COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Kelsey and McClanahan 

Argued at Alexandria, Virginia 

JAMES ARCHER MARTIN 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1966-04-4 JUDGE D. ARTHUR KELSEY 

 SEPTEMBER 6, 2005 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

Joseph E. Spruill, Jr., Judge Designate 

Robert J. Cunningham, Jr. (Whitestone, Brent, Young & 

Merril, P.C., on brief), for appellant. 

Josephine F. Whalen, Assistant Attorney General (Judith W. 

Jagdmann, Attorney General, on brief), for appellee. 

The trial court found James Archer Martin guilty of aggravated sexual battery of an 

eight-year-old boy in violation of Code § 18.2-67.3(A)(1). Martin appeals, claiming a right to an 

acquittal as a matter of law because he did not force the boy to engage in the sexual act and, in 

fact, the boy did so willingly. We disagree. Given the child’s age, he could not legally consent 

and thus constructive force existed as a matter of law. 

I. 

Martin stipulated to the evidence in the trial court. Martin, a fourteen-year-old boy, 

admitted asking the victim, an eight-year-old boy, to masturbate him. After Martin demonstrated 

what he wanted done, the victim manipulated Martin’s penis until he ejaculated. No evidence 

 

Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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suggested Martin used violence or any form of physical compulsion to overcome the victim’s 

will. The offense took place in February 2003. 

On de novo appeal from the juvenile and domestic relations district court, the circuit 

court convicted Martin of aggravated sexual battery under former Code § 18.2-67.3(A)(1). On 

appeal to us, Martin admits he caused the eight-year-old boy to perform the requested sexual act. 

That does not make him guilty of sexual abuse, Martin claims, because he did not force the boy 

to do it. The sexual encounter, he says, was entirely consensual. 

II. 

Former Code § 18.2-67.3(A)(1) says nothing about force. In 2003, that statute provided 

merely that an “accused shall be guilty of aggravated sexual battery if he or she sexually abuses 

the complaining witness” and the “complaining witness is less than thirteen years of age . . . .”1

The very next subsection, A(2), specifically required force or its functional equivalent (threats, 

intimidation, mental incapacity, or physical helplessness) for sexual abuse of a victim thirteen to 

fifteen years old. Despite the conspicuous absence of force from A(1) and its equally 

conspicuous presence in A(2), Martin nonetheless argues that A(1) also required a showing of 

force. He reaches this conclusion by consulting a definitional statute, former Code 

§ 18.2-67.10(6)(b), which defined “sexual abuse” generally to include cases where the accused 

“forces the complaining witness” to touch the accused’s genitals. 

We do not believe the General Assembly intended a general definitional statute to negate 

a purposefully crafted distinction set out in a specific statute outlining the elements of the 

offense. If we were to accept that conclusion, we could only do so by violating longstanding 

 1

 The General Assembly has amended several of Virginia’s sexual abuse statutes, 

including Code §§ 18.2-67.3 and 18.2-67.10, during the last two legislative sessions. We 

necessarily decide the case, however, based upon the statutory language in effect in 2003. All of 

our statutory quotes, therefore, reflect the texts applicable at the time of the offense. 
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principles of statutory construction. As has been often said, seemingly incongruent statutes 

“capable of coexistence” should be read harmoniously so that each retains meaning and neither is 

rendered illusory. Seaton v. Commonwealth, 42 Va. App. 739, 758-59, 595 S.E.2d 9, 18-19 

(2004) (citation omitted). “And to the extent such harmony cannot be achieved, the more 

specific statute takes precedence over the more general one.” Id.2

 Martin’s interpretation 

violates both maxims by rendering the specific legislative distinction between A(1) and A(2) 

meaningless in this case through the use of a single word in a general definitional provision. 

Instead, we believe the general definitional statute, former Code § 18.2-67.10(6)(b), and 

the specific statute setting forth the elements of Martin’s offense, former Code 

§ 18.2-67.3(A)(1), can be read harmoniously ⎯ so that neither statute negates the other, and both 

retain a substantive meaning consistent with established caselaw. 

