Analingus and Involuntary Deviate Sexual Intercourse (IDSI) in Pennsylvania

A while back one of our Pennsylvania clients was falsely accused of having committed analingus on a minor.  He was originally charged with aggravated indecent assault, but later was additionally charged with Involuntary Deviate Sexual Intercourse (IDSI.  The fact that the magistrate dropped the latter charge but it was reinstated in the information will be discussed in another blog.

Upon close examination of Pennsylvania statute, we determined that the charge of IDSI was not the appropriate charge for the alleged event.  Deviate sexual intercourse is defined as "intercourse per os or per anus".  In PA v Kelley 2002, the court stated that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”.  Obviously the anus is not genitalia, or a sexual organ as so defined.

We never had an opportunity to make the argument in front of the judge because a plea agreement was reached.  However, our client painstakingly composed an analysis of the charge of IDSI, where he makes the above technical argument.  Additionally, he argues why the charge of aggravated indecent assault also does not apply to analingus.  We have included his analysis below.  We are not certain as to its merit, but it is quite compelling.  If you have been charged with this offense please contact one of our sex crime attorneys.

ORAL CONTACT WITH THE ANUS DOES NOT CONSTITUTE THE CRIME OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE.

§ 3123.  “Involuntary deviate sexual intercourse”. (a)  Offense defined.–A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant.

Deviate sexual intercourse is “sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal.  The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures” (Kelley 2002 Pa Supreme Court).

§ 3101 "Sexual intercourse."  In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required

The Pa Supreme Court in Kelley 2002 stated that digital penetration of the vagina does not constitute 1) sexual intercourse in its ordinary meaning (penis/vagina), 2) sexual intercourse with an animal, nor 3) penetration with a foreign object.  The court reasoned that the only way that digital penetration could only be classified as sexual intercourse or deviate sexual intercourse is if it were “intercourse per os or per anus”.

The above court stated that because the General Assembly did not define “intercourse per os or per anus”, that these words must be construed according to their ordinary usage, and that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”. Therefore, alleged contact with the anus by one’s mouth or finger does not constitute “intercourse per or per anus”, i.e., oral or anal intercourse1, because there would be no genitalia involved – neither the anus, tongue or finger are genitalia (Dewalt 2000 Pa Super. 149).  It should be noted that the case of Kelley 2002 is cited in the Pennsylvania Sexual Violence Benchbook (2007) when the authors refer to the crime of IDSI and the definition of “intercourse”; the author’s write “Per Os or Per Anus: these terms describe oral and anal sex, i.e., intercourse ‘through or by means of the mouth or posterior opening of the alimentary canal’.”

Furthermore, the above finding has been applied by several PA Superior Courts which have ruled digital penetration of the anus constitutes the crime of aggravated indecent assault, not involuntary deviate sexual intercourse, i.e., it is an act of assault, not an act of “intercourse” (e.g., S.R. 2007 Pa Super. 79; Castelhun 2005 Pa Super. 415; Delbridge 2001 Pa Super 75; L.N 2001 Pa Super. 352).  When making this ruling, the court in Castelhun 2005 specifically cites the case of Kelley 2002.  Therefore, these courts have determined that “intercourse per anus” must involve the genitalia of at least one person.  By analogy, “intercourse per os” must involve the genitalia of at least one person.  In support of this, if “intercourse per os” did not require genital contact, then licking one’s arm pit or feet (for example) would constitute “intercourse per os”.

1 “Therefore, in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight”. Wilson 2003 Pa Super. 205 citing Poindexter 1994 Pa Super; L.N. 2001 Pa Super. 252 citing Poindexter 1994 Pa Super.

Although the following definitions do not apply to Pennsylvania, they do show at least that other states have similarly interpreted the meaning of deviate sexual intercourse:

Alabama – Deviate sexual intercourse – Any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

Texas – Deviate sexual intercourse means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.

New York – “Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva”.

ORAL AND/OR DIGITAL CONTACT WITH THE “ANUS” DOES NOT ESTABLISH PENETRATION IN REGARDS TO AGGRAVATED INDECENT ASSAULT.

