PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 012220 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 7, 2002 

WILLIAM PATRICK BOWER 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The Court of Appeals reversed William Patrick Bower's 

conviction under Code § 18.2-67.2 of animate object sexual 

penetration of his thirteen-year-old daughter, holding that 

there was insufficient evidence that Bower perpetrated the crime 

through intimidation. We will reverse the judgment of the Court 

of Appeals and reinstate his conviction because we conclude that 

the testimonial evidence along with the familial relationship 

between the defendant and victim, their relative ages and sizes, 

and the improper touching that preceded the penetration 

constitute sufficient proof that the conduct of the defendant 

intimidated the victim in such a way that her will was overcome. 

I. FACTS 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 
 In April 1995 around 8:00 a.m., Bower entered the bedroom 

of his thirteen-year old daughter, Buffy Brooks Bower. She was 

lying on her stomach, facing away from the door, and appeared to 

be asleep. Without saying anything, he lay down next to her. 

He put his hand underneath her pajamas and fondled her breasts 

for a period of five minutes. He then placed his hand inside 

her panties; first resting his hand on her bare bottom and then 

putting his finger into her vagina for a twenty-minute period. 

During this episode, Buffy kept facing away and pretending to be 

asleep until, after a total of about thirty minutes, Bower 

finally got up and left the room. Buffy went back to sleep.

 Buffy testified that after the incident she was "too scared 

to even [tell her] own mother" what had occurred. She also 

testified that she had had a good relationship with her father 

prior to the assault but from that time forward refused to be 

alone with him. 

 The Bowers divorced in 1997 after Buffy's mother learned 

about the assault. Bower remarried and fathered a second 

daughter. Ultimately, it was concern for her half-sister that 

induced Buffy to report the incident to the police in 1999. 

 At trial, Bower waived his right to a jury and was 

convicted by the trial court of animate object sexual 

penetration under Code § 18.2-67.2 and taking indecent liberties 

with a child by a person in custodial or supervisory 

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relationship under Code § 18.2-370.1. The trial court sentenced 

Bower to ten-years' imprisonment for the animate object sexual 

penetration conviction, with five years suspended, and to a 

five-year sentence for the indecent liberties conviction, 

suspended in its entirety.

 The Court of Appeals granted Bower's appeal of his animate 

object sexual penetration conviction and reversed that 

conviction. The court, referring to this Court's discussion of 

"intimidation" in Sutton v. Commonwealth, 228 Va. 654, 324 

S.E.2d 665 (1985), concluded that "intimidation in the context 

of the criminal sexual assault statutes, including Code § 18.2-

67.2, means putting the victim in fear of bodily harm." Bower 

v. Commonwealth, 36 Va. App. 382, 389, 551 S.E.2d 1, 4 (2001). 

The court held that, in this case, nothing in Bower's conduct 

"would place his daughter in fear of bodily harm" and that the 

evidence would not even support a finding under a "lower 

standard" that the victim's will was overborne by psychological 

domination and control. Id. at 389-90, 551 S.E.2d at 4. 

Rejecting the proposition that the parent-child relationship and 

differential in age and size could constitute "cognizable 

intimidation of the daughter causing her to submit to Bower," 

the court concluded that Bower "probably accomplished" the 

offending act by surprise. Id. at 390, 551 S.E.2d at 5. We 

awarded the Commonwealth an appeal. 

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 In Sutton, we considered the meaning of "intimidation" in 

the context of the rape statute, Code § 18.2-61. Since the term 

"intimidation" is consistently used throughout the various 

statutes dealing with crimes of sexual assault, the Sutton

discussion is relevant to our decision in this case. We 

described intimidation as 

putting a victim in fear of bodily harm by exercising 

such domination and control of her as to overcome her 

mind and overbear her will. Intimidation may be caused 

by the imposition of psychological pressure on one who, 

under the circumstances, is vulnerable and susceptible 

to such pressure. 

228 Va. at 663, 324 S.E.2d at 670. 

 The Court of Appeals' decision that the Commonwealth failed 

to meet its burden of proving intimidation was based on two 

factors: (1) the absence of evidence other than the parentchild relationship to show emotional domination; and (2) the 

absence of any conduct by the defendant that would put the 

victim in fear of bodily harm such that the intimidation element 

of the crime was met. 

