When Does Grabbing A Woman's Breast Equal A Crime?

Since one of our candidates has boasted that he has no problem grabbing women's breasts and other intimate body parts, it's appropriate to address just when this kind of behavior equals an actionable crime.

Donald Trump

Donald Trump

Before the election of our next president, I thought I’d weigh in on an issue I’ve dealt with often as a criminal defense attorney — sexual abuse.

Since one of our candidates has boasted that he has no problem grabbing women’s breasts and other intimate body parts, I thought it appropriate to address just when this kind of behavior equals an actionable crime.

I’ll speak mostly to the law in New York, but I am certain most states have similar definitions.

Sexually related crimes can range from the lowest B-misdemeanor to the highest A-felony.  The range of law covers acts from incidental touching for sexual gratification to outright forcible rape.  There are over 20 different categories of sexually related crimes and some of the things you’d think would be the most serious — like having sex with your daughter — only rank as low-level felonies (if the daughter is 17 or over).

One of these crimes is called “forcible touching.”  A person is guilty of forcible touching when “he or she intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire.”

Intimate parts have been defined by case law to include someone’s neck, if normally that part of a person would not be touched in the course of the normal relationship between the parties.  It clearly includes a woman’s breasts or vagina.  However, the catch is that the party must be touched “forcibly,” defined to mean without the express consent or acquiescence of the person being touched.

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And herein lies the rub (so to speak).   Although Donald Trump bragged of touching women’s breasts and vaginas (he used a different word), if the women acquiesced, i.e., let him do it without so much as a boo, defense attorneys would argue it was not forcible.

Technically, although Donald Trump could be prosecuted for committing the B-level misdemeanor forcible touching, he could do it with impunity, unless and until someone complained about it, first to him, and then a prosecutor.

This apparently hasn’t happened.

The statute of limitations in New York for misdemeanors is two years, meaning the person offended would have to bring such a complaint to a police officer’s attention within two years of the date it happened, or the case could not be pursued.

This hasn’t happened either.

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Maybe, as Donald Trump claims, the women were so thrilled by the Donald’s celebrity that they did not mind having their breasts groped or their vaginas grabbed — I mean after all, he is Donald Trump.  What’s not to like?

Millions of women have experienced this kind of baloney from relatives, strangers, and people in power.  And although it’s unpleasant, the plain fact is that it’s a pain in the neck to go after the person who did it. Unless the person does it repeatedly — such as your boss or colleague and you have to take action — many women (even in our day and age) just suffer and bear it. Others say, “Get your hands off me, you creep” — but only a few report it to police.

Of those groped by Donald, nobody did.

So technically, while Donald could be guilty of a crime for what he’s claimed he’s done, those women who came forward, came forward too late to prosecute.

But maybe down the road, the next woman won’t hesitate.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.