Victim’s Confusion as to Purpose of Sexual Touching does not preclude conviction says California Appeals Court in Upholding Conviction against Former Military Psychologist – Pen. Code, 243.4(c)
A former staff psychologist at an Air Force base in Fairfield, California was convicted for several sex crimes against two female veterans. In People v. Summer, Heath J. Sommer was found guilty by a Jury of six felony sexual assault charges, including sexual battery by fraudulent representation (Pen. Code, 243.4(c) stemming from allegations that he manipulated his patients into having sex with him under the guise of “exposure therapy.” The trial court sentenced Sommer to more than 11 years in State Prison.
Sommer appealed his conviction to the California Court of Appeals on the basis that there was insufficient evidence to support his conviction for sexual battery by fraudulent representation.
In upholding the conviction, the appellate court stated that “confusion or doubt about the purpose of the touching does not preclude a conviction as long as the jury finds beyond a reasonable doubt that the victim allowed the touching to occur because of the defendant’s fraudulent misrepresentation of a professional purpose.” (People v. Icke (2017) 9 Cal.App.5th 138, 149 (Icke).)
The Court based their decision on evidence that Sommer engaged in sexual conduct with his patients both in his office at the Air Force base and his private home. In one case, the psychologist unzipped his pants in his office and made his patient perform oral sex. At other sessions, he groped and fondled her. The other victim testified that she had sex with Sommer on numerous occasions – all under the guise of an exposure therapy he said would treat their post-traumatic stress disorder.
The court clarified Penal Code section 243.4, subdivision (c), which requires the prosecution to prove the victim is “ ‘unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.’ ” (People v. Pham (2009) 180 Cal.App.4th 919, 924 (Pham).) The court stated that the “The “unconsciousness of the sexual nature of the act” need not be absolute. Confusion, rather than clarity, is not surprising when a professional unexpectedly touches the sexual parts of a patient. The court found that Sommer tricked one victim into allowing him to touch her breasts on the pretext it served a professional purpose, e.g., that it was part of her exposure therapy. Using his position as a medical professional, and leveraging his victim’s trust of psychologists, Sommer convinced the victim that her life—and her career— would be at risk if she did not agree to the exposure therapy.
The Court stated that even though the victim thought Sommer’s techniques were unorthodox, she allowed it because Sommer manipulated her into thinking it was therapeutic. The court said that her confusion was sufficient to satisfy the “unconscious” requirement as it is stated in the Penal Code section.
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