Recently, we came across this image on Facebook: two baseball players, one patting the other on the rear in a display of sportsmanship, with the caption, "It's not sexual harassment if you say, 'Good game.'" It's kind of funny--there are not too many situations in which it is considered acceptable for one person to smack another on the behind, but somehow, athletics is one situation in which it seems to be okay. Still, the image and its caption started us thinking about the subtleties that can have a profound impact on determining whether something is appropriate and acceptable or inappropriate and even illegal. If one athlete pats another on the rear and says, "Good game," or some similar words of encouragement or support, it is considered a show of sportsmanship. In general, no one thinks twice. If a person performs the exact same act on another person at the office, it is highly unlikely that saying, "Good presentation," is going to negate any impropriety of the act. In fact, under many circumstances, an unsolicited pat on the rear could bring either a civil suit in a sexual harassment claim or even criminal charges in a sexual battery complaint. Oklahoma law defines sexual battery in 21 O.S. 1123 as "the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner," under one or more of three specific circumstances:
- Without the other person's consent to such contact
- When committed by the employee of a government agency against anyone in the custody or under the supervision of that agency, regardless of apparent consent
- When committed by a school system employee aged 18 or older against any student in the same system who is 16 to 19 years old, regardless of apparent consent.
There are four qualifiers for sexual battery: (1) intentional (2) physical contact (3) for sexual purpose (4) without actual or legal consent. In order to obtain a conviction for sexual battery, the prosecution must be able to prove all four elements. Obviously, saying, "Good game," will not excuse an act of sexual battery; however, there are situations in which physical contact may occur in which such contact is absent intent or sexual nature. Accidentally brushing against someone is not sexual battery; however, intentionally brushing against someone's body using "accident" as a ruse is still considered a sex offense. Certain forms of horseplay may be unprofessional, but fall short of criminal behavior. When prosecuting an act of physical contact as sexual battery, the district attorney must look at the whole scenario for indicators of sexual intent, not just specific details. A criminal defense attorney likewise must look at the total picture in sexual battery defense. The state's sexual battery statute is vague--a simple word or phrase cannot mitigate a sex offense, but neither is every act of unwanted physical contact a sex crime.