Let me say it clearly, and in advance: Some readers might find the following post NSFW. There are no pictures, but I'm going to mention, in some detail, portions of female anatomy. So if that's something you don't want to read, just skip on over this post and move on to the next.
Okay?
This opinion by Justice Earl involves one of the all-too-typical "massage that turns into a sexual one without the patient's consent" prosecutions. The massage therapist conducts "normal" massages with customers but allegedly touches things he's not supposed to touch with a wide variety of female patients. He's charged with numerous counts of sexual assault, gets convicted, and is sentenced to 15 years in prison.
You can read all 47 pages if you'd like. But the opinion largely consists of what you'd think it would consist.
I only want to talk about a single sentence; one that spans pages seven and eight of the opinion.
Backstory facts first. Counts 3 and 4 concern one of the massages that turned nonconsensually sexual, so the particular details are relevant. (With a trigger warning that they're distinctly sexual.) Here they are:
"The second massage started the same way the first one did. Defendant left the room while R.B. got undressed, lay facedown on the table, and covered herself with a sheet. Defendant came back into the room and began massaging R.B. from her shoulders to her lower back. While massaging her arms, he lifted them in a way that exposed her breasts, and she could feel air on her nipple area. Defendant then moved to her legs. R.B. testified that when he moved the sheet to the inside of her legs, it did not feel as secure as it had during the first massage. He massaged up and down each leg several times and touched her labia. He then put his left hand underneath her pelvis and placed one of his fingers directly on her clitoris. He started moving his fingers back and forth on her clitoris. He did this about five times before R.B. realized she had gotten excited and “wet down there.” She testified she “blanked for maybe one or two rubs, and then I kind of came to and was like, wait a minute, I’m getting aroused in a professional massage. This has to stop.” She said, “Okay,” and defendant stopped."
Based on these facts, Count 3 alleged sexual penetration by force, violence or fear, which is a more serious offense than pure sexual assault. Among other things, that offense requires a sexual penetration, whereas sexual assault does not.
In a typical case, the sexual penetration occurs because the perpetrator allegedly penetrates into the woman's vaginal opening. But that didn't happen here. Instead, the defendant touched the victim's labia and placed his finger "directly on her clitoris" began "moving his fingers back and forth" thereupon.
Does that constitute "penetration" under the statute? Here's what Justice Earl says about that:
"Count 3 was based on R.B.’s testimony that defendant touched her clitoris, and defendant does not challenge the sexual penetration element of that count. Nor could he, because case law teaches that contact with the clitoris, which is located inside the labia, constitutes sexual penetration within the meaning of section 289. (People v. Quintana, supra, 89 Cal.App.4th at p. 1371.)."
I will readily admit that I am not a medical expert, and further, that I do not personally possess the relevant body parts.
But I don't think that second sentence is correct. Either doctrinally nor anatomically.
Anatomically -- and I welcome the views of anyone with more expertise than mine in this area -- while I believe that it is generally accurate to state that "the clitoris [] is located inside the labia," that is not a statement that I believe to be categorically true. This anatomy is relevant because Justice Earl believes that touching a clitoris necessarily constitutes penetration because (1) the penetration statute includes penetration of the folds of the labia, and (2) the clitoris is always located inside the labia, which in turn means that touching the clitoris necessarily involves penetrating the labia.
I agree with the first (legal) predicate, but not the second (factual) one, which in turn invalidates the conclusion.
My (admittedly) limited understanding -- which I've attempted to confirm on the internet, albeit within the confines of the fact that I'm at work and don't exactly want my browser history filled with all of the relevant searches or resulting web sites -- is that a clitoris may well be, and often is, located inside the folds of the labia, but need not be. Either in particular women (e.g., women with a relatively outsized clitoris, in which it may extend outside of the labia) and/or in particular settings (e.g., after arousal, in circumstances in which a clitoris may become engorged and extend outside the folds). If those facts are anatomically accurate, then it's not true, as a categorical matter, that -- as here -- the fact that the victim testified that the perpetrator placed his finger "directly on her clitoris" is necessarily proof (much less proof beyond a reasonable doubt) that either the inner or outer labia was penetrated. We'd need to know more to establish penetration. (This is unlike penetration of the vagina, which is the classic way in which most defendants are found guilty under the statute.)
Wholly beyond anatomy, I also don't think that the case that Justice Earl cites for that proposition, People v. Quintana, in fact says what Justice Earl thinks it says. That case involved a defendant who digitally penetrated a five-year old girl, and involved direct penetration confirmed by a medical exam that showed "blunt force penetration of hymenal tissue" and "irritation of the perihymenal tissue," "a laceration and broken capillaries at the posterior fourchette," and an "abnormal shape of the border of the hymen [] indicative of a recent injury." In short, there, the little girl was clearly digitally penetrated; it wasn't just that the perpetrator touched her clitoris.
Yes, in the very final sentence of the opinion, the Court of Appeal utter the line: "[C]ontact with the hymen as well as the clitoris and the other genitalia inside the exterior of the labia majoris constitutes 'sexual penetration' within the meaning of section 289." But not only was that statement unabashed (and unexplained) conclusionary dicta, but the underlying case didn't even involve a clitoris (nor touching thereof). Touching the hymen of a four-year old is, anatomically and otherwise, not the same vis-a-vis "penetration" as touching the clitoris of an adult.
So I'd take out the last sentence on page 7 of today's opinion. I don't think it's right. Not categorically, anyway. It's sexual assault, for sure. And, in lots of cases, it might also constitute penetration. But I do not believe that it's true that the touching of a clitoris necessarily involves penetration of the labia. So no need to say so here, especially since defendant -- rightly or wrongly -- conceded penetration here.
It's a theme in the literature that every woman's body is different, there's no "normal," and it's all wonderful. I'd not put in writing that one's clitoris is never outside one's labia unless it's definitely and categorically true.
