffin v. United States, D.C.App., 396 A.2d 211 (1978), we declined to extend Arnold to cover a prosecution for homosexual solicitation, and in Davis v. United States, D.C.App., 396 A.2d 979 (1979), we saw no need to consider the reach of Arnold to “other sex related offenses.”

Over the years prior to Arnold, a similar corroborative rule was developing in this jurisdiction with respect to proof of other assaults of a sexual nature, including less aggravated assaults. The rationale for the trend surfaced in 1952, admittedly as a result of concern for persons accused of sodomy solicitation. Thus in Kelly v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150 (1952), the circuit court reversed, for the lack of sufficient evidence, the conviction of a defendant for his verbal invitation [to an undercover police officer] to do a perverted act. Circuit Judge Prettyman, in discussing the authority of the courts to fashion rules of proof in criminal cases, alluded to the rule of corroboration in rape cases. In holding, inter alia, that the serious nature of an invitation to sodomy required that the testimony of a single witness be received with great care,⁴ the court said:

The case before us lies in a field in which our courts have traditionally been unusually skeptical toward the accusation. This has been true of all the so-called sex offenses. [Id. at 128, 194 F.2d at 153 (emphasis added).]

Four years later the court in Guarro v. United States, supra, applied the rationale of Kelly to a case charging a defendant, under the general assault statute, with the nonviolent touching of the genitals of an undercover police officer. The court noted:

The same caution [of Kelly ] should be applied in considering the testimony of the arresting police officer in cases like the present, relative to an act by which its nature left no traces and to which there were no other witnesses. [Guarro v. United States, supra, 99 U.S.App.D.C. at 99, 237 F.2d at 580 (emphasis added).]

Still four years later in Konvalinka v. United States, D.C.Mun.App., 162 A.2d 778 (1960), aff’d 109 U.S.App.D.C. 307, 287 F.2d 346 (1961), the court held that a prosecution for simple assault of a homosexual nature upon a 14-year-old child demanded treating with great caution the boy’s accusation and required the most convincing kind of proof, citing Guarro and Kelly. Judge Hood went further than the latter two cases (which as we note involved adult victims) in relying upon Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959) to hold that corroboration was required in such a case also because of the child’s age.⁵ The facts and the reasoning of Wilson, supra, relied upon by Judge Hood, are instructive. Wilson had been convicted of taking indecent liberties with an 11-year-old girl on the sole testimony of the child. Circuit Judge Edg-erton, in reversing the conviction went back to Kelly, supra, for the rationale advanced for skepticism in sex offenses noting:

The complaining witness in the Kelly case was a policeman. A woman’s uncorroborated tale of a sex offense is not more reliable than a man’s. A young child’s is far less reliable. “. . . As a consequence most courts show an admirable reluctance to accept the unsubstantiated testimony of children in sexual crimes.” . . . [Wilson v. United States, supra at 226-27, 271 F.2d at 492-93 quoting Guttmacher and Weihofen Psychiatry and the Law (1952), p. 374.]

For other decisions showing that courts have been particularly conscious of the requirement for corroboration in treating the sexual accusations of children, see Hall v. United States, D.C.App., 400 A.2d 1063 (1979); Robinson v. United States, D.C.App., 357 A.2d 412 (1976); Evans v. United States, D.C.App., 299 A.2d 136 (1973); Konvalinka v. United States, supra; and Alison v. United States, 133 U.S.App.D.C. 159, 163, 409 F.2d 445, 449 (1969).

Whatever the merits of the reasoning employed by the courts in assessing proof of sexual offenses over the years, it seems clear to us that we are not writing on a clean slate. If some of the early assault cases left any doubt that the corroborative rules were applicable to heterosexual touchings (as well as homosexual touchings) surely such doubt was dispelled by Konvalinka and Wilson. Moreover, one obvious reason why most of these assault cases arose in factual settings of homosexual activity is that there was never any question, prior to Arnold of course, that a female victim’s testimony in sexual crimes required corroboration. Most certainly the cases would, prevent our holding that the testimony of a female child should be given less careful scrutiny than that of a male child.

We read Konvalinka and the related cases as having required corroborative evidence in all simple assaults of a sexual nature. If the crime is one involving a (rape or) “lesser included offense” against a “mature female victim,” the holding of Arnold v. United States, of course, would apply to carve out an exception. If the time has come to carve out further exceptions, the task is one appropriate for the full court sitting en banc. We, like other panels in Davis, supra, and Griffin, supra, decline to do so here.

We hold only here that where the sole underlying basis of a nonviolent assault is its character as a sexual crime, and the complainant, as here, is a child, legal precedent in this jurisdiction requires corroborative evidence.⁶ The record here is devoid of any corroboration.⁷

Accordingly, the conviction appealed from is

Reversed.

1 . The trial judge made, inter alia, the following findings of fact:

* * * * * *

4. Although the boy laughed after he touched [complainant],. there was no oral statement such as “I touched it” or other indication that the touching was sexual in nature.

5. Therefore, the unpermitted touching did not constitute a “sex act.”

2 . Also quoted in Anthony v. United States, D.C.App., 361 A.2d 202, 204 (1976); Harris v. United States, supra at 534; Guarro v. United States, supra; Beausoliel v. United States, supra 71 App.D.C. at 111, 114-15 n.14, 107 F.2d at 292, 295-96 n.14 (1939).

3 . For early references see Kidwell v. United States, 38 App.D.C. 566, 574 (1912); Lyles v. United States, 20 App.D.C. 559, 563 (1902). See also Arnold v. United States, supra at 349 n.2 (Mack, Associate Judge, concurring and dissenting in part).

4 . The court also suggested that evidence of good character of the accused be given weight and that there be corroboration of circumstances surrounding the parties at the time. Id. at 129, 194 F.2d at 154.

5 . Judge Hood noted:

In Wilson, supra, the United States Court of Appeals for the District of Columbia Circuit summed up a series of cases involving sexual charges of children and laid down the rule that “the corpus delicti in a case such as this may not be established by the child’s uncorroborated testimony on the witness stand.” . . .

******

. . . [T]he Wilson holding is a logical extension of the court’s oft-expressed and understandable caution with the sexual accusations of children. [Konvalinka v. United States, supra at 781.]

6 . Both the officers of the Corporation Counsel, and the United States Attorney (in an unrelated case) have suggested that the issues left open in Arnold, supra, be considered en banc.

7 . There was no circumstantial corroboration as to time and place (Kelly, supra), and no evidence of prompt reports to officials or parents (see Konvalinka, supra). The record does not show that the complainant reported the incident to school authorities. She testified that after the encounter she continued on her way to class; the police were notified the following day and appellant was arrested 48 hours after the encounter.