Is a Person’s Neck an “Intimate” Body Part Under PA’s Indecent Assault Criminal Statute?

Commonwealth v. Gamby, 2021 WL 99749 (Pa. Super. 2021) (unreported), allocatur granted Aug. 17, 2021, appeal docket 62 MAP 2021

On March 28, 2019, at around 4:30pm, Carl Gamby arrived at the Econo Lodge on Eisenhower Boulevard in Swatara Township for his second day of work. He met his coworker, K.A., for the first time, and over the next few hours she provided Gamby with training related to his new job. At around 7:30pm, he excused himself to take a break and entered a restroom, intending to inject himself with heroin. He injected himself with a substance that he now believes was fentanyl and bath salts. Gamby exited the bathroom, approached K.A. from behind, put his arms around her neck, and kissed her neck. K.A. told Gamby to sit down and started texting her boss, during which time Gamby removed his shirt and told K.A. that he wanted to kiss her. According to K.A., she yelled “You need to get away from me. Stop. Don’t touch me” as she gathered her belongings to leave. K.A. fled the premises as she called 911. According to K.A., as she left the building, Gamby said “I want to show you something” as he removed his pants. K.A. got inside her car and locked the doors. Gamby, naked, followed her, pressed his body against her vehicle, tried to open the passenger door, and shook the car. As K.A. drove away, Gamby held onto the vehicle until he no longer could. He then ran after the car as K.A. drove it out of the parking lot.

Gamby was charged in the Dauphin County Court of Common Pleas with, inter alia, indecent assault without consent in violation of 18 Pa.C.S. § 3126(a)(1). The statute provides in pertinent part that a person is “guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: (1) the person does so without the complainant’s consent…”. Title 18 defines “indecent contact” as “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

A Dauphin County jury found Gamby guilty of indecent assault, after which he filed a post-sentence motion challenging the sufficiency of the evidence supporting the conviction. The court denied the post-sentence motion and Gamby timely appealed to the Superior Court. On appeal Gamby argued that the Commonwealth failed to present sufficient evidence to support his conviction of indecent assault. Specifically, he asserted “that his conduct of kissing the victim’s neck did not satisfy the element of touching the ‘sexual or other intimate parts’ of the victim.” He argued his case is distinguishable from pertinent case law—which interprets “sexual or other intimate parts” as “encompassing body parts other than the genitals and breasts”—because his case did not involve conduct that was as “intrusive and prolonged” as the conduct described in the controlling cases. Slip op. at 4-5.

The Superior Court disagreed with Gamby. Citing Title 18, the Court explained that for the elements of indecent assault to be fulfilled, an alleged victim does not need to resist a defendant, nor does an alleged victim need to endure a defendant’s touching for any particular period of time. 18 Pa.C.S. § 3107 and 18 Pa.C.S. § 3126(a)(1). The Court also cited five Superior Court cases showing “that areas of the body other than the genitalia, buttocks, or breasts can be intimate parts of the body as contemplated by the indecent assault statute” so long as the defendant touches the alleged victim for the defendant’s sexual gratification. Slip op. at 6-7. The Court noted that one of those five cited cases also stood for the proposition that “the crime of indecent assault does not depend on the degree of success achieved by the attacker.” Slip op. at 7.

Gamby appealed. The Pennsylvania Supreme Court granted allocatur to consider one question:

Did the Superior Court commit an error of law when it held that the kissing and touching of the victim’s neck, without the victim’s consent, constituted indecent contact with an “intimate” part of the victim’s body sufficient to sustain Petitioner’s conviction for indecent assault under 18 Pa.C.S. § 3126?


For more information, contact Kevin McKeon or Dennis Whitaker.