In the context of sexual crimes, when analyzing whether the “element of force” has been 

shown, “the inquiry is whether the act or acts were effected with or without the victim’s 

consent.” Gonzales v. Commonwealth, 45 Va. App. 375, 383, 611 S.E.2d 616, 620 (2005) (en

banc) (quoting Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979)). Absent 

legally recognized consent, “there is evidently, in the wrongful act itself, all the force which the 

law demands as an element of the crime.” Bailey v. Commonwealth, 82 Va. 107, 111 (1886). If 

 2

 No Virginia case has ever suggested this canon does not apply to criminal statutes (cf.

post, at 12-13), and we can think of no principled basis for it not to, particularly given its 

recognized applicability to statutes governing the death penalty. See, e.g., Powell v. 

Commonwealth, 261 Va. 512, 544, 552 S.E.2d 344, 362 (2001) (holding that the “established 

rule of statutory construction that when one statute speaks to a subject generally and another 

deals with an element of that subject specifically, the statutes will be harmonized, if possible, and 

if they conflict, the more specific statute prevails” (citation omitted)); Thomas v. 

Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618 (1992). See generally Commonwealth 

ex rel. Va. Dep’t of Corrections v. Brown, 259 Va. 697, 706, 529 S.E.2d 96, 101 (2000); Griffin 

v. Commonwealth, 33 Va. App. 413, 429-30, 533 S.E.2d 653, 661 (2000). 
- 4 -

no consent exists, therefore, “the use of force is shown by the act of non-consensual [sexual 

contact] itself.” Gonzales, 45 Va. App. at 383, 611 S.E.2d at 620. 

Virginia law has historically refused to recognize the consent of a victim under the age of 

fifteen ⎯ treating the child, as a matter of law, to be too emotionally and developmentally 

immature to engage in consensual sexual activities with another. Under that age, a child “cannot 

legally consent to the act, and constructive force is present, even though she does in fact 

consent.” McBride v. Commonwealth, 44 Va. App. 526, 532, 605 S.E.2d 773, 775 (2004) 

(emphasis added) (quoting Buzzard v. Commonwealth, 134 Va. 641, 651, 114 S.E. 664, 666-67 

(1922)). This constructive force concept has been a “fundamental tenet of Virginia law” 

governing sexual offenses. Id. As the Virginia Supreme Court has explained: 

It is true that force, actual or constructive, is essential to the crime 

of rape, and that there is no force where the female is legally 

capable of giving her consent, and does so. But in Virginia the age 

of consent is fifteen years. Under that age she cannot legally 

consent to the act, and constructive force is present, even though 

she does in fact consent. 

Stump v. Commonwealth, 137 Va. 804, 807, 119 S.E. 72, 73 (1923) (emphasis added); see also

Parsons v. Parker, 160 Va. 810, 814, 170 S.E. 1, 2 (1933). See generally Davis v. 

Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167, 171 (1947) (“Under the law two types of 

force, active and constructive, are recognized.”). 

 The legislature enacted the general definitional statute, former Code § 18.2-67.10(6)(b), 

against the backdrop of an unbroken line of judicial precedents recognizing the doctrine of 

constructive force in prosecutions of sexual offenses against minors. “We assume legislative 

familiarity with Virginia case law when the legislature enacts a statute which might impact upon 

that law.” Dodson v. Potomac Mack Sales & Serv., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); 

see also Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001). Nothing in 

former Code § 18.2-67.10(6)(b) ⎯ which defined “sexual abuse” generally ⎯ suggested the 
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legislature intended to discard the constructive force doctrine or to limit the concept of force only 

to displays of actual violence, threats, or other forms of physical compulsion. The word “force” 

in this general definition statute, therefore, necessarily retained the attributes of both actual and 

constructive force. 

Only with that background can former Code § 18.2-67.3(A)(1) be understood. To the 

extent force is relevant at all to a subsection A(1) conviction ⎯ an assumption we make 

arguendo ⎯ it migrated into A(1) only through the general definition of “sexual abuse” found in 

former Code § 18.2-67.10(6)(b). And to the degree the general definition was imported into 

former Code § 18.2-67.3(A)(1) ⎯ which, unlike A(2), makes no mention of force ⎯ the 

imported definition carried with it principles of constructive force. 

