LEWISTON — Idaho seemingly cinched up a hole in its laws last year by adding a groping statute to the books. But after being tested in the courts, the new law may still leave gaps.

Until last year, Idaho was one of two states in the nation without a sexual assault or groping law. The Gem State, along with Mississippi, had little protection against non-consensual touching. Prior to the Idaho Legislature passing misdemeanor sexual battery during its 2018 session, prosecutors relied on simple battery to charge defendants accused of groping adults.

Simple battery allowed for a charge if any “unlawful touching” occurred, but had no sexual component. A group of prosecutors and the Idaho Attorney General’s Office successfully petitioned to add sexual battery to the books to add more protection for adult victims from unwanted sexual touching. It carries the same punishment as simple battery, but covers groping-specific aspects, like a perpetrator’s intent to “degrade” a victim or “gratifying the lust” of the perpetrator. Also, it specifies areas of the body deemed “intimate parts,” regardless of whether the contact occurred over or under clothing. A conviction does not require a defendant to register as a sex offender and is punishable by as much as a year in jail.

Nez Perce County Prosecutor Justin Coleman said the law was needed to catch conduct that wasn’t covered previously.

“Well, we actually met with our legislators last year and pushed for this change, because we had a couple cases we couldn’t go forward on as the law was — which needed to be stronger,” Coleman said.

If a woman wanted to come forward after being groped on a bus or a student was hazed by someone molesting their intimate areas without consent, the previous law was flimsy. This new law was made to combat that.

But sexual battery has a high bar to exceed reasonable doubt to get a conviction. Since it’s only been on the books a year, the law hasn’t been scrutinized much.

But in Jose Vasquez Jr.’s case, Nez Perce County 2nd District Judge Jay Gaskill determined that Vasquez’s drunken grabbing of young women at Hells Gate State Park’s hidden beach did not meet the elements of the new law. Gaskill said, more generally about the law and not Vasquez’ case in particular, that the “intent” portion of the crime carries significant weight and helps judges suss out if a crime was accidental, intentional or somewhere in the middle.

Following a court trial Aug. 5, Gaskill reduced the charges from sexual battery to simple battery and dropped a felony sexual battery of a child charge to simple battery. Vasquez is scheduled to be sentenced Thursday.

In August 2018, Vasquez was intoxicated to the point of stumbling around the beach on a hot afternoon, according to court records. Three young women — a 19-year-old, an 18-year-old and a 17-year-old girl — were at the packed beach playing volleyball, tanning and splashing in the cool water of the Snake River. Vasquez joined an opposite team playing volleyball and began interacting with the young women, calling them “beautiful,” “sexy” and “too hot for the beach.”

The young women had never met Vasquez, then 36. He approached them, reached under the 17-year-old’s arm across her chest, pulling her toward him and reportedly coming into contact with her breast. The girl pulled away from him and Vasquez allegedly picked a new target. He put his hands down the back of an 18-year-old woman’s bikini bottoms and tugged her toward him and also put his arm around the 19-year-old woman’s shoulder, allegedly reaching down to touch her breast. Multiple people saw Vasquez and attested to his drunken, inappropriate behavior toward multiple women.

Each of the women testified during the court trial, saying Vasquez’s conduct made them feel “uncomfortable” and “dirty.” The 17-year-old girl testified through tears that Vasquez came up behind her and reached his arm around her before she got away and his hand trailed down to her buttocks.

“I thought I was in an OK place at the beach,” she said. “I’ve never been put in a position like that where I’ve felt so dirty.”

But under cross-examination by Vasquez’s attorney, Rick Cuddihy, none of the victims answered “yes” when Cuddihy asked if his client “groped” them. Instead, their testimony noted the touching, though not accidental, was applied lightly after the young women escaped Vasquez’s advances. The young women told officers investigating at the time that they were harassed and there was inappropriate touching, but their statements changed subtly a year after the incident. Their testimony was that some of the contact was both over and under clothing. Police reports indicate statements at the time were that Vasquez touched the women over their bikinis.

Idaho already has a number of felony-level sex crimes for a litany of invasive sexual behavior. And any sexual touching of a juvenile by an adult is covered in the felony realm.

With sexual battery, legislators added elements to the crime that required prosecution prove intent, similar to some felony crimes such as rape and lewd conduct.

But isn’t just the act of groping at someone’s private parts intentional?

Prosecutor Coleman thinks so. Coleman said he thought the state proved its case that Vasquez had the intent to sexually arouse himself by touching the young women. In a cellphone video played at trial, Vasquez was seen touching his groin on the outside of his shorts and witnesses reported he touched his genitals under his shorts as well.

“Witnesses saw him touch himself in a sexual nature; to me, that’s where there’s disagreement with the court’s assessment,” Coleman said. “The conduct was to me more egregious than simple battery, and something other than that downplays and sends the wrong message to victims of these types of crimes.”

Gaskill took the case under advisement and issued a ruling the day after the trial and said his reading of the law required the reduction to simple battery.

“There’s no dispute that Mr. Vasquez was inebriated and acting grossly inappropriately,” Gaskill said in court. “But testimony did actually vary on the ways the contact occurred, the duration of the contact were very brief and, most importantly, the specific intent required for those contacts.

“The court does not find that the state — which carries the burden of proof — met the quote, specific intent, unquote,” Gaskill concluded.

Idaho strengthened its laws around groping at a time when sexual assault had entered the national consciousness. President Donald Trump has been accused by multiple women of groping them without consent, and Trump bragged about grabbing women indiscriminately in the infamous Access Hollywood tape.

Legislators may have recognized the national discourse when they approved the sexual battery law. While the law was expanded, the elements to prove it appear modeled after felony crimes and the intent piece allows for interpretation.

In closing arguments Cuddihy said nothing Vasquez did was intended as a sexual act.

“There is insufficient evidence of any intent,” Cuddihy said. “There’s nothing before this court that says my client was involved in sex with any of the witnesses and the testimony was this was very brief and testimony was inconsistent throughout.”

In a phone interview, Cuddihy said Vasquez’s conviction on simple battery won’t be appealed. Cuddihy noted the language in the sexual battery law is similar to felonies and he is unclear about the Legislature’s motivation to include intent in the statute.

“Our laws do need to be updated,” Cuddihy said. “I’m glad that now we have a misdemeanor sexual battery, but, you know, in Washington they have different classes of felonies and misdemeanors. Idaho is devoid of a lot of those statutes, and it’s interesting it still requires the state to have proof the intent was sexual.”

Coleman said both juries and defense attorneys can get hung up on intent. Deciphering the mental machinations of anyone without reading their mind is impossible. So, one has to look at the actions.

“To me, in this case, you won’t find any other type of intent, the conduct was clearly sexual in purpose,” Coleman said.

Holm may be contacted at (208) 848-2275 or tholm@lmtribune.com. Follow him on Twitter @TomHolm4.

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