“Touching” versus “feeling” in Augustin v. United States

by Jamison Koehler on November 15, 2020
D.C. Court of Appeals foyer

Jimmy Augustin was convicted of one count of misdemeanor sexual abuse of a minor (MSA-M) and one count of simple assault after trial in front of Judge Patricia Broderick.

As a 33-year-old athletic trainer and teacher at a D.C. high school, Augustin had become “infatuated” with one of his students, a 17-year-old student who reciprocated his feelings.  They flirted by text.  They also hugged (the basis for the MSA-M conviction) and kissed (thus the simple assault).   

Anna Scanlon represented Mr. Augustin in his appeal:  Augustin v. United States, __ A.3d __ (D.C. 2020).  

D.C. Code § 22-3010.01 makes it illegal for anyone 18 years of age or older and “in a significant relationship with a minor” to engage in sexually suggestive conduct” with that minor.  “Sexually suggestive conduct” includes “touching a child or minor inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks.”  

The question in this case was whether contact between Augustin and the minor’s breasts and/or groin area during one of the hugs satisfied the elements of the MSA-M statute.  

Augustin argued for a more restrictive definition of “touching.”  Specifically, he argued that the legislature must have meant to require more than the incidental physical contact that would happen during a hug between any part of his body and the minor’s private areas.  Instead, he argued, “touching” would require an act of “feeling” one of those areas with his tactile senses — through, for example, his fingers, hands, genitals or other sensory organs.  After all, although his chest may have come into contact with her breasts during the hug, “the chest is not a part of the body generally used to reach out for purposes of feeling.”  

Writing for the D.C. Court of Appeals (DCCA), Associate Judge Glickman refused to adopt this more restrictive definition of “touch.”  The first definition of the word in Webster’s does in fact describe “touching” as bringing “a bodily part briefly into contact with so as to feel” and “to perceive or experience through the tactile sense.” At the same time, “that is not the only definition given for the transitive verb ‘touch’; the dictionary confirms that the word also is commonly used without implications of feeling, perception, or the tactile sense or experience.”

Instead, the DCCA remanded the case to the trial court for new findings on an issue on which the trial court had misrepresented the evidence.  

As for the simple assault conviction, the DCCA found that, because the minor in this case was over the age of 16, the government failed to prove that Augustin kissed the minor without her consent. That conviction therefore was reversed.  

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