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Aggravated Sexual Battery No Longer a Lesser Included of Rape of a Child

The crime of 'sexual battery' in Tennessee differs from the crime of 'rape' in that sexual battery only requires 'sexual contact' and rape requires 'sexual penetration.' These terms are defined by statute. 'Sexual contact' requires that the contact be for the purpose of 'sexual gratification.' 'Sexual penetration' does not require such a purpose. Even though sexual battery requires proof of a fact (a purpose of sexual gratification) that rape does not, it was for a number of years considered a lesser included offense of rape, under case law developed to define lesser included offenses. However, in 2009, the state legislature enacted a statute defining lesser included offenses. The Court of Criminal Appeals has interpreted this statute as departing significantly from prior law. In the recent case of State v Ortega, M2014-01042-CCA-R3-CD (Tenn.Crim.App. 4-23-2015), the Court of Criminal Appeals reversed and dismissed a conviction of aggravated sexual battery (as a lesser included offense), concluding it has not been a lesser included offense of rape of a child since July 2009.

The defendant in the Ortega case was charged with two counts of rape of a child. He was acquitted on one count and found guilty on the other count of what the trial court believed to be the lesser included offense of aggravated sexual battery. The defendant successfully argued on appeal that this was no longer a lesser included offense and therefore the trial court had no authority to impose a judgment for that offense.

The State initially argued that the defendant had waived the issue because he had not objected at trial to the lesser included offenses instructed. The Appellate Court reasoned that generally a defendant may not complain about jury instructions to which he did not object at trial, but in a case where the trial court instructs an uncharged offense, a defendant does not consent to the uncharged offense by silence. If the defendant had requested the instruction, it would be effectively an amendment to the indictment by consent. But in this case, the defendant did not ask to be charged with an additional offense. He just did not voice an objection. The question was properly raised on appeal.

The trial court likely was under the impression that aggravated sexual battery was a lesser included offense of rape of a child, as it had been considered to be so under Tennessee case law for a number of years. But the 2009 statute defining lesser included offenses did not merely codify prior existing law. It departed from it somewhat. The 2009 statute, unlike prior case law, did not include language allowing for an additional element (in a lesser included offense) establishing a less serious harm or risk or harm. Therefore, the element of purpose of sexual gratification required to be proved for sexual battery, excludes and differentiates the offense from rape, which does not require such proof. And there is no express provision in the statute linking the offenses.

Note that the statute does expressly make aggravated sexual battery a lesser included offense to the crime of aggravated rape, but not to rape of a child. Additionally, nothing about this case prevents the state or a grand jury from charging aggravated sexual battery as a separate offense.

For more information on lesser included offenses in a criminal case, contact Hindman & Associates.

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