Is an unwanted kiss a sexual offence?

On January 5, 2009, a 64-year-old man in Burlington, Ontario was inside a grocery store when he approached a 6-year-old girl near her mother. He bent down when he was next to her and kissed her on her mouth and then kissed her on her forehead. He was shortly thereafter arrested and charged with (common) assault and sexual assault.

An assault includes the use of any form of force upon another person, irrespective of the amount of force used and also includes the raising of one’s hand as if to strike another person if the person raising his hand is in close enough position to do so.

A sexual assault includes but is not limited to rape, forcible sodomy, forcible oral copulation, sexual assault with an object, forcible fondling (e.g., unwanted touching or kissing for purposes of sexual gratification), or threat of sexual assault.

When the Second World War with Germany ended in May 1945, thousands of men and women on the streets were kissing each other albeit they were strangers to each other. It was part of the celebrations. No one thought of this as anything but exuberance. When men and women are at a Christmas party and there is mistletoe hanging above the doorway, no one thinks of it as anything but part of a Christmas ritual when complete strangers kiss members of the opposite sex. When an adult man kisses the forehead of a child, it is generally thought of as an act of affection and nothing more.

However, when an adult who is not related to a child or even living in the same household, or otherwise is not friends with the family of the child, kisses a child on the forehead, people witnessing such an event can become suspicious and often upset.

Many years ago when I was conducting group sessions in a correctional institution in Toronto, one of my participants had been sentenced to prison for fifteen years for murdering an old man who lived across the street. It seems that when the young man returned home from work, he learned that his five-year-old sister had been kissed on the forehead by the old man living across the street. He immediately ran into his room, grabbed a baseball bat, ran across the street, knocked on the old man’s door and when the door was opened, he clubbed the old man to death. At his trial, the young man learned that the old man merely kissed her on the forehead as a means of saying ‘thank you’ to the child who had helped him rake the leaves on his lawn. The young man was convicted of manslaughter. This event never would have come about if the child’s mother hadn’t made a big thing about what had transpired across the street and then told her son what had happened.

However, kissing a child on her lips is something else and it is something that would concern any parent, irrespective as to whether or not the act of kissing on the mouth was done by a family member or friend of the family.

I can’t imagine what motivated the 64-year-old man to kiss a child of tender years on the mouth unless he is a pedophile and got sexually aroused when he kissed the child as he did.

The question that will unquestionably face the court is; was it done as a sexual act?

The assistant crown attorney (prosecutor) will have to establish in the mind of the trial judge that the act was done as a means of achieving sexual gratification.

On February 17, 2006, the Oregon Court of Appeals upheld a ruling that sent Nicholas Meyrovich to life in prison under a 2001 three-strikes law. Meyrovich got his third strike, a felony sex offense, for delivering an unwanted kiss.

Meyrovich, 60, an exterminator, was inspecting the home of a Salem woman in October 2003 when he suddenly grabbed her and kissed her. The woman pushed Meyrovich away, but he took hold of her again and sucked her on the neck, (a hickey) stopping when a neighbor walked in.

Meyrovich was later convicted of first-degree sexual abuse, which under Oregon law requires the forcible touching of the "sexual or other intimate parts" of another person. Meyrovich argued that the neck is not an intimate part of the body; but the court disagreed. Judge David Schuman writing for the panel that decided the case said in part;

"In ordinary social intercourse, one adult does not touch the neck of another adult outside of intimate relationships, at least not without some unusual but reasonable justification."

It would seem that on the surface, that ruling would be applicable in the case of the 64-year-old man who kissed the mouth of the 5-year-old girl.

But did he force himself upon the girl when he kissed her? He probably did because children of that tender age tend to shy away from strangers and the only way he could have kissed her under those circumstances would be to hold her and prevent her from pulling away. That would be a form of assault.

Human lips are sexy. `The skin of the lips is only half as thick as normal skin,' says psychologist Nick Neave, of the Society of Endocrinology. `When women get aroused, their lips flush, just like their genitals do.' This is not to say that small children become sexually aroused when they are kissed on their lips.

Many women say they'd rather be kissed than have sex. According to Dr Andrew Scholey, senior lecturer in psychology at Northumbria University, the reason kissing feels so nice is because of the disproportionately large area of brain dedicated to lip and tongue movements. `Only finger or hand movements occupy as much brain space. On the other hand, the genitals have a much smaller area in comparison.'

When a woman is kissed, signals received by nerve endings in the lips are sent to the limbic system, which releases hormones that tell the pituitary glands to produce gonadotrophin. This hormone attaches itself to the ovaries, causing the release of oestrogen and testosterone, which increases sexual excitement. I am however, not sure that all of this happens when a small child of tender years is kissed.

I don’t think that the 64-year-old man kissed the 5-year-old girl on her lips as a means of expressing a form of affection for her. I believe that his motive was purely sexual. He kissed the child that way because if he kissed a woman that way who was a stranger to him, at a minimum, he would be slapped in the face and at the other end of the reactive scale, he would be kicked in an area of his anatomy that is prone to great pain when struck violently.

His kissing of the 5-year-old girl on her lips was definitely a sexual act on his part.

It is conceivable that the assistant crown will be amiable to a deal. If he pleads guilty to sexual assault, the charge of assault will be withdrawn.

I won’t hazard a guess as to what his sentence will be since I am not privy with respect to his background but if it is a first offence, he will probably get a conditional discharge with a proviso that he seek psychiatric treatment.