T.D. v. J.P. ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0607
Filed April 1, 2020
T.D.,
Plaintiff-Appellee,
vs.
J.P.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, James A. McGlynn,
Judge.
The defendant challenges the district court’s grant of a sexual abuse
protective order. AFFIRMED.
John R. Flynn of Jordan & Mahoney Law Firm, P.C., Boone, for appellant.
Daniel J. Kolacia of Boone County Attorneys Office, Boone, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
2
TABOR, Presiding Judge.
Twenty-one-year-old T.D.—representing herself—sought a protective order
under Iowa Code section 236A.3 (2019). She alleged her coworker, J.P., sexually
assaulted her twice at his house. After hearing testimony from both parties, the
district court granted T.D.’s petition. Because we value the district court’s in-
person assessment of the disputed testimony, we affirm the ruling.
In early March 2019, T.D. planned to stay overnight with J.P. because his
residence was close to her work assignment. At age forty-seven, J.P. was
considerably older than T.D. But the two colleagues had been friends for about a
year. And both agreed their relationship had not been romantic or sexual.
On March 9, T.D. and J.P. went out for drinks in Ames. Between Buffalo
Wild Wings, Time Out, and the Corner Pocket, T.D consumed seven to nine rum-
and-colas. J.P. paid for all the drinks. After closing down the bars, the coworkers
arrived at J.P.’s house.
Once inside, according to T.D., J.P. started kissing her and putting his hand
down her pants. She testified he touched her vagina with his finger. She
remembered saying “no” and then she “kind of drifted off.” When she woke up,
she was in J.P.’s bedroom. Her sweatpants and underwear were on the floor. She
grabbed her clothes and left the house. Because her vaginal area was sore, she
believed she had been sexually assaulted. She went to work that morning. Then
the next day she went to the hospital to have a rape kit completed.
3
On March 21, T.D. filed a self-represented petition seeking relief from
sexual abuse under Iowa Code chapter 236A.1 She alleged J.P. sexually abused
her while she was “incapacitated.” She wrote: “I fell asleep on his couch. I woke
up in his bed. I don’t recall how I was moved or got to his bed.” The district court
issued a temporary order that same day.
The parties both testified at an April 4 hearing. To some extent, J.P.’s
version of events tracked T.D.’s recollection. He confirmed they had been out
drinking together and returned to his place. J.P. recalled T.D. tripping on his front
steps. So he helped her inside. He denied reaching down her pants but agreed
they “kind of kissed.” He testified, “I didn’t take it as a sexual thing at all.” He
added, “Plus, it wouldn’t have been a very deep kiss because I had [tobacco] chew
in my mouth.” J.P. also admitted they had sexual contact in his bedroom, but
asserted T.D. was the aggressor. He claimed T.D. woke him up “in a sexual
manner” by rolling on top of him. But he told her it was “not working” because he
had erectile dysfunction. He testified he was “not a hundred percent sure” if his
penis went inside her vagina.
1The legislature enacted this chapter fairly recently. See Iowa Acts 2017 ch. 121.
Lawmakers intended the new provisions to allow
a victim of sexual abuse to seek relief from sexual abuse by filing a
petition in district court for a sexual abuse civil protective order
(emergency, temporary, or permanent) prior to the arrest of the
defendant in such a situation, affording the victim . . . , whose welfare
may be affected by the sexual abuse situation, the same civil
protections as victims of domestic abuse under Iowa Code chapter
236.
See Iowa Legis. Summ. (2017 Civil Law, Procedure, and Court Administration).
4
At the close of the hearing, the court found T.D. presented enough evidence
to warrant issuance of a sexual abuse protective order. The court reasoned:
First of all, it seems that both parties agree that a sex act occurred.
There’s difference of opinion as to exactly what that was and who
initiated it and so forth, but plaintiff testified that there was skin to skin
contact, hand—his hand to her vagina that she remembers. That
she woke up sore. Presumably she assumes that something else
happened and the defendant testified to a lot more, but his testimony
also confirms that a sex act occurred.
In the court’s mind, “the only real question” was whether that sex act was
consensual. After considering the evidence of T.D.’s intoxication, the court
decided she was too impaired to consent. J.P. appealed that same day.
Because the district court tried this civil case in equity, our review is de novo.
See Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). The person seeking the
protective order, here T.D., must prove “a finding of sexual abuse by a
preponderance of the evidence.” See Iowa Code § 236A.3. A preponderance
means the greater weight of the evidence. Wilker, 630 N.W.2d at 596–97. We
give “respectful consideration” to the district court’s factual findings and credibility
determinations, but they are not binding on us. Id. at 594.
At its root, J.P.’s appeal contests the district court’s finding of sexual abuse.
He argues T.D. did not meet her burden because her testimony contained
inconsistencies and she was not so intoxicated that she could not consent. In his
view, the court faced a “she said v. he said” situation and wrongly concluded T.D.
was more credible.
To address J.P.’s arguments, we start with T.D.’s burden. She had to show
by a preponderance of the evidence J.P. committed sexual abuse. Iowa Code
§ 236A.3. For this action, “sexual abuse” means “any commission of a crime
5
defined in chapter 709 or section 726.2 or 728.12.” Id. § 236A.2. In chapter 709,
sexual abuse is defined as “any sex act” performed by force or against the will of
the other person or while the other person is suffering from “incapacity which
precludes giving consent.” Iowa Code § 709.1(1), (2). The definition of sex act
includes sexual contact between the finger of one person and the genitalia of
another, as well as sexual contact between the genitalia of one person and the
genitalia of another. Id. § 702.17(2), (3). Mental incapacitation means “a person
temporarily incapable of apprising or controlling the person’s own conduct due to
the influence of a narcotic, anesthetic, or intoxicating substance.” Id. § 709.1A.
More broadly, incapacitation includes the state of being “physically helpless” which
encompasses a person who is asleep.
J.P. concedes a sex act occurred. But he insists T.D. consented, and even
initiated, their sexual encounter.
That insistence did not win over the district court and does not sway us on
appeal. “Where there is a conflict in the evidence the fact finder must decide which
evidence is credible and which is not.” In re D.C.L., 464 N.W.2d 881, 883 (Iowa
1991). Here, the district court decided T.D. could not give consent because of her
level of intoxication. The court noted even under J.P.’s version of events, she
drank to excess and stumbled on the way into his house.
On appeal, J.P. quibbles about T.D.’s state of intoxication, claiming she
“was able to do things that a very drunk person would not likely be able to do.” He
also accuses her of inconsistency in alleging in her petition that she was
“incapacitated” but only testifying that she “kind of dozed off.”
6
His objections fall flat for two reasons. First, as long as the pro se petition
provided J.P. with adequate notice of T.D.’s accusations, any imprecision in its
drafting does not detract from the force of her evidence. See Smith v. Smith, 513
N.W.2d 728, 731 (Iowa 1994). Second, T.D. did not have to be “passed out” drunk
to be considered “physically helpless” and unable to consent to a sex act. See
State v. Tapia, 751 N.W.2d 405, 407 (Iowa Ct. App. 2008) (finding rational trier of
fact could have found victim incapable of consent due to being asleep and
physically helpless). Because T.D. showed by a preponderance of the evidence
J.P. committed a sex act without her consent, we affirm the district court’s issuance
of the protective order.
AFFIRMED.