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Saturday, March 2, 2024 | Back issues
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Poking Girl’s Stomach|Is Not Sexual Abuse

(CN) - Because poking a 13-year-old girl's bare stomach does not qualify as "indecent liberties with a child," a Utah appeals court vacated a sex-abuse conviction.

David Lewis was convicted of sexual abuse of a child in 2009.

The alleged victim, a 13-year-old girl, said Lewis told her she was sexy, then touched her breasts and vagina over her clothes.

Lewis said there was a misunderstanding. He claimed to have merely said that the girl she was as pretty as the girls in a movie they were watching, then asked to see her stomach. When the girl lifted up her shirt, he poked her stomach, teasing her that she needed to work on her abs, in his version of events.

The girl's 11-year-old sister claimed Lewis also abused her, telling the jury that he came into her room and tried to remove her pants. The jury did not credit her testimony, however, and acquitted Lewis on this charge.

Under Utah law, the crime of sexual abuse involves intentionally touching a child's genitals, buttocks or breasts, or otherwise taking "indecent liberties" with a child.

The Utah Court of Appeals found Friday, however, that Lewis' jury was never instructed on the legal definition of indecent liberties, which it said "differs significantly from what reasonable jurors might otherwise understand the words to mean."

"'Indecent liberties' is defined as conduct that is as serious as touching ... the anus, buttocks, or genitals of a person or the breast of a female," a model jury instruction quoted in the decision.

Lewis appealed on the basis that his counsel gave him ineffective assistance by failing to object to the lack of a jury instruction on indecent liberties.

A three-judge panel agreed and granted Lewis a new trial.

"There was no conceivable tactical benefit to defendant for trial counsel to allow a jury instruction that described the offense in a manner that is inconsistent with the narrow way in which Utah courts have interpreted the applicable statute," Judge Gregory Orme wrote for the court.

The panel found it likely that Lewis would have been acquitted on both charges if the jury had been properly instructed on the narrow legal definition of "indecent liberties."

"Defendant admitted to telling the thirteen-year-old girl that she was pretty, asking her to show him her stomach, and then poking her stomach," Orme said.

"These actions are not on par with touching the vagina or breasts - the conduct alleged by the state in this case - and thus do not qualify as 'indecent liberties' under the statute. But they might well be viewed as constituting indecent liberties by jurors left to their own devices in construing the term."

While the alleged victim claims Lewis did more than poke her stomach, a juror may have found that even Lewis' admitted behavior was morally reprehensible.

"The flawed jury instruction created a situation in which the jury was relieved of its duty to determine the credibility of the witnesses and then decide whether defendant actually touched the girl's vagina," Orme said. "Based on its own unguided sense of what liberties are indecent, the jury could have completely disregarded the thirteen-year-old girl's testimony as unreliable and still convicted defendant on the basis of the touching to which he admitted."

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