A perpetrator need not use his own body to commit unlawful sexual contact under Colorado law, the Court of Appeals ruled on Thursday, establishing for the first time that touching a victim with an inanimate object is also a criminal offense.

In January 2016, police received a report from Sharif Mubarak Abdulla’s wife, L.C., that her husband had beaten and raped her. Prosecutors charged Abdulla with sexual assault and assault, to which he pleaded not guilty. He testified that the couple had argued and things turned physical. His wife, by contrast, said that Abdulla forced her to take off her clothes, beat her with a belt, and made her choose “oral sex or regular sex.”

L.C. did not want either, but told him “regular sex.” Later that night, Abdulla woke up and began to have sex with his wife again. She similarly did not want to participate, but went along with it and raised no objection.

A jury acquitted Abdulla of the sexual assault charge, and instead convicted him for unlawful sexual contact and assault. He received a prison term of six years to life for the unlawful contact conviction, which is a lesser offense than sexual assault.

Per Colorado law, a sexual assault occurs when someone knowingly penetrates a victim and causes submission against the victim’s will. Unlawful sexual contact entails subjecting another person to nonconsensual “touching of the victim’s intimate parts,” which is a felony if there is “actual application of physical force or physical violence.” 

Abdulla argued that striking his wife’s buttocks with a belt was not sexual contact. 

Judge Jaclyn Casey Brown, writing for the Court of Appeals, observed that the General Assembly had not defined “touching.” A previous appellate panel in a separate case determined that a perpetrator who touched his victim through a sheet committed the offense, even though he maintained that such contact did not meet the definition. Abdulla likewise attempted to argue that contact required the perpetrator to “perceive or experience the victim’s intimate parts through the tactile senses.”

Brown explained that the three-member panel agreed with a broader definition of “touching.”

“[W]e conclude that a definition of ‘touching’ that includes use of an implement or object is consistent with the General Assembly’s intent as reflected in the plain and ordinary meaning of the statutory language,” she wrote.

The panel reasoned that the jury could infer from the proximity of events that Abdulla’s whipping of L.C. with a belt was to further his own sexual gratification, but also that Abdulla’s other actions, such as kissing her without consent, qualified as unlawful sexual contact.

“Abdulla essentially argues that L.C.’s consent was an all-or-nothing proposition: L.C. either consented to all the acts or did not consent to any of them,” noted Brown. The panel found it reasonable that even though L.C. did not object to each individual act, a jury could have found the whipping to be nonconsensual.

Abdulla’s appeal also argued that the Denver District Court improperly admitted hearsay statements that his wife made to a detective, L.C.’s sister and a nurse who collected forensic evidence. In the case of the detective, he testified that L.C. described the episode to him and added that she “didn’t tell [Abdulla] to stop for fear of further assault.”

At least 12 hours had passed between the incident and the statement, and the appellate panel recognized that the allowance for “excited utterances” as hearsay evidence was tenuous.

“Abdulla is correct that the passage of time and L.C.’s intervening conduct both cut against the likelihood that the statement to the detective was an excited utterance,” Brown wrote, clarifying that if the trial court did make a mistake by admitting the testimony, it likely did not affect the verdict.

While the court had similar reservations about the other hearsay statements, the jury, by acquitting Abdulla of the sexual assault charge, “did not believe L.C. that the sex was nonconsensual or that she communicated her lack of consent to Abdulla,” the court concluded.

“We are glad that the Court agreed with our position,” said Denver District Attorney Beth McCann in a statement after the ruling. Her office originally prosecuted the case. “This is a good result for victims.”

Zach Elsner, an attorney who represents sexual assault victims for The Sawaya Law Firm, said the court’s conclusion “seems a little like a no-brainer, that people use different devices and things in intimate situations all the time. That doesn’t change the nature of the contact – whether it’s consensual or not.”

The case is People v. Abdulla.

This story has been updated with additional comments.