holding “skin-to-skin contact is not required in order to establish a ‘sex act’ under section 712.17” and determining “prohibited contact occurs when (1) the specified body parts or substitutes touch and (2) any intervening material would not prevent the participants, viewed objectively, from perceiving that they have touched”
How later courts described this case
- holding “skin-to-skin contact is not required in order to establish a ‘sex act’ under section 712.17” and determining “prohibited contact occurs when (1) the specified body parts or substitutes touch and (2) any intervening material would not prevent the participants, viewed objectively, from perceiving that they have touched”
- providing that 2The jury was instructed it had to find Montgomery committed these acts between February 1, 2015, and August 16, 2016, so it is unclear whether the 2015 or 2016 Code is in force. As there have been no amendments to the pertinent sections, we refer to the 2015 Code. 5 whether contact constitutes a “sex act” depends on whether the contact was “sexual in nature,” which includes the consideration of, but does not require a finding that, the contact was made to arouse or satisfy sexual desires of the defendant or the victim”
- listing “other relevant concerns” as “the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there 11 was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact”
- noting with regard to State v. Phipps, 442 N.W.2d 611, 612 (Iowa Ct.App.1989), that “the fact that no nonsexual purpose for the contact was discernible also demonstrated the sexual nature of the contact”
Written by the judges who cited it.
The opinion
CARTER, Justice
(concurring in part and dissenting in part).
I concur in the majority’s affirmance of defendant’s conviction because I conclude *457 that the trier of fact could reasonably have concluded that defendant performed a “sex act” on an eight-year-old child. I cannot agree, however, with the majority’s criteria for determining whether “sexual contact,” an essential element of a “sex act” under Iowa Code section 702.17, has occurred.
I believe that it is axiomatic that any time two persons are moving about in close proximity to one another innocent contact may occur between sexual parts. The majority recognizes this and attempts to distinguish prohibited sexual contact from innocent contact. The majority includes, as a criterion for determining sexual contact, “the purposefulness of the contact.” At the same time, it disavows any requirement that there be an intent to act based on sexual gratification of either the perpetrator or the victim. The circumstances that the majority would consider in determining whether sexual contact has occurred would also be relevant to show an intent to act based on sexual gratification. However, by not recognizing sexual gratification as an element of sexual contact, the majority prohibits a defendant from attempting to negate the charge by urging lack of such intent. I believe that this is unrealistic and unfair.