Sentencing — sexual assault

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — sexual assault

The cross-reference to U.S.S.G. 2A3.1 applies even if the defendant did not employ physical force or threats of extreme harm to coerce sexual activity from a minor.       “In the § 2242 context we define the concept of ‘fear’ broadly and as distinct from ‘force,’ see United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995), and it is apparent from the accounts of events given not only by the girl but also Henzel that the child’s ‘will to resist’ was overcome by his ‘mental and emotional power,’ id.; see also United States v. Holly, 488 F.3d 1298, 1304 (10th Cir. 2007) (‘A defendant commits sexual abuse if he places the victim in fear, but commits aggravated sexual abuse only if that fear rises to the level of fear of death, serious bodily injury, or kidnapping.’); United States v. Lucas, 157 F.3d 998, 1002-03 (5th Cir. 1998) (explaining that, for purposes of § 2242, fear has ‘very broad’ definition and can be ‘inferred from the circumstances, particularly a disparity in power between defendant and victim’); United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (explaining that § 2242 envisions lesser degree of fear than § 2241). On similar facts, the Ninth Circuit upheld the conviction of a 28-year-old man who engaged in sexual contact with a 13-year-old girl, after inviting her and a friend to go for a ride in his truck and share a pizza. United States v. Gavin, 959 F.2d 788, 789-90 (9th Cir. 1992). The defendant plied the girls with wine, and after her friend had exited the truck to locate another girl, the defendant drove off with the victim, parked, and began fondling her despite her repeated protests. Id. at 790. Although he did not threaten the girl with harm, the jury found that he did place her in fear, and on appeal the court rejected his contention that § 2242 is unconstitutionally vague because it does not define ‘fear.’ Id. at 790-91. The evidence here suggests that the girl feared, as Henzel said when she gathered her clothes and escaped from his room, that he hadn’t ‘come all this way for just this to happen’ and would react badly if she did not meet his demands.”

Affirmed.

11-2293 U.S. v. Henzel

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Bauer, J.