¶1concurring. Oían West has been convicted of first degree sexual abuse and sentenced to imprisonment for six years and a $5,000 fine for putting his arms around the fifteen-year-old prosecutrix and touching her breast. I do not find this conduct to be that defined in the statute describing the crime. In my opinion there was not the sort of “forcible compulsion” the Arkansas General Assembly condemned in Ark. Stat. Ann. § 41-1808(l)(a) (Repl. 1977) by providing: “A person commits sexual abuse in the first degree if ... he engages in sexual contact with another person by forcible compulsion. . . .”
¶2The crucial direct examination testimony of the prosecutrix was as follows:
Q: And he got in front of me at first, and he said, “This is the trail.” And then I walked, and I walked on ahead in front of him a little ways. I went to the cliff, and I went two feet in front of the cliff, and he came from behind me, without me knowing, put his arms around me, and compressed, and put his right hand over my left breast firmly, and I had to break away from his arms, and I just took back to the truck. I ran back to the truck.
Q: And you stopped in front of the cliff?
A: Yes, ma’am.
Q: And then tell me again what happened.
A: He came up behind me without me knowing, put his arms around me, put his right hand over my left breast, kissed me on the neck.
Q: When he put his hand over your breast, how did he hold your breast?
A: He cupped me firmly.
Q: Okay, so he squeezed your breast, is that what you are saying?
A: Yes, ma’am.
Q: And he kissed your neck?
A: Yes, ma’am.
Q: Okay.
A: And then I broke. I had to remove his arms, you know, hard, and then I just took off back to the truck.
A: So, you had to remove his arms hard, you said, break away?
A: Yes.
Q: Okay, did you have any forewarning that he was going to come up behind you like that? Did he say anything?
A: No, ma’am.
Q: So, he didn’t say anything to let you know that he was going to approach you?
A: No, ma’am.
Q: And when you ran back to the truck, then what happened?
A: I just got in. I didn’t know where else to go, because I didn’t know that place. I got in, and then he came around and got in. I told him I had to go home. That my mom was going to be worried about me. He turned the truck around, and then while we were driving down the road, that same dirt road, he told me not to tell any of my friends, because they might get jealous.
Q: Not tell any of your friends about what?
A: About me being with him.
Q: Okay. Okay. What happened then?
A: He drove on down the road, and then he drove me to the end of my driveway. He pulled up at the end of my driveway, and then he goes, “I’m just going to drive you to the end of the driveway.” And so, before I was starting to get out and I looked over at him, and I saw him coming toward me. He put his hand on the seat and leaned over. I turned my face real quick, and he kissed me on the cheek. And then I got out of the truck and just started walking up fast towards our house.
¶3“Forcible compulsion” is defined in Ark. Stat. Ann. § 41-1801(2) (Repl. 1977) as “physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” The commentary to the statute includes the following:
The term “forcible compulsion” was used by the legislature in 1967 in redefining the offense of first degree rape. See, Act. 362 of 1967, § 1 previously indexed as Ark. Stat. Ann. §41-3401 (Supp. 1973). Although the term was not statutorily defined, the legislature presumably intended to effect no change in the degree of force necessary to constitute the offense of rape. This chapter also employs the term “forcible compulsion” to define rape and other aggravated sex offenses. In essaying a definition of the term, the Commission likewise intended no change in traditional doctrine. Although, as indicated above, the definition is derived from the New York Penal Code, it was found to comport well with Arkansas decisional law. See, Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973) (“It may be violence or it may be putting the woman in fear, physically or mentally”). . . .
¶4Most of the cases dealing with this definition have to do with the evidence necessary to show a sufficient threat of physical harm to rebut an allegation or implication of consent to the sexual conduct alleged. The case of Spencer v. State, cited above in the quoted statutory commentary, was such a case. There Chief Justice Harris dealt with the contention of an appellant that there was no forcible compulsion despite testimony that he had abducted the prosecutrix at knife point but had displayed no weapon a short time later when sexual intercourse occurred. The opinion reviewed a number of cases including Bradley v. State, 32 Ark. 704 (1878), in which we made it clear that the quantum of force is irrelevant as long as “the act be consummated against the will of the female.” The relevant instruction approved in Spencer v. State, supra, was:
Now with regard to force used, it may be violence or it may be putting the woman in fear, physically or mentally. In other words, the test is — was it against the will of the party upon whom the act was committed. [255 Ark. at 263, 499 S.W.2d at 859.]
¶5Most other courts which have considered the definition of forcible compulsion have done so in the context of rape cases. While not directly on point factually, they are illustrative of what is meant by the term “forcible compulsion.”
¶6The drafters of the Model Penal Code discussed the concept of compulsion by force or threat and pointed out that sometimes, in order to make it perfectly clear that a token initial resistance is not enough, existing law specified that a woman must resist to the utmost. The drafters felt that the text requirement that the victim be compelled to submit adequately retained the concept that a token initial resistance is not enough while avoiding the ambiguity of the “utmost” phrase. Model Penal Code § 270.4, Comments at 246 (Tentative Draft No. 4, 1955.)