Brief
It is clear from the case of Kelley 2002 that oral and/or digital contact with the “anus” constitutes an act of assault, not oral or anal intercourse whereby genitalia must be involved. The fact that some courts have stated that some form of oral contact is sufficient to establish the penetration requirement for IDSI cannot by analogy be used to say that any oral contact with the “anus” constitutes penetration for the purposes of aggravated indecent assault.  This finding must be viewed in proper context.  *It is not the penetration requirement that differs between the crimes of aggravated indecent assault and IDSI: it is what the statutes prohibit from being penetrated.  For the purposes of aggravated indecent assault, the penetration requirement involving oral contact is no different than the penetration requirement involving digital contact; the anus itself must be penetrated.  However, the statute regarding IDSI does not specify what is prohibited from being penetrated, but instead simply requires proof that a person engaged in acts of oral or anal intercourse, “which involved penetration however slight”.1  To apply this by example: touching one’s penis with a finger does not establish penetration necessary to sustain the crime of aggravated indecent assault; however, touching one’s penis with the tongue or lips does establish penetration necessary to sustain the crime of IDSI because courts have determined that the statute prohibits the mouth from being penetrated.  Moreover, an exhaustive list of case law at the end of this document firmly illustrates that there must be explicit proof of penetration to sustain the crime of aggravated indecent assault; if there is not, the lesser crime of indecent assault is appropriate, provided there is proof of sexual gratification.

Analysis
The finding that some form of oral contact with genitalia is all that is necessary to establish penetration was held solely for the charge of IDSI, which prohibits oral intercourse which involved “penetration however slight”.  The court in Wilson 2003 Pa Super. 205 wrote “….in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight. ……finding actual penetration of the vagina is not necessary; some form of oral contact with the genitalia is all that is required”. Of most importance to this analysis is the origin of this language, and the reasoning behind the language.

All courts including the one above that have stated, in varying words, that some form of oral contact is all that is necessary to establish the penetration requirement for IDSI ultimately refer  to the cases of Trimble 1992 Pa Super 419a and/or McIlvaine 1989 Pa Super. 385b. In Trimble 1992, the court stated “It has been held that oral contact with the female genitalia is sufficient to support the penetration requirement for IDSI”, while referring to Zeigler Pa Super 1988. The court in Zeigler referred to Ortiz 1983 Pa Super., wherein the court held that “It is quite clear, however, that the definition of ‘sexual intercourse’ found at Section 3101 does not specify ‘penetration of the vagina,’ but instead specifies ‘some penetration however slight.’”  This court also relied on the findings of Bowes 1950 Pa Super which held that "entrance in the labia is sufficient".  In conclusion, the court in Ortiz held that penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101. In essence, these courts held that oral intercourse with the female genitalia would lead to at least the plane of the labia being penetrated.

In McIlvaine 1989, the court stated “Appellant first argues that judgment should have been arrested on the IDSI count because penetration was not proven. We disagree. 18 Pa.C.S. §§ 3123 and 3101 require ‛some penetration however slight.’ The testimony of the victim that appellant …….pushed her head down until she kissed his penis is sufficiently descriptive to warrant the inference by the jury that appellant penetrated, ‘however slight,’ the mouth of the victim”.  The court in Wilson 2003, while referring to McIlvaine 1989, held that the penetration element of IDSI was established because the defendant inserted his testicles into the victim’s mouth.  The court in L.N. 2001 took the analysis a step further by finding that the because the court in McIlvaine found that the appellant penetrated, however slight, the MOUTH of the victim when he made her kiss his penis, that the act of licking the penis with the tongue, where the tongue is an internal part of the mouth, should be held no differently.

