Summary
The Vermont Supreme Court affirmed a juvenile delinquency adjudication under 13 V.S.A. § 2601 for open and gross lewdness and lascivious behavior based on the nonconsensual touching of a student's breast in a school hallway. The Court held that the conduct was sufficiently open and gross, that the statute was unambiguous for purposes of the rule of lenity, and that it was not unconstitutionally vague as applied. Justice Robinson dissented, concluding that § 2601 lacked sufficiently definite standards and was void for vagueness.
Topics
Practice areas
Questions Presented
- Whether the evidence supported findings that A.P.'s conduct was open and gross under 13 V.S.A. § 2601.
- Whether 13 V.S.A. § 2601 was ambiguous such that the rule of lenity required application of a lesser misdemeanor offense.
- Whether 13 V.S.A. § 2601 was unconstitutionally vague as applied to A.P.'s conduct.
Holdings
- Conduct is sufficiently open under § 2601 when it is undisguised and occurs in the presence of at least one witness; the complainant may be the sole witness. A nonconsensual breast touching in a school hallway during the school day satisfied the openness requirement.
- Conduct is gross under § 2601 when it is patently offensive, meaning that it would cause serious offense or harm to a reasonable witness in context. The nonconsensual touching of a student's breast in a school hallway was sufficiently patently offensive to support the adjudication.
- The rule of lenity does not apply when § 2601's language is unambiguous. The ordinary meanings of lewdness and lasciviousness, together with Vermont precedent, provide sufficient notice that nonconsensual sexual touching of a breast in a school hallway is prohibited.
- Section 2601 is not unconstitutionally vague as applied to deliberate, unwanted touching of a person's breast in a school hallway. The statute, as limited and explained by Vermont precedent, gives ordinary people fair notice and provides sufficient standards to constrain arbitrary enforcement.
Key quotations
““ ‘open’ means ‘undisguised, not concealed,’ and requires no more than one witness.”” (2020 VT 86, ¶ 9)
“The statute does not prohibit arguably “lewd” acts that a reasonable individual would find inoffensive or only mildly offensive—for instance, a suggestive performance, hand gesture, or prank.” (2020 VT 86, ¶ 12)
“Because First Amendment interests are not implicated here, we must base our examination of the statute on its application to [juvenile] and the facts presented, and not on the statute’s possible application to others.” (2020 VT 86, ¶ 23)
Factual background
A.P., who was eighteen, approached a seventeen-year-old complainant in a school hallway during the school day and asked whether he could touch her breasts before reaching toward and touching her breast. The complainant immediately ran away, upset and furious; no one other than the complainant witnessed the incident. A.P. denied making contact but acknowledged that his conduct disregarded the complainant's feelings and was inappropriate.
Procedural history
The State charged A.P. under 13 V.S.A. § 2601 based on nonconsensual touching of a student's breast in a school hallway. After A.P. requested youthful-offender treatment, the matter was transferred to the Superior Court, Windsor Unit, Family Division, which held a merits hearing, found the complainant credible, adjudicated A.P. delinquent, and entered judgment. The Vermont Supreme Court affirmed.