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Pettit v. Erie Insurance Exchange9/5/1997
s wrong or of the full extent of the harm). Under the definition provided in the Restatement (Second) of Torts,
an actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.
Restatement (Second) of Torts § 13 (1965). If the act is done with the intention of making the offensive contact, it is immaterial that the actor is not motivated by any personal hostility or intent to injure. § 13, comment c; § 16, comment b. Further, what constitutes offensive contact is defined by a community standard. See § 19 ("A bodily contact is offensive if it offends a reasonable sense of personal dignity."). See also § 19, comment a (in order to be considered offensive, the contact "must be one which would offend the ordinary person. . . . It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.").
Sexual contact by an adult upon a minor child clearly falls within our society's definition of offensive and harmful contact. Indeed, under Maryland law, an adult is guilty of a second degree sexual offense if he or she engages in a sexual act with a person who is under fourteen years of age, Md. Code Ann., Art. 27, § 464A (1996 Repl. Vol.), and guilty of a third degree sexual offense if he or she engages in sexual contact with a person who is under fourteen years of age. Art. 27, § 464B. In addition, although consent is a defense to battery, consent to sexual contact with an adult cannot be given by a child as a matter of law. To be effective, consent must be given by one who has the capacity to give it. Restatement (Second) of Torts § 892A, comment b. Further, while a child's consent may be effective in certain instances, see McQuiggan v. Boy Scouts of America, 73 Md. App. 705, 714, 536 A.2d 137 (1988), it is only effective if the child is "capable of appreciating the nature, extent and probable consequences of the conduct consented to." Restatement (Second) of Torts § 892A, comment b. We have no trouble in holding as a matter of law that seven and nine year old children are incapable of appreciating the nature, extent and probable consequences of sexual conduct with an adult, and thus, cannot provide valid consent. Moreover, comment b goes on to indicate that, even when a person is in fact competent to give consent, a statute may prevent the consent from being effective if the statute is found to be intended to give special protection against certain kinds of harm. One example given by comment b is statutory rape.
As the Court of Appeals noted in Bailer v. Erie Ins. Exchange, 344 Md. 515, 534, 687 A.2d 1375 (1997), for purposes of the intentional injury exclusion, there are some tortious acts that are indistinguishable from the tort victim's harm. In Bailer, the Court held that intrusion upon seclusion was one such tort. Id. "The insured's conduct, the invasion, and the claimant's harm, the invasion, are one and the same." Id. Similarly, Kowalski's conduct, the sexual molestation, and appellants' harm, the sexual molestation, are one and the same. Accordingly, we hold that as long as Kowalski formed the intent to molest the boys sexually, a matter that is undisputed, he formed the intent to injure them as a matter of law. He need not have expected or intended that injury would manifest in any particular manner. Our holding in this case is consistent with prior Maryland cases and with cases from the vast majority of other jurisdictions that have consider
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