In summary, the courts have found that the word “penetration” as used in the definition of sexual intercourse and/or deviate sexual intercourse does not specify what must be penetrated, i.e., whether the vagina, the vulva, the labia, the anal area, or the mouth, but instead simply requires proof of acts of oral or anal intercourse which involved “penetration however slight” (Wilson 2003; McIlvaine 1989; Zeigler 1988; Ortiz 1983).  Furthermore, because the crime of IDSI prohibits intercourse “per os” ("by the means or agency of: by way of: THROUGH." (Kelley 2002) the mouth), penetration of the mouth by the genitals constitutes the crime of IDSI and fulfills the penetration requirement for this crime.

First, unlike the female genitalia (pertaining to the vagina as discussed in Trimble 1992), the anus does not have protruding components that constitute the anus nor an open cavity formed……….

a (cited in:Wall 2008 PA Super 151; Trippett 2007 Pa Super 260; Wilson 2003 Pa Super. 205; In the Interests of A.D.2001 Pa Super 99; L.N. 2001 Pa Super. 352)
b (cited in:Castelhun 2005 Pa Super 415; Wilson 2003
Pa Super. 205; L.N. 2001 Pa Super. 352
3Aggravated Indecent Assault – “Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person
who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault, a felony of the second degree, if…”

by protruding components that constitute the anus that could be penetrated simply by placing one’s tongue, lip, or finger on it. In order to sustain the crime of aggravated
indecent assault, the anus itself must be penetrated3.  The anus is defined as “The opening at the end of the alimentary canal through which solid waste is eliminated from the
body” (American Heritage Dictionary of the English Language, 3rd Edition).  The opening is closed by external sphincter muscles. External sphincter is a layer of voluntary (striated) muscle encircling the outside wall of the anal canal and anal opening – its function
is to close the anus.  Therefore mere contact with this area could not result in penetration, however slight of the anus.  Mere contact constitutes the crime of Indecent Assault.  In Pa v Riggle 2008, the “jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger, Count 7, Indecent assault, for touching M.B’s anus with his penis, Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Secondly, penetration of the mouth (lips or tongue) by the genitalia fulfills the penetration requirement of IDSI because either the genitalia or mouth can be
penetrated in accordance with the statute (intercourse per os or per anus, with some penetration however slight) (Wilson 2003; L.N. 2001; Poindexter 1994; McIlvaine 1989).   However, the charge of aggravated indecent assault requires that the anus or genitals be penetrated, not the mouth3.  Therefore, although by analogy the placing of ones tongue on the anus of another would (as applied by McIlvaine 1989 and L.N. 2001) lead to the mouth being penetrated by the anus, it does not lead to the anus being penetrated which is required to sustain a conviction for aggravated indecent assault. Therefore, unless there is proof of penetration of the anus, the act of placing one’s lips, tongue, or finger on the anal area constitutes indecent assault, provided that the act was committed for sexual gratification.

Precedent cases in which defendants have been convicted of aggravated indecent assault have involved detailed testimony that penetration, not mere contact, had in fact occurred.

Burns 2009 Pa Super. 260 – The victim woke upon feeling a “poke” in her vagina. (Id. at 53-54.) When asked to be more specific, she described the sensation as “slight penetration.”

Page 2009 Pa Super 20. . . [and] he would put his fingers inside of [her].”

Williams 2008 Pa Super 257 – (defendant touched the inside of her vagina)

 In the Interest of S.R. 2007 Pa Super. 79 – “Later, B.K. testified that L.K. told her more of the details, describing how S.R. used hair gel and put his fingers in her butt.

Kerrigan 2007 Pa Super 63 – A.R. also told Detective Rentko that Kerrigan had “put his private inside where she pees and poops.” N.T. (Trial), 12/08/04, at 261. A.R. further told Detective Rentko that Kerrigan “mov[ed] up and down” when he was inside of her.

Castelhun 2005 Pa Super. 415– ‘J.T. testified at trial, that Castelhun both digitally penetrated her vagina and inserted his penis into her vagina”.

Hunzer 2005 Pa Super. 13 – She further testified that the victim told her appellant had “stuck his finger in my hole and then he licked me down there.”

Filer 2004 Pa Super.70 – “put his one hand down my pants and started fingering me”.  Question – He inserted his fingers into your vagina?”  Answer – Yes.

