A man has been arrested in Phoenix and charged with sexual abuse and kidnapping. Police say that the suspect grabbed the breasts of a woman and placed her in a bear hug before fleeing the scene. It is not clear whether the touching of the woman’s breast occurred before, during or after the bear hug, a factor that could prove important in the case down the road.
The sexual abuse charge is relatively straightforward. Under A.R.S. § 13-1404, this offense includes intentionally (or knowingly) engaging in sexual contact without the other person’s consent. Sexual contact includes touching the female breast. We say that the charge is straightforward because the suspect either grabbed or didn’t grab the woman’s breast, and if so, he either intended or knowingly did so, or not. Sexual abuse, except in the case of a minor under the age of 15, is a class 5 felony.
The charge of kidnapping, on the other hand, presents some interesting issues. Many people would not expect a kidnapping charge to result from what seems to have been, assuming the allegations are true, a momentary hug. You might anticipate an assault charge, or, at most, a charge of unlawful imprisonment, which consists merely of knowingly restraining another person. But kidnapping?
Here’s how the issue plays out. Kidnapping is, under Arizona law, the knowing restraint of another person, intending to do any one of a number of things, such as holding the person for ransom, inflicting death or personal injury, interfering with governmental functions, and others.
In the present case, the kidnapping charge hinges on another variation of the charge, and that is where the restraint is coupled with the intent to inflict a sexual offense on the person restrained. The sexual offense, of course, was the alleged grabbing of the breasts of the woman. All of which got us to thinking about bear hugs, and while we might be wrong about this, we don’t think you can grab someone’s breasts while the bear hug is in progress. This led us to the following conclusion: If the breast was grabbed before the bear hug, the prosecutor may well have a hard time proving that the restraint (the hug) was performed with intent to commit sexual abuse, since the sexual abuse would already have occurred; if the sexual abuse took place after the bear hug, the restraint likely ended before the sexual abuse. In any event, we’re not at all sure that the kidnapping charge will hold up – unless, of course, the bear hug in our case was a one-handed variety, or a bear hug from behind, but even then . . .
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004