'Intimate parts' include male chest

Listen to this article

Hon. Daniel P. Anderson

The touching of a boy’s chest, as well as a girl’s, is "sexual contact" within the meaning of sec. 948.02(2), because sec. 939.22(19) does not distinguish between the two in defining "intimate parts," the Wisconsin Court of Appeals held on Jan. 8.

Michael J. Forster, a camp counselor, was charged with second-degree sexual assault of a child, based on his rubbing the chest of a 15-year-old boy.

He contested the charge, arguing that touching a boy’s chest cannot constitute sexual contact as a matter of law. Waukesha County Circuit Court Judge Robert G. Mawdsley disagreed, and the jury found him guilty.

Forster appealed, but the court of appeals affirmed in a decision by Judge Daniel P. Anderson.

The Statutes

Section 948.02(2) prohibits, "sexual contact or sexual intercourse with a person who has not attained the age of 16 years."

Section 939.22(34) defines "sexual contact" as, "the intentional touching of the clothed or unclothed intimate parts of another person … for the purpose of sexual humiliation, sexual degradation, sexual arousal or gratification."

Section 939.22(19) defines "intimate parts" as "the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being."

Unambiguous Definition

The court concluded that the term "breast" unambiguously refers to the breast of either a male or female.

Forster argued that the ordinary meaning of the term "breast" refers only to a female breast, because "It is the female breast which has sexual connotations, not the male chest." Forster further argued that, if the term "breast" refers to a male’s chest, the statute is anomalous, because male breasts may be exposed in public, while all the other intimate parts identified in the statute may not.

Rejecting the arguments, the court concluded, "We believe that the legislature’s decision not to specify a particular sex when designating one of the ‘intimate parts’ as ‘the breast … of a human being’ was made intentionally to convey that the breast of any human being – male or female – is an intimate part under sec. 939.22(19). This is not ambiguous. (emphasis in original)."

Other Statutes

Rather than finding its interpretation anomalous because of other statutes that distinguish between the male and female breast, the court found that the other statutes support its conclusion.

The court noted that sec. 948.50, which governs strip searches by school employees, specifically refers to a "female person’s breast." Likewise, sec. 948.11(1)(d), governing the exposure of a child to harmful material, defines limits its definition of "nudity" to the "female breast."

	Links Wisconsin Court of Appeals Related Article Case Analysis

Finally, sec. 942.08(1)(a), governing in-vasion of privacy, limits its definition of "nude or partially nude person" in relevant part to "any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple."

From these statutes, the court concluded, "These examples further support the legislative intent that the breast referred to in Wis. Stat. sec. 939.22(19) means any male or female breast. If the legislature thought that only females had breasts, its gender-specific qualification of the breast in Wis. Stat. secs. 948.50, 948.11 and 942.08 would have been unnecessary. The choice of using the word ‘female’ in these statutes implies an intent to make the statute applicable to the female breast and not to the male breast.

Similarly, the choice not to use a gender qualification in sec. 939.22(19) implies the intent that the breast referred to is that of any human being – just as the statute plainly states. (emphasis in original)."

Accordingly, the court affirmed Forster’s conviction.

Click here for Case Analysis.

David Ziemer can be reached by email.