Bob Mercer notes the state Supreme Court’s split decision upholding Timothy J. Bariteau’s conviction of sexual contact with a child under sixteen years of age. Victoria Wicks describes the nefarious conduct in detail, as does the Supreme Court’s August 3 ruling.
Bariteau violated the trust of his congregants and his wife by flirting with and touching a girl in his church youth group. When the girl was 14, Bariteau had sexual conversations with her on Facebook and Snapchat. He transmitted sexual photos of himself to the girl (I’m still boggled that such transmissions ever strike any adult as a good idea). An aroused Bariteau engaged in pants-on-pants contact, rubbing his front and his hands on her clothed backside. Bariteau also kissed the girl’s neck.
As used in this chapter, the term, sexual contact, means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.
The statute seems to say that an individual who touches the breasts of a girl or the genitals or anus of any child, directly or through clothing, for lustful purposes is committing a crime. Bariteau was touching a child for lustful purposes, but he did not touch the breasts, genitals, or anus of his victim. He made that argument in court, and the state offered no evidence to the contrary. His act crossed all sorts of lines, but it didn’t cross the legal line of SDCL 22-22-7.1.
Justices Kern, Gilbertson, and Wilbur of the Supreme Court disagree. Where I read the sexual contact definition as, “Individual touches a child’s privates,” the Court reads, “Individual touches a child’s privates or touches a child with his or her own privates.” The court maintains that Bariteau’s actions were clearly sexual contact and that to conclude otherwise would be “absurd.” “Certainly, the Legislature did not intend such an interpretation when it broadly defined ‘sexual contact,'” writes the Court. “Moreover, the Legislature enacted this statute ‘to protect the morals of children and to prevent their defilement.'”
I’m just speculating here, but I’ll bet the Legislature intended to protect children from the defilment of Bariteau’s kissing their necks… or they darn well should have. But kissing isn’t mentioned in the statute. Bariteau’s kissing the child’s neck was lustful and wrong, but it would not meet the definition of sexual contact under this statute, and that act is mentioned only once in the ruling, in the background, not in the legal reasoning or justification for conviction. It is absurd to think Bariteau can kiss a fourteen-year-old’s neck without getting in hot water, but SDCL 22-22-7.1 does not heat that water.
Justices Zinter and Severson appear to agree with my strict interpretation. In the dissent, Justice Zinter agrees that Bariteau’s act is “reprehensible” but writes that the majority is rewriting one key preposition in SDCL 22-22-7.1:
The absurdity doctrine does not, however, apply because adherence to the ordinary meaning of the words actually used does not create an absurdity. SDCL 22-22-7 and SDCL 22-22-7.1 criminalize a wide range of sexual acts that are uniformly accepted as criminal misconduct. Therefore, the meaning of that text makes sense. The problem is that by prohibiting the “touching of” specified body parts of the victim, but not the “touching with” the body parts of the defendant, the Legislature simply failed to anticipate Bariteau’s different kind of act. And rectifying that oversight is a legislative rather than judicial function [Justice Steven Zinter, dissent, State v. Bariteau, 2016 S.D. 57, 2016.08.03, p. 18].
No one is defending Bariteau’s violations of morality and trust. Bariteau’s acts are reprehensible. But if the Legislature has not written a law that clearly prohibits such acts, we can’t throw people in prison for such acts, and the Court shouldn’t write those laws for the Legislature. The Court’s ruling may provide sufficient case-law cover for future prosecutions, but the 2017 Legislature should revise its definition of sexual contact to make sure predators like Bariteau face punishment for their exploitative behavior.