Martin argues our understanding fails to defer to the carefully chosen words of the 

statute. We think just the opposite is true. Martin’s interpretation wholly obliterates the 

distinction between subsections A(1) and A(2), rendering it without any conceivable meaning in 

this case. If force means only actual force, then the absence of force as an element of the A(1) 

crime and its presence as an element of the A(2) crime would make no sense. On the other hand, 

it was entirely sensible for the legislature to employ the concept of constructive force in A(1) for 

victims younger than thirteen, while requiring a showing of actual force or its functional 

equivalent for a violation of A(2) for victims between thirteen and fifteen. Cf. Johnson v. 

Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988). No other interpretation 

preserves the legislative distinction drawn between former subsections A(1) and A(2). 

Martin also contends that our reasoning defies the canon requiring that ambiguous penal 

statutes be strictly construed. We find this protest circular, because the alleged ambiguity arises 

only if we were to accept his misinterpretation of the statute. Quoting Justice Story, the Virginia 

Supreme Court has explained: 
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Speaking of penal statutes, Mr. Justice Story, in U.S. v. Winn, 3 

Sumner 209, says: “Where a word is used in a statute, which has 

various known significations, I know of no rule that requires the 

court to adopt one in preference to another, simply because it is 

more restrained, if the objects of the statute equally apply to the 

largest and broadest sense of the [word]. In short, it appears to me 

that the proper course in all these cases is to search out and follow 

the true intention of the Legislature, and to adopt that sense of the 

words which harmonizes best with the context, and promotes in the 

fullest manner the apparent policy and objects of the Legislature.” 

Northrop & Wickham v. Richmond, 105 Va. 335, 339-40, 53 S.E. 962, 963 (1906).3

 Put another 

way, the canon of strict construction of penal statutes does not “require magnified emphasis upon 

a single ambiguous word in order to give it a meaning contradictory to the fair import of the 

whole remaining language,” United States v. Brown, 333 U.S. 18, 25-26 (1948) ⎯ which is 

exactly what Martin’s discordant interpretation does. 

III. 

We reject Martin’s argument that the Commonwealth did not prove its case against him 

for aggravated sexual battery under former Code § 18.2-67.3(A)(1). The eight-year-old victim 

could not have legally consented, and thus, constructive force existed as a matter of law. 

 Affirmed.

 3

 No canon of statutory construction “requires that a penal statute be strained and 

distorted in order to exclude conduct clearly intended to be within its scope ⎯ nor does any rule 

require that the act be given the ‘narrowest meaning.’” United States v. Raynor, 302 U.S. 540, 

552 (1938). So “whatever may be said of the rule of strict construction, it cannot provide a 

substitute for common sense, precedent, and legislative history.” United States v. Standard Oil 

Co., 384 U.S. 224, 225-26 (1966); see also United States v. Brown, 333 U.S. 18, 25-26 (1948) 

(“The canon in favor of strict construction is not an inexorable command to override common 

sense and evident statutory purpose.”). 
- 7 -

Elder, J., dissenting: 

 The version of Code § 18.2-67.3(A)(1) in effect at the time of the acts at issue, as further 

defined by Code § 18.2-67.10(6)(b), required proof that the victim’s touching of the accused 

occurred because of some “force[]” exerted by the accused.4 I believe basic principles of 

statutory construction compel the conclusion that proof of “constructive” force based solely on 

the age of the victim was insufficient to prove the requisite force under the applicable version of 

the statutes. Thus, I would reverse appellant’s conviction and dismiss the complaint, and I 

respectfully dissent. 

The version of Code § 18.2-67.3 in effect on February 28, 2003, when the offense at issue 

in this case took place, provided in relevant part as follows: 