¶7Several states which have statutes similar to ours use the term “forcible compulsion” to define nonconsensual sexual conduct as a criminal act. Alabama, Ala. Code § 13A-6-61; Hawaii, Hawaii Rev. Stat. § 707-730; Kentucky, Ky. Rev. Stat. § 510.040; Missouri, Mo. Rev. Stat. § 566.030.1; Oregon, Or. Rev. Stat. § 163.375; Pennsylvania, Pa. C.S. 18 § 3121; and Washington, Wash. Rev. Code §§ 9A.44.040,050, Alabama, Hawaii, and Kentucky retained the idea that more than a token initial resistance is required by describing the crime as requiring forcible compulsion sufficient to overcome earnest resistance in its definition.
¶8Pennsylvania has recently had occasion to interpret “forcible compulsion.” In Commonwealth v. Mlinarich, 498 A.2d 395 (Pa. Super. 1985) the court addressed the issue of the legislature’s intention when it defined rape as sexual intercourse with another person “by forcible compulsion” and the interpretation to be placed on the phrase “forcible compulsion.” After a long discussion of the common law and its inadequacy in defining rape because of its emphasis on lack of consent and the requirement that the victim resist to the “utmost” and the efforts of the American Law Institute and the Model Penal Code to find a more satisfactory definition the intermediate appellate court turned to the state supreme court’s interpretation of forcible compulsion. Quoting Commonwealth v. Perrin, 484 Pa. 288, 398 A.2d 1007 (1979), it was held that rape, as defined by the Pennsylvania legislature requires actual physical compulsion or violence or a threat of physical compulsion or violence sufficient to prevent resistance by a person of reasonable resolution.
¶9Again in Commonwealth v. Rhodes, 510 A.2d 1217 (Pa. 1986) the issue was the definition of “forcible compulsion.” The Pennsylvania Superior Court had reversed a conviction for forcible rape of an eight-year-old third grader saying that there was insufficient evidence of forcible compulsion or threats. The supreme court reversed. Quoting Wharton’s Criminal Law, Torcía, C. (14th Ed.) § 288, the supreme court said that “force” required in the definition of rape was not the force inherent in the act of penetration, but rather the force actually used or threatened to overcome or prevent resistance by the victim. From its review of the law and historical development of the term, the Pennsylvania Supreme Court held that forcible compulsion includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.
¶10In Commonwealth v. Stambaugh, 512 A.2d 1216 (Pa. Super. 1986), Stambaugh was convicted of raping his stepdaughter. He appealed, arguing insufficient evidence of “forcible compulsion.” The appellate court held that the “force . . . need only be such as to establish lack of consent and to induce the woman to submit without additional resistance” and affirmed the conviction.
¶11In Salsman v. Commonwealth, 565 S.W.2d 638 (Ky. App. 1978), Salsman was convicted of sexual abuse in the first degree and appealed on the failure to prove “forcible compulsion.” In discussing the definition of forcible compulsion the Kentucky Court reviewed the commentary accompanying the penal code section. The commentary stated in part that:
... the term includes a threat, express or implied, that overcomes earnest resistance by placing a person in fear. . . [T]he threat must be communicated, and it must be the cause of the submission. . . [T]he phrase “earnest resistance” requires more than token initial resistance but less than showing that the victim was physically incapable of additional struggle.
¶12There surely was no “violence” in the instance before us now. Nor was there any “compulsion” in the sense of requiring the prosecutrix to perform some sexual act against her will. From the very moment she expressed her disapproval of the appellant’s conduct by breaking away from his grasp there is no evidence that the appellant in any way coerced the prosecutrix.
¶13No matter now disgusting we may find the act of this amorous preacher and grandfather of the prosecutrix’s best friend, I cannot say the evidence was sufficient to show the “forcible compulsion” necessary to a conviction of first degree sexual abuse.
¶14There is no showing that the appellant used any force whatever after the prosecutrix’s first display of resistance. I cannot imagine we would be considering this case had the appellant been someone more nearly the age of the prosecutrix. This appellant must be treated equally under the law.
¶15I agree the conviction must be reversed, but I would include as a basis for reversal the state’s failure to prove “forcible compulsion.”
¶16Supplemental Opinion on Denial of Rehearing January 26, 1987
¶17 We deny the State’s petition for rehearing, but for purposes of clarification, we briefly address the Rape-Shield-law argument raised by the State but not specifically mentioned in the majority opinion. That law excludes evidence of any kind about the victim’s prior “sexual conduct” and defines “sexual conduct” as deviate sexual activity, sexual contact or sexual intercourse. See Ark. Stat. Ann. §§ 41-1810.1 and 41-1810.3. As conceded in the State’s petition, the victim’s purported conduct, as proffered by appellant here, simply is not sexual conduct as that term is defined by law. Thus, appellant’s proffered, relevant testimony clearly was not excludable under the Rape-Shield law, and the trial court, in ruling otherwise, committed error.