State of New Hampshire v. Armando Lisasuain
167 N.H. 719 (2015)
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Rule of Law:
New Hampshire's aggravated felonious sexual assault statute, which requires a victim to indicate lack of freely given consent 'by speech or conduct,' permits a finding of non-consent based on a victim's passive inaction, especially when viewed within the totality of the circumstances, including age difference and relationship dynamics.
Facts:
- In October 2010, the 14-year-old victim was living with her mother and siblings in Manchester.
- Armando Lisasuain, the 46-year-old defendant and a family friend, had been staying at the victim's home a few nights each week after moving out of his cousin's apartment.
- On October 23, the victim returned home from school detention to an empty house and lay on the couch to watch television.
- Lisasuain arrived, sat on the couch, initiated a foot rub, then asked if she liked her toes sucked, and proceeded to suck them, which shocked the victim.
- Lisasuain told the victim she was "dangerously beautiful" and that "he was going to tear [her] up," which she found scary and thought was a sexual term.
- Lisasuain then asked the victim "if he could go lower," which the victim assumed referred to her vagina but did not answer because she was in shock.
- Lisasuain pulled down the victim's pants and underwear, moved her legs onto or above his shoulders, and performed cunnilingus and digital penetration on her.
- Lisasuain stopped the sexual acts when he received a telephone call and subsequently left the home.
- Approximately two weeks after the assault, the victim disclosed the incident to staff members and her mother while residing at a girls' shelter.
Procedural Posture:
- Armando Lisasuain was convicted by a jury in Superior Court (Garfunkel, J.) of two counts of aggravated felonious sexual assault, among other offenses.
- Following the close of the State’s case, Lisasuain moved to dismiss the aggravated felonious sexual assault charges, alleging insufficiency of the evidence regarding lack of consent; the trial court denied this motion.
- After the jury verdict, Lisasuain moved for judgment notwithstanding the verdict (JNOV), again challenging the sufficiency of the evidence of the victim’s lack of consent; the trial court denied this motion.
- Lisasuain appealed his conviction to the Supreme Court of New Hampshire, arguing that the trial court erred by finding insufficient evidence of lack of consent, possibly erred by not disclosing more documents from in camera review of victim’s records, and erred by not allowing cross-examination of a police officer about his interrogation of Lisasuain.
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Issue:
Does a victim's passive inaction or lack of affirmative response, when considered alongside the totality of the circumstances, constitute "conduct" indicating a lack of freely given consent under RSA 632-A:2, I(m)?
Opinions:
Majority - CONBOY, J.
Yes, a victim's passive inaction or lack of affirmative response, when considered alongside the totality of the circumstances, constitutes "conduct" indicating a lack of freely given consent under RSA 632-A:2, I(m). The court affirmed the trial court's denial of Lisasuain's motion for judgment notwithstanding the verdict, finding sufficient evidence of lack of consent. The court engaged in statutory interpretation of RSA 632-A:2, I(m), which defines aggravated felonious sexual assault, in part, as sexual penetration where "the victim indicates by speech or conduct that there is not freely given consent." Applying the plain and ordinary meaning, the court referenced Black's Law Dictionary's definition of "conduct" as "[p]ersonal behavior, whether by action or inaction, verbal or nonverbal," and Webster's Third New International Dictionary's definition of "indicate" as "to show the probable presence or existence . . . of: give fair evidence of: be a fairly certain sign or symptom of: reveal in a fairly clear way. The court adopted the trial court's reasoning, emphasizing the 14-year-old victim's complete non-participation in the sexual acts performed by the 46-year-old defendant. Specifically, the victim did nothing when Lisasuain began sucking her toes, did not give permission, and did not help him. When he asked to "go lower," she again did nothing; she did not remove her pants or underwear, spread her legs, or position her body, as Lisasuain physically performed these actions without her aid. Furthermore, she did not respond to him in a way an intimate partner might, such as discussing the activity, making verbal sounds of participation, or touching him. Considering the totality of the circumstances, including the significant age difference and the family friend relationship, the court concluded that the victim's lack of any response or assistance was sufficient for a rational jury to find beyond a reasonable doubt that her conduct indicated non-consent. The court also cited RSA 632-A:6, III, which states that a jury is not required to infer consent from a victim’s failure to physically resist a sexual assault. Regarding Lisasuain's other arguments, the court found no unsustainable exercise of discretion by the trial court in its in camera review of victim's records or in excluding evidence of the defendant's lack of admissions as inadmissible hearsay.
Analysis:
This case significantly broadens the interpretation of "conduct" in New Hampshire's sexual assault statute, establishing that passive inaction or silence can be a sufficient indication of non-consent, particularly within a coercive context or power imbalance. It clarifies that a victim is not required to verbally or physically resist to prove lack of consent, thereby aligning the legal standard with the realities of trauma and abuse. This ruling reinforces a victim-centered approach to consent, moving away from a requirement of overt resistance towards a recognition of silence or lack of participation as a clear indication that consent was not "freely given." This interpretation has broad implications for future sexual assault prosecutions, reducing the burden on victims to "prove" non-consent through active resistance.
