Mcdermett v. United States

CAYTON, Chief Judge. By information filed in the trial court defendant was charged with assault. 1 He was convicted on the testimony of a police officer named Klopfer who said that simultaneously with an invitation to a homosexual act defendant put his hand on the officer's genital organ. The question before us is whether under the facts as presented at the trial the conviction can be permitted to stand. Quite recently we had occasion to review a conviction of a charge of assault, in connection with which the defendant was said to have expressed a homosexual purpose. Dyson v. United States, D.C.Mun.App., 97 A.2d 135. 2 There the defendant approached a police officer on a public street in the nighttime and asked the officer to light his cigarette. The officer handed him a book of matches, and immediately after defendant had lit the cigarette and returned the matches he reached out and squeezed the officer's genitalia. We based our decision largely on Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292, 296, where the court said that the offense contemplated by the statute is a common law assault and, directing its attention specifically to cases involving sex aberrations, said: 'At common law, it was generally held that a man who took improper liberties with the person of a female, without her consent, was guilty of assault * * *. The attempt need not be made violently, insolently, or in anger. Such assaults are not made in that way.' Relying on the reasoning of that decision we said: 'If it is an assault to touch a woman unlawfully in the expression of a lustful instinct, then surely it is just as much an assault for one man to fondle another without his consent in the intimate expression of a perverted desire.' (Emphasis supplied.) We stated our Conclusion thus: 'So, applying the common law rule and paraphrasing only slightly what the court there said, we rule that a man who takes improper liberties with the person of another man without his consent is guilty of assault.' (Emphasis added.) It will be seen that the three emphasized words, 'without his consent,' provided an essential basis for our ruling. And we did not fail to observe that if the man so touched or fondled were himself a deviate and responded favorably to the approach, 'such response would of course constitute consent and nullify the offense.' It may of course be assumed that the arresting officer in this case was not a deviate. But the question is whether his conduct was so responsive toward defendant's overtures as to indicate consent. To answer that question the evidence must be examined in some detail. Such examination has satisfied us that the facts here are greatly different from those in the Dyson case.