State v. Bolsinger

The Facts

Defendant convicted of third-degree sexual abuse.  Defendant was a program supervisor at a youth facility for delinquent boys.  An investigation revealed that he would take boys into a private room and touch their genitals, saying that he was checking for bruises and testicular cancer.  The boys testified they were unaware that he was touching them in a sexual manner and would not have consented if they had known so at the time.  They also testified that because the facility was so strict, “it was almost impossible for them to make choices of their own or to refuse the request of an instructor.” Force defined for the jury at trial was:  “Does not have to be physical.  Act act may be done by force and against the wil of another if the other’s consent or acquiescence is procured by: 1. Threats of violence; or 2. Deception, which may include deception concerning the nature of the act or deception concerning the defendant’s right to exercise authority over the other under the circumstances.”  The court also said that the jury may consider all the surrounding circumstances of the act to determine whether or not the act was done by force or against the will.

Procedural History

Found guilty at trial, reversed on appeal.

Relevant Statute

“A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:  1. The act is done by force or against the will of another person, whether or not the other person is the person’s spouse or is cohabiting with the person.”

The Issue

Whether the element of force necessary for sexual abuse conviction is satisfied where the victim expressly agrees to the specific touching that occurs.

Whether consent obtained by fraud by inducement constitutes the element of force required for sexual abuse conviction.

The Holding/Reasoning

No and no.  Convictions reversed.  “If an act is done that is different from the act the defendant said he would perform, this is fraud in fact.  If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement.  Fraud in fact vitiates (destroys the legal validity) consent; fraud in the inducement does not.”  This case is analogous to medical examination cases where the patient consents to examination to find the doctor engaging in sex acts during.  Where the doctor says he is going to engage in a sex act as part of medical treatment, the patient knows exactly what will happen (fraud by inducement).  Where the doctor does not state such and then engages in the sex act, there is fraud in fact.  Defendant argues that all boys were informed of exactly what touching would occur; therefore, there is fraud by inducement, not fraud in fact.  Iowa law has recognized conviction of fraud in fact, not fraud by inducement.  The victims were touched exactly as the defendant stated he would, although for different reasons than the defendant presented.  As such, the defendant obtained consent through fraud by inducement and therefore his conviction shall be reversed.

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