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Pettit v. Erie Insurance Exchange9/5/1997
982) (quoting Prosser, Law of Torts § 31 (4th Ed. 1971)). We held in Harpy, and reaffirm in this case, that sexual conduct between an adult and a child is so substantially certain to result in harm to the child that injury is intentional as a matter of law.
Appellants distinguish Harpy primarily on the basis that in this case, Kowalski was diagnosed a pedophile, and such a diagnosis vitiated his intent. Appellants do not offer a definition of pedophile for our review. We will, however, take judicial notice of the definition of pedophile provided in Diagnostic Statistical Manual IV (DSM-IV), a publication of the American Psychiatric Association. See Faya, 329 Md. at 444 (quoting Murphy, Maryland Evidence Handbook, § 1000(A)(2))(to place allegations of complaint in context, courts may take judicial notice of additional facts that are "capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute"). The DSM-IV defines pedophile as follows:
302.2 Pedophilia
A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C. The person is at least 16 years and at least 5 years older than the child or children in Criterion A.
Under this definition, one may be classified a pedophile solely as a result of one's behavior. The definition is not dependent upon any particular set of beliefs or upon any distortion in cognition or perception. Under this definition, the insured in Harpy would be considered a pedophile, as it was alleged that he sexually abused his daughter in various ways, during the years 1979 through 1984, when the child was between the ages of nine and thirteen. Thus, the mere diagnosis of pedophile adds nothing to this case.
In addition to the diagnosis of pedophile, we have in this case the opinions of Drs. Berlin and Blumberg that pedophiles often believe their sexual relations with children to be normal and healthy and not harmful, and Kowalski's statements that he believes sexual conduct between adult men and male children is normal, healthy, and not in any way injurious. There is no evidence that Kowalski's sexual contact with the boys was the result of an involuntary reflex. Nor is there any indication that Kowaiski, due to his "mental disorder," mistakenly believed he was engaging in sexual activity with consenting adults at the time he was engaging in such conduct with the boys. In short, the record disputably establishes that Kowalski voluntarily engaged in sexual activities with the boys, and that he possesses a subjective belief that such activities are neither harmful nor injurious. Further, the record establishes that Kowaiski knew that others, and particularly the boys' parents, would not agree with his subjective beliefs.
Appellants seek to distinguish Harpy on a number of other bases that are unpersuasive. Contrary to appellants' assertion, Harpy is not distinguishable on the basis that it involved "violent unconsensual (sic) rape." In Harpy we merely noted that the sexual abuse included sexual intercourse, and mentioned nothing regarding violence or forcible rape. The minor appellants in this case were no better able to consent to various sexual acts with Kowalski than was the child in Harpy. As we stated earlier, as a matter of law, these children cannot consent to sexual acts with an adult. As a matter of law, any sexual contact between an adu
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