The Massachusetts Appeals Court today upheld a man's conviction for indecent assault and battery on a child under fourteen for the way he started hugging a 13-year-old at a family barbecue in 2015, wouldn't let her go when she tried to escape and then began licking both the outside and inside of her ear.
Johnny Colon, at the time 58, had argued that what he did to the girl - the stepdaughter of a man who was related to Colon's brother - was hardly "indecent," even if she wanted no part of it, in part because state law does not explicitly mention ears.
Oh, come the hell on, the court replied in its ruling on the Plymouth County case:
While ears may not be on the list of "sexual parts," they are intimate enough so that the insertion of a tongue into an ear can reasonably qualify as "indecent." Indeed, here it is very difficult to credit any suggestion that the conduct was not sexual in nature -- unlike a hug or a kiss, an extended ear licking is not normal behavior between persons who are not intimate. And of course, here the evidence of context adds greatly to the calculus. The age disparity was substantial – - fifty-eight to thirteen. The location of the contact was sufficiently separate from the others at the barbecue that it could be found to be surreptitious -- particularly where the defendant broke off his conduct as soon as another person was in the vicinity. This behavior tends to confirm not only that the conduct was improper, but that the defendant knew it was. See Rosa, 62 Mass. App. Ct. at 626. Importantly as well, there was an element of force used here -- the victim testified that she tried to break away, but the defendant would not let go. There was more than sufficient evidence for the judge to find "indecency."
Colon's attorney also argued the state indecency law is too vague. Again, the court disagreed:
Here, once again, we have no difficulty concluding that the defendant's conduct fell comfortably within those behaviors that are encompassed within the standards for "indecency" previously set forth in our cases -- because the conduct was "fundamentally offensive," and "immodest and improper because of its sexual overtones."