Appeals Court (January 18, 2007)
This case reiterates the well-settled principle that a defendant may be convicted of indecent assault and battery on a child when the child, induced by the defendant, committed the touching.
The defendant was convicted of indecent assault and battery on a child under the age of fourteen. On appeal, the defendant argued there was insufficient evidence to sustain the conviction because the statute requires that the defendant touch the child and in this case, the child, induced by the defendant, touched the defendant. The Appeals Court rejected this argument.
While most cases of indecent assault and battery involve the defendant performing the touching, the crime will also exist where a perpetrator does not himself perform the indecent touching, but directs or commands the victim to touch the perpetrator or a third person in a manner that would be offensive.
Jury Instruction on Intent:
In a case with this issue, the jury can be instructed that they may convict if the Commonwealth proved beyond a reasonable doubt that the defendant intentionally permitted the victim to touch him, or that the defendant intended that the child touch him.