Cunningham v. State’s Empirical Analysis

Citation profile

2 federal appellate · 55 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 59 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““Intent to arouse or gratify sexual desire” is part of the definition of “sexual contact.” I find it significant that the Legislature chose to use the words “sexual contact” — denoting a lesser form of touching than “penetration” — and included the “intent to arouse or gratify sexual desire” in the definitional section. That legislative choice supports the conclusion that the “sexual desire” wording was not intended as an extra element not contained in the sexual assault statutes. Rather, the “sexual desire” language appears to be intended to denote a form of touching, short of penetration, that is sexual in nature. While it may be theoretically possible to commit the various forms of penetration proscribed without the intent to arouse or gratify sexual desire, the Legislature’s inclusion of these acts within the sexual assault statutes is a clear indication that the Legislature believed the acts to be inherently sexual in nature. But, a mere touching may not be inherently sexual, and hence, the Legislature needed to define the conduct in such a way as to indicate its sexual nature. Hence, touching the female sexual organ with the intent to arouse or gratify sexual desire is a lesser-included species of conduct of the intentional or knowing penetration of the female sexual oi'gan.”

   1 later decision quote this exact passage
   e.g. Evans v. State

2. “While the 1983 changes may indicate a legislative preference that the thrust of sexual assault of a child be regarded as more assaultive in nature than sexual abuse of a child, we must not confuse statutory elements in the definition of an offense with evidentiary facts that prove it. That the Legislature altered the nature of the offense does not rule out the fact that an act of causing penetration of the mouth of a child by the penis of another will be accompanied with specific intent to arouse or gratify sexual desire of the actor. The issue is “whether the State’s case as presented to prove the offense charged included proof of [a lesser included offense],” not “whether the primary offense is capable of proof on some theory that would not show [a lesser included offense].””

   1 later decision quote this exact passage
   e.g. Farrakhan v. State

3. “"... [W]hether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case."”

   1 later decision quote this exact passage
   e.g. Bartholomew v. State