 The Court of Appeals, while acknowledging that the parentchild relationship can be a "highly relevant" factor when 

considering intimidation, discounted such evidence as proof of 

intimidation in this case because there was no other evidence 

supporting the conclusion that the defendant exercised 

"emotional domination" over his daughter. The lack of such 

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emotional domination by Bower was reflected, according to the 

Court of Appeals, in the daughter's testimony that she had a 

"good relationship" with her father prior to the assault. 

 In discussing the psychological pressure that can cause 

submission through fear in Sutton, we referred to an earlier 

case, Bailey v. Commonwealth, 82 Va. 107 (1886), "where the 

intercourse was induced through fear of a person whom the victim 

was accustomed to obey, such as a person standing in loco

parentis." 228 Va. at 663, 324 S.E.2d at 670. In that case, 

the defendant's conviction for the rape of his fourteen-year old 

stepdaughter was affirmed. Bailey, 82 Va. at 114. As in 

Bailey, the "good relationship" between Bower and his daughter 

in this case could lead the child to submit to the overtures of 

the parent because a "good relationship" between parent and 

child can include the child's general obedience to the parent's 

direction. Therefore, the parent-child relationship was 

relevant to a determination of intimidation and supported the 

finding that Bower exercised emotional dominance over his 

daughter in this case. 

 The Court of Appeals' holding that the Commonwealth failed 

to produce sufficient evidence supporting a finding of fear of 

bodily harm apparently was based on two rationales; however, 

neither rationale can support the Court of Appeals' result in 

this case. The first rationale the court apparently applied was 

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a requirement that the requisite fear be a fear of bodily harm 

separate and apart from the harm experienced in the sexual 

assault. However, nothing in Sutton or any other case we have 

decided requires this conclusion. 

 Sexual assaults are assaults against the body of the 

victim; they are violent acts which common knowledge tells us 

inflict bodily hurt on the victim. It defies human experience 

to conclude that fear of the possibility of bodily injury caused 

by sexual assault is insufficient "fear of bodily harm" for 

purposes of establishing sexual assault by intimidation. 

 Accordingly, the Court of Appeals erred to the extent that 

it required proof that the victim feared some type of bodily 

harm other than the harm inherent in the sexual assault. 

 A second rationale which the Court of Appeals appears to 

have utilized in finding that there was no evidence of fear of 

bodily harm was the use of an objective standard for measuring 

the reasonableness of a victim's fear. Citing its prior cases, 

the Court of Appeals stated that fear of bodily harm must come 

from the actions of the defendant, not from the victim's 

"temperamental timidity." Because nothing in Bower's conduct 

"would place his daughter in fear of bodily harm," and the 

victim made no reaction indicating that she was emotionally 

dominated or fearful, the Court of Appeals concluded that the 

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crime was not perpetrated through intimidation. Bower, 36 Va. 

App. at 389-90, 551 S.E.2d at 4-5. 

 In Sutton, we specifically did not decide whether an 

objective or subjective standard should be applied in these 

cases. We have not done so in subsequent cases, and we need not 

resolve that issue in this case. Matters such as the victim's 

age, the relative size of the defendant and victim, the familial 

relationship between the defendant and victim, and the 

vulnerable position of the victim are not matters of the 

"temperamental timidity" of the victim and are relevant matters 

to be considered with other testimony when determining whether 

the victim was put in fear of bodily harm. 

 Applying the above principles, we conclude that the record 

is sufficient to support a finding that Bower committed animate 

sexual penetration by intimidation. The victim testified that 

she was "frightened" and "scared" and that the assault hurt. 

She also testified that her father had never approached her in 

this manner before, that she pretended to be asleep during the 

assault, and that, after the assault, she avoided being alone 

with her father. This testimony, along with evidence of the 

parent-child relationship, the age of the victim and the 

relative sizes of the parties, was sufficient to sustain a 

finding that the act of sexual abuse occurred through 

intimidation. 

7
 Finally, the Court of Appeals concluded that the act of 

sexual penetration was accomplished by surprise. This 

conclusion is not supported by the record. This assault did not 

occur in a matter of seconds or even a few minutes. The crime 

charged was preceded by at least five minutes of fondling and 

continued for almost thirty minutes. The continuation of the 

defendant's conduct over that period of time is inconsistent 

with surprise. 

 For the above reasons, we conclude that the Court of 

Appeals erred in setting aside the conviction. Accordingly, we 

will reverse the judgment of the Court of Appeals and reinstate 

the conviction. 

Reversed and final judgment.

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