W.L. 2004 Pa Super 402 – She told Ms. Walker that she had been disciplined by being struck with a belt buckle and that Father had touched her underneath her clothing, “that it hurt, [and] that it happened many times.” Id. at 20. When asked why it hurt, C.B. responded that Father placed his hands “inside of her.”

Delbridge 2001 Pa Super 75 and Delbridge 2002 Pa Supreme – “stuck a finger in LD’s butt”.

In the Interests of A.D. 2001 Pa Super 99. – Further, the statements of the victim indicating that Appellant had done “the same thing as my brother,” who she stated put his “wiener” “in my pee-pee,” was sufficient to establish penetration. Penetration need not reach the vagina or farther reaches of female genitalia. Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992) (where testimony of five-year old victim that defendant placed his “wiener” in her “tooter” was sufficient to establish
penetration and support a rape conviction).

Kelley 2002 Pa Supreme Court – “Kelley inserted his fingers into her vagina and moved them up and down”.

L.N. 2001 Pa Super. 352 – The Appellant then rolled the victim on his side and put his finger deep inside the child’s anus, causing the victim pain.

Bishop 1999 Pa Super. 292 – “Further, M.B. testified that Appellant put his finger inside her “coo-coo” and “digged down” in it and it hurt.

Fischer 1998 Pa Super. 721 – “According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers”.

Knaub 1996 Pa Supreme Court – J.K. testified that Appellant had put his fingers into her vagina while she was in bed. J.K. testified that it hurt her when her father did this, and that it happened every time she visited with Appellant at either his grandmother’s or his sister’s home.

 Precedent cases wherein defendants have been convicted of Indecent Assault – mere contact does not establish penetration.

§3126 Indecent Assault – A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if: (1) the person does so without the complainant’s consent.

§3101 defines indecent contact as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.”

Young 2010 Pa Super. 2 – appellant admitted, at the very least, that he permitted the fondling (of genitals) to continue for 30 seconds, and that he was aware that the fondling was for the purpose of arousing the sexual desire of the child complainant. Simply stated, this is a confession to indecent assault, which prohibits indecent contact for the purpose of arousing the sexual desire of either the defendant or the complainant.

Pa v Haught 2008 – “Therefore, the issue at trial would appear to be whether the touching went beyond indecent assault into a penetration of the victim’s vagina required for aggravated indecent assault.”

Pa v Riggle 2008 - The jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger; Count 7, Indecent assault, for touching M.B’s anus with his penis; Count 8, Indecent Assault, for touching M.B’s. penis with his mouth; Count 10, Corruption of a Minor, for showing M.B. pornographic videos; and Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Walker 2008 PA Super. 182 – Upon the conclusion of I.B.’s direct testimony, the trial judge called both counsel to sidebar and stated that I.B. did not testify that penetration occurred during the incident.

In the Interest of M.G. 2007 Pa Super. 27 - R.J. told C.S. that Appellant had touched
R.J.’s pee-pee while they were in the basement.  Appellant reached under D.M.’s towel and touched her “private area.”  Appellant was convicted of indecent assault, not aggravated indecent assault.

Charlton 2006 Pa Super. 149 – In this case, the victim, appellant’s daughter, testified that appellant rubbed his penis against her, touched her vagina, and had sexual intercourse with her on multiple occasions when she was approximately 4½ years old. Appellant was convicted of indecent assault, not aggravated indecent assault.

Lemon 2002 Pa Super. 234 – Appellant photographed her in sexually explicit
positions and touched her breast and vaginal area. Appellant was convicted of
indecent assault, not aggravated indecent assault.

Fisher 2001 Pa Super. 327 – Specifically, at the time of sentencing, the trial court stated that “the facts which are the predicate for the indecent assault charge are the facts which indicate that [Appellant] admitted he rubbed his penis on the buttocks area of [Victim]in this case . . . .”

Ricco 1994 Pa Super. 437 – "Indecent assault" of ten-year-old victim occurred when 41-year-old defendant placed victim's hand on his genitals.

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