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Supreme Court wrestles with penal code in sex with minor case

In a matter that significantly perplexed the Kentucky Supreme Court concerning whether "fisting" constituted a "sexual act," the court affirmed the conviction of Kevin Ray Hillard, who paid a 15-year-old for this service. This was a 6-1 decision.

A dissenting justice lamented the court's apparent disregard for the defendant's fundamental due process rights, expressing concern over their zeal to uphold the conviction in their February 17 ruling.

A jury in Ohio County Circuit Court found Kevin Ray Hillard guilty of unlawful transaction with a minor, a felony, for inducing a teenager, A.W., to participate in prohibited sexual activity. A related misdemeanor charge, for supplying an alcoholic beverage to a minor, also resulted in a conviction. The sentence for the felony offense? A 20-year prison term.

The accusations stem from a gathering held at Hillard's Beaver Dam home in 2001. Four or five adults and two teenage boys, A.W. and N.M., were in attendance. At trial, A.W. stated that Hillard offered him $20 to perform fisting, a proposition he accepted. He proceeded to use a condom. Hillard then solicited A.W. to further the act with additional instructions to hit and insult. Another witness claimed that Hillard later reported that A.W. had performed the act and found it gratifying.

The manner in which this matter came to the attention of law enforcement authorities remains undisclosed. The local prosecutor, having become aware of Hillard's party, subpoenaed N.M. and one of the attending adults.

Hillard appealed his conviction on multiple fronts, asserting insufficient evidence supporting the illegal sexual activity charge and alleging the prosecutor acted improperly by subpoenaing potential witnesses. N.M., in his testimony, alluded to the intimidation he felt.

Justice William Cooper, presiding over the appeal, confronted a key difficulty in the interpretation of the relevant statute. The "unlawful transaction" statute lacked a precise definition for "illegal sexual activity." The trial judge, it seems, had assumed that the conduct matched the definition. The judge accordingly instructed the jury on this presumption.

Seeking clarification within the penal code, the appellate court determined that the Kentucky legislature hadn't explicitly addressed fisting in crafting the law. A review of relevant statutes revealed that a prostitution statute covers sexual conduct, defined as intercourse or acts of sexual gratification involving genital organs. The anus, however, was excluded. The statute also covered various forms of deviate sexual intercourse, which includes acts involving the sex organs of one person and the mouth or anus of another. Furthermore, the law covered instances of penetration of the sex organs with a foreign object. The definition of "foreign object" did not encompass a fist and the anus wasn't classified as a sex organ.

The court ultimately landed on a statute that conceivably criminalized the conduct: the misdemeanor of third-degree sexual abuse. This statute's definition of sexual contact encompassed any touching of a person's sexual or intimate parts to satisfy either party's sexual desires. Cooper determined that the anus qualified as an intimate area, and the reported gratification further supported the claim that fisting fulfilled a sexual desire.

Cooper also held that the victim's active role in the act didn't change Hillard's culpability.

Regarding the alleged prosecutorial misconduct, Cooper observed: "The Commonwealth acknowledges the improper use of subpoenas to gather pretrial statements. However, the misconduct will not warrant either dismissal of the charges or retrial. The appropriate corrective action is to exclude any information obtained from the improper interview."

The court determined that N.M.'s favorable testimony at trial proved that the prosecutor's threat didn't prevent his testimony.

Justice Martin Johnstone, dissenting, described the outcome as profoundly objectionable, using the phrase "it stinks." Johnstone asserted that Hillard was inadequately informed of the specific charges against him. "Hillard's indictment," Johnstone wrote, "lacked clarity about which prohibited sexual activity he was accused of inducing the minor to engage in."

The state, initially arguing a prostitution violation, was ultimately refuted by the court. Their argument failed as the definition of prostitution, centered on sexual conduct involving the sex organs, did not apply to this case.

Johnstone lamented that the majority crafted a novel theory, retrospectively applying it to a trial long concluded. He noted that Hillard was never charged with third-degree sexual abuse. He labeled the court's reasoning an absurdity.

"Regardless of the majority's designation, it's repugnant," Johnstone concluded. "To echo Gertrude Stein, 'a skunk is a skunk is a skunk.' While the majority might maintain composure, I cannot."

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