I had two reactions to this case. Both of which I thought entirely appropriate.
The first was visceral. Eeeewwww! How sick do you have to be to repeatedly molest your own granddaughter? How even more perverse do you have to be to repeatedly molest four of your own granddaughter? And how utterly, utterly twisted do you have to be to take a photograph of you molesting one of your granddaughters and with your penis in her twelve-year-old mouth. Disgusting. Disgusting disgusting disgusting.
Oh, yeah. And the guy's got two strikes against him already. So it should not come as a surprise to anyone that he gets three consecutive terms of 45 to life. This dude is not sympathetic. One iota.
So that's my first reaction. Entirely emotive. Bleeeeech! Emotive but, I might add, entirely validly. IMHO.
I nonetheless had a doctrinal reaction too. The legal question in the appeal is whether the jury was properly instructed as to what it means to engage in "lewd or lascivious conduct" with a child. That's surely something a jury needs instructions about, and the trial court told the jurors that this required the touching of a child with the intent to sexually arose either the child or the person doing the touching, but that "the touching need not be done in a lewd or sexual manner."
Now, the defendant here -- Jimmy Sigala -- totally touched his granddaughters in a lewd, sexual, gross and disgusting manner. So I couldn't agree more fully with Justice Kriegler's concluding statement that even if this instruction was somehow wrong, "A clearer case of harmless error is difficult to imagine." Right on.
But I'm somewhat less certain of Justice Kriegler's conclusion that the instruction is correct and that the touching doesn't at all need to be lewd or sexual, and that the only thing that matters is the defendant's intent. My reaction was: "Really?"
Let's test that hypothesis. Imagine that a guy, Footsie, gets aroused by children's feet. So he takes a job putting on children's shoes. He never touches the kids any differently than any other shoe salesman, and neither the kids nor anyone else ever notices that he's aroused. He's clearly guilty of a major felony, and massive prison time, under the Court of Appeal's holding.
But why? He's not done any touching that anyone else (or his replacement) wouldn't have done. He hasn't caused any actual harm. He touches a toe or someone else does. What's the difference? Is it really right to punish someone purely based upon their intent, without any care whatosever that the actual act that they're performing is the same as anyone else?
The law and economics part of me says: "Sure. Why not." We might rationally want to deter people like Footsie from becoming shoe salesmen on the fear that they might generally go too far, perhaps fondling the shoes more than is necessary. It's more efficient to prefer someone who's not aroused, and hence that's what we want. Moreover, we're concerned that someone might see Footsie's arousal, and if they do, that's a big downside, and can create psychological scars on the kids and/or their parents. Hence we're allowed to, and rationally should, prefer non-fetish shoe salesmen for children, and can punish those otherwise situated.
Now, I'm not really convinced that efficiency concerns actually motivate the Legislature in this area. In fact, I'm quite convinced of the opposite -- that it's almost entirely the "eewwww" factor that motivates these laws, as well as the fact that we could care less about being potentially unfair to anyone who gets aroused by kids. I have no doubt that the attitude is: "Screw the sickos."
What's true for shoes is true even for other beneficial practices. Let's say a parent tends to get aroused when he's holding his kid in the pool. He holds the kid just like any other parent does, it's just that he gets excited by it. We punish that. Not because we want him to let go of the kid, or not take him to the pool, which is a beneficial practice. But because we think he should get others to do that, rather than a guy who's aroused by the experience. It's purer. It's better. Plus, emotionally, we want to put anyone who gets an erection from his own child in prison.
So I understand all that. At both an intellectual as well as doctrinal level. So what Justice Kriegler's saying makes sense. It's the intent that matters, and even if the way you're touching them is no different than what anyone else does, your intent (and intended arousal) is what justifiably puts you in prison.
But all that leads to the following: If the act doesn't need to be a "lewd and lacivious" touching (i.e., touching in a particular, sexual way), why does the act having to be a "touching" at all. Putting on a shoe counts as a felony if you do it to get aroused. So presumably the same should be true for any act -- not just a touching -- that's done with that intent. Get aroused by watching children in a playground? Felony. Even if you simply look at them the same way anyone else does. Get an erection from watching "Eight Is Enough" alone in your squalid bedroom? Lifetime in prison. If an otherwise innocent touching is illegal due to intent, then it's hard to see why any other innocent act doesn't equally qualify as well. As long as you do any act with the intent to arose yourself vis-a-vis a child, you're guilty.
Yet no one -- not even California -- goes that far. Which seems to present problems for the adequacy of the instruction. Or at least the wisdom of the law.
Mind you, one could say: "Well, Shaun, you've just convinced me that any act, not just touching, should be a crime too." Fine with me. Realize that you've pretty much come darn close to criminalizing mere status. But maybe you're fine with that. They're perverts, after all.
But if not, it's somewhat hard to justify the "touching" restriction if the Court of Appeal is right that the "lewd" part doesn't really matter -- that what "makes" an act lewd is that it's done with an intent to arouse. Because then anything, not just touching, should count. Yet that's not what the statute says.
Again, to reiterate: Sigala's totally guilty. Harmless error: Totally true. This sort of stuff ain't okay in the books of anyone, anywhere. It is lewd touching. End of story.
But there's a deeper, and I think more complicated, doctrinal story to be told here. One that's perhaps overlooked because this particular case is so simple. One that relates to the Court of Appeal's first holding: that the instruction is itself correct.
So ponder that as we head into the weekend. As as, ironically enough, I return from co-oping in my four-year-old's preschool class. At which, I assure you, I touched children with only the most loving, blissfully good intent. 'Cause that's the way I roll.
As should we all.