From today's opinion by Judge Lewis Kaplan (S.D.N.Y.) in Rapp v. Fowler:
Plaintiff Anthony Rapp brings this action pursuant to New York's Child Victims Act against Kevin Spacey Fowler, better known as Kevin Spacey, for sexual assault allegedly committed in Manhattan in 1986 when Mr. Rapp was 14 years of age….
Very briefly stated, Mr. Rapp claims that Mr. Fowler lifted him up, that Mr. Fowler's hand his "grazed" Mr. Rapp's clothed buttock for seconds as he did so, that Mr. Fowler placed Mr. Rapp back down on a bed, and Mr. Fowler then briefly placed his own clothed body partially beside and partially across Mr. Rapp's. Mr. Rapp "wriggled out," got up, and left the premises. Mr. Rapp testified at his deposition that there was no kissing, no undressing, no reaching under clothes, and no sexualized statements or innuendo. He acknowledges that the entire incident took no more than two minutes.
The complaint alleges that Mr. Fowler's actions constituted assault, battery and intentional infliction of emotional distress. Mr. Rapp seeks compensatory and punitive damages….
Under the usually applicable New York statutes of limitations, these claims all would be time barred. In 2019, however, the Legislature enacted the Child Victims Act, which [revives otherwise time-barred claims based on] "injury … suffered as a result of conduct which would constitute a sexual offense … against a child less than eighteen years of age …." …
[Mr. Fowler argues that, v]iewing the evidence in the light most favorable to the plaintiff and drawing in favor of the plaintiff all inferences reasonably drawn, as I must on Mr. Fowler's motion [for summary judgment], a jury could not reasonably conclude that Mr. Fowler's alleged actions constituted "a sexual offense as defined in article one hundred thirty of the penal law." Mr. Rapp's opposition to the motion relies exclusively on Penal Law Sections 130.52 and 130.55, which define the misdemeanors of forcible touching and sexual abuse in the third degree, respectively….
Forcible touching, in relevant part, occurs when a "person intentionally, and for no legitimate purpose … forcibly touches the sexual or intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire." It "includes squeezing, grabbing or pinching." …
The Appellate Division, First Department, of the New York Supreme Court has made clear that the term "intimate parts" as used in Penal Law Section 130.52, subd. 1, is not defined solely in terms of anatomy. In a case involve a kiss on the victim's neck, it wrote: "… We conclude that, under general societal norms, the neck qualifies as an intimate part because it is sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties. Moreover, since 'intimacy is a function of behavior and not merely anatomy,' the manner and circumstances of the touching should also be considered …. Here, defendant stripped naked, climbed onto the sleeping victim, and licked her neck. This conduct clearly fell within 'the plain, natural meaning' of the statute." …
Accordingly, this Court is obliged to consider the manner and circumstances in which the touching allegedly took place in addition to the specific body parts with which contact allegedly was made. In this context, there is a genuine issue of material fact as to whether Mr. Fowler engaged in forcible touching of Mr. Rapp's "intimate parts." … [And] the record now before me, viewed in the light most favorable to the plaintiff, raises a genuine issue of material fact as to whether Mr. Fowler acted "for the purpose of gratifying … sexual desire."
{There is no contention that there was any touching of Mr. Rapp's "sexual parts."}
The court held that the same analysis applied to the third-degree sexual abuse claim as well. Rapp's "simple, common law assault claim" (which was based on "physical conduct placing the plaintiff in imminent apprehension of harmful contact," rather than based on the harmful contact itself) couldn't go forward, the court concluded, because the claim wasn't covered by the Child Victims Act. But the court did allow the battery and intentional infliction of emotional distress claims to go forward.
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