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Breaking News, Protecting Your Civil Rights: Supreme Court Clarifies Meaning of “Sexual Misconduct” in Man’s Conviction

The concept that you are “innocent until proven guilty by evidence beyond a reasonable doubt” is a cornerstone of the American legal system. Arising out of this important legal concept is what is known as the rule of lenity. The rule of lenity requires that criminal statutes be strictly construed against the drafter (the State), and any ambiguities or uncertainties that exist within the statute are to be applied in the manner most favorable to the defendant. The reasoning behind this is that an individual, who is presumed innocent, should not be held criminally liable due to some vague penal statute that does not clearly identify conduct that is criminal. The rule of lenity ultimately embodies the belief in the right of the individual, and in some respects, the legal notion it is better that a guilty person goes free, than an innocent person imprisoned. This blog covers a new case decided by the Indiana Supreme Court that balances these important tools to protect your civil rights.

While the rule of lenity states that criminal statutes are to be construed strictly, the Court of Appeals and the Supreme Court have made clear that the rule of lenity is not to be used to overly narrow a penal statute to exclude cases it fairly covers. This means that if it is clear your acts are a crime, then a novel argument the behavior is not covered by the criminal law will fail and you will be convicted. This is so we do not have criminals roaming the streets based on getting off on legal technicalities. The Indiana Supreme Court clarified this balance on August 23, 2018.1 In Boggs v. State, the Supreme Court upheld Curtis Boggs conviction of eight counts of sexual misconduct with a minor and four counts of child molestation. The issue was whether there was sufficient evidence presented to find a conviction of child molestation, a level 1 felony. The Indiana Court of Appeals found there was sufficient evidence, and the Indiana Supreme Court affirmed the Court of Appeals’ holding.

The facts of the Boggs’ case reflect this delicate balance (going free for an ambiguous criminal statute versus avoiding justice by a technicality). In this case, Boggs was charged with sexual misconduct for his acts of touching the minor victim’s private part. On appeal, Boggs argued that there was insufficient evidence to prove “penetration” for purposes of sexual misconduct. Under Indiana’s criminal law, a person commits child molestation by knowingly or intentionally performing sexual intercourse or sexual misconduct with a child under fourteen years of age.2 Sexual intercourse means an act that includes any penetration of the female sex organ by the male sex organ.3 Sexual misconduct means an act involving . . . the penetration of the sex organ or anus of a person by an object.4

Boggs’ main argument was that the statutory language of “sexual misconduct” states the penetration of the female sex organ. Boggs contended that the language of “the” before “penetration” means that it requires proof of “more intrusive acts.” Boggs pointed to the language found in the definition for sexual intercourse which uses the word “any” before the word “penetration.” Boggs claimed that the difference in the language of the two statutes indicates the legislative intent that “penetration” was to have two different meanings depending on the statute. Like the Court of Appeals, the Indiana Supreme Court did not find Boggs’ argument persuasive and upheld his conviction. The Court found that “proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed sexual misconduct with a child.” What do you think?

Knowing the status of developments in the law is the key to avoiding criminal liability, being an engaged citizen in our participatory system of government and knowing how a skilled criminal defense counsel may properly defend you. Having criminal defense counsel current on the latest developments in law provides you with the best criminal defense. This blog post on a key new case was written by attorneys at Ciyou & Dixon, P.C. who handle criminal defense cases and appeals of criminal convictions throughout the state. Knowing the law is a key to be an engaged citizen. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.


  1. Curtis Boggs v. State of Indiana, 18S-CR-430 (Ind. 2018).
  2. Ind. Code 35-42-4-3.
  3. Ind. Code 35-31.5-2-302.
  4. Ind. Code 35-31.5-2-221.5
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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

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