JACKSON — State Rep. Mike Yin, D-Jackson, and other Wyoming officials, including Jackson Chief of Police Todd Smith, are taking a hard look at revising the state’s 18-year-old sexual battery law after a Jackson woman questioned how police and prosecutors handled her case.
In December 2018, Jillian Miller was working as general manager at Hole Bowl when a drunk customer groped her. The police were called, and officers cited the man with unlawful contact. Though some said the crime should have been elevated to a high misdemeanor of sexual battery, the defendant ultimately pleaded down to “breach of peace,” a low misdemeanor commonly applied to noise complaints, carrying a $500 fine and no jail time.
Yin said that after reading about Miller’s case in the News&Guide, he met with Chief Smith. State Sen. Mike Gierau, D-Teton, and Rep. Andy Schwartz, D-Teton, have also met with Smith to learn more about the sexual battery statutes.
Yin also plans to meet with Teton County Prosecutor Erin Weisman and talk later this week with Miller and the Wyoming Association of Sheriffs and Chiefs of Police to learn more about the statute and how it could be improved.
“I want to make sure we have effective laws on the books,” Yin said, “people can both make sure they get closure on something like this happening to them and also make sure people are held accountable for their actions.”
Miller said she was thrilled that Yin took an interest in her case.
“It really validated the article that was written and the vulnerable space I put myself in,” Miller said. “I have a lot of gratitude that this is a next step.”
According to Wyoming statute, sexual battery is when someone unlawfully subjects another to “sexual contact,” defined as “touching, with the intent of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or of the clothing covering the immediate area of the victim’s or actor’s intimate parts.”
In her case, Miller said she was troubled when prosecutors told her they needed to prove the suspect was “aroused” from groping her breast.
“I wholeheartedly agree that there shouldn’t be a standard of, ‘Did he have pleasure from what he did?’” she said. “Because the act itself shouldn’t be judged on his reaction. That’s ridiculous. It’s a power thing, so I think that’s really important.”
Teton County prosecutors said sexual battery cases can be challenging to prosecute in part because “you’ve got to convince the jury that that behavior was obviously for arousal,” Teton County Chief Deputy Prosecutor Clark Allan told the News&Guide previously.
The Wyoming Legislature introduced the sexual battery statute in 2001. The last amendment was in 2007.
Kristen Schwartz, supervising attorney at the Wyoming Coalition Against Domestic Violence and Sexual Assault, said prosecutors can operate within the existing statute without proving arousal, because the statute requires “sexual arousal, gratification or abuse.” They need to prove only the “abuse” part, which she believes should have been possible in a case like Miller’s.
“Any sort of forced contact would be abuse,” Schwartz said. “I don’t know if they necessarily have to prove sexual arousal or gratification. They just have to prove it’s abusive touch. When you don’t have somebody’s consent and you touch their intimate part, I would think that would meet the definition of abuse, no matter whether or not he received sexual gratification or arousal.”
Schwartz acknowledged that the statute is probably aimed at distinguishing between accidental touch and sexual violence. If that’s the case, she suggested it could be better for the statute to clarify that the “sexual contact” is criminal when it’s intentional and not unintentional.
“I’d rather it be written in a way that makes the person who did the touching have to prove it was accidental if that’s what it was,” Schwartz said.
In a follow-up interview Monday, Chief Smith said he thinks “the statute has been an issue since the day it was written.” He said it is problematic from a law enforcement perspective because it’s difficult for officers to establish probable cause for the intent of why someone intimately touched another person without their consent.
“We need a common sense law and something that works in many scenarios,” Smith said.
Prosecutors have to prove a higher burden, beyond a reasonable doubt. Teton County Prosecutor Erin Weisman is also involved in discussions about changing the statute. She brought it up to other Wyoming county attorneys at a conference last week. Their feedback is pending, she said.
“I feel like it’s my duty to raise the issue,” Weisman said. “But we need total support from the prosecutor’s association.”
Weisman, too, has met with local lawmakers to discuss potential changes to make the law applicable to more cases. She and Chief Smith have talked about specific language within the law.
“We talked about inserting intentional touching and striking the arousal, gratification and abuse part,” she said.
But she is cautious about unintended consequences of changing language in the law, like affecting juvenile cases in which the same sexual contact definition is used. The definition of sexual contact is used in several Wyoming statutes, case law and annotations — sexual abuse of a minor in the first, second, third and fourth degrees, sexual assault in the first, second and third degrees, sexual battery, public indecency, exploitation of a vulnerable adult and incest.
“Any amendment would need to be carefully crafted, as the reach is wide under Wyoming law,” Weisman said.
They also don’t want to criminalize the accidental brushing of a fellow shopper in a narrow grocery aisle, she said.
Weisman expects those nuances to be closely examined by attorneys and lawmakers if a bill is proposed. Stakeholders will look outside Wyoming, at other’s state’s laws and definitions, as they decide the best way to proceed.