A. An accused shall be guilty of aggravated sexual battery 

if he or she sexually abuses the complaining witness, and 

 1. The complaining witness is less than thirteen years of 

age, or 

 2. The act is accomplished against the will of the 

complaining witness, by force, threat or intimidation or through the 

use of the complaining witness’s mental incapacity or physical 

helplessness, and 

 a. The complaining witness is at least thirteen but less than 

fifteen years of age, or 

 b. The accused causes serious bodily or mental injury to 

the complaining witness, or 

 4

 Effective July 1, 2004, the General Assembly amended Code §§ 18.2-67.3 and 

18.2-67.10. 2004 Va. Acts, chs. 741, 843. As a result of those amendments, a conviction for 

aggravated sexual battery of a complaining witness less than thirteen years old no longer requires 

proof of force. 2004 Va. Acts ch. 741. “If the complaining witness is under the age of 13,” 

aggravated sexual battery may be proved by evidence that “the accused causes or assists the 

complaining witness to touch the accused’s, the witness’s own, or another person’s intimate parts 

or material directly covering such intimate parts.” Id. (emphasis added). 
- 8 -

 c. The accused uses or threatens to use a dangerous 

weapon. 

1993 Va. Acts, ch. 590 (emphasis added). 

 Here, because the victim was less than thirteen years old and the evidence did not involve 

injury to the victim or the use of or threat to use a dangerous weapon, see Code 

§ 18.2-67.3(A)(2), appellant could be convicted only under subsection (A)(1) of Code 

§ 18.2-67.3. A conviction under either part of subsection (A) required proof that appellant’s acts 

toward the eight-year-old victim constituted “sexual abuse,” defined in Code § 18.2-67.10(6) as 

an act committed with the intent to sexually molest, arouse, or 

gratify any person, where: 

 a. The accused intentionally touches the complaining 

witness’s intimate parts or material directly covering such intimate 

parts; 

 b. The accused forces the complaining witness to touch the 

accused’s, the witness’s own, or another person’s intimate parts or 

material directly covering such intimate parts; or 

 c. The accused forces another person to touch the 

complaining witness’s intimate parts or material directly covering 

such intimate parts. 

1994 Va. Acts, ch. 568. Thus, Code § 18.2-67.3(A) specifically incorporated as an element of 

the offenses it proscribed that the behavior constituted sexual abuse, defined without regard to 

the age of the victim. 

 It was not disputed that appellant acted “with the intent to sexually molest, arouse, or 

gratify any person,” the first element of sexual abuse, and the only type of touching established 

by the evidence was the complaining witness’s touching of appellant’s penis. Thus, we must 

examine whether the evidence proved, as required by subsection (b) of Code § 18.2-67.10(6), 

that “[t]he accused force[d] the complaining witness to touch the accused’s . . . intimate parts or 

material directly covering such intimate parts.” Code § 18.2-67.10(6)(b) (emphasis added). 
- 9 -

 The majority holds that constructive force was proved based solely on the youth of the 

victim and that this proof was sufficient to support appellant’s conviction for violating Code 

§ 18.2-67.3(A)(1). I believe basic principles of statutory construction compel a different result. 

“‘[T]he province of construction is wholly within the domain of ambiguity, and that 

which is plain needs no interpretation.’” Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 34, 366 

S.E.2d 271, 273 (1988) (quoting Winston v. City of Richmond, 196 Va. 403, 407-08, 83 S.E.2d 

728, 731 (1954)). “[W]hen the General Assembly has used words that have a plain meaning, 

courts cannot give those words a construction that amounts to holding that the General Assembly 

meant something other than that which it actually expressed.” Lee County v. Town of St. 

Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002). When bound by the plain meaning of 

the language used, we are not permitted “to add or to subtract from the words used in the 

statute.” Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918). “We must . . . 

assume . . . the legislature chose, with care, the words it used when it enacted the relevant 

statute,” Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 

(1990), and it is our duty “to give reasonable effect to every word,” Jones v. Conwell, 227 Va. 

176, 180-81, 314 S.E.2d 61, 64 (1984); Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 

580, 593 (2000) (en banc). 

Further, “[w]hen a penal statute is unclear, the statute must be strictly construed against 

the Commonwealth and in favor of an accused’s liberty, and the accused is entitled to the benefit 

of any reasonable doubt concerning the statute’s construction.” Waldrop v. Commonwealth, 255 

Va. 210, 214, 495 S.E.2d 822, 825 (1998). Before the accused can be punished, however 

offensive his conduct, “‘his case must be plainly and unmistakably within the statute.’” Harward 

v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985) (quoting United States v. Lacher, 

134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080, 1083 (1890)). 
- 10 -

The plain language of subsection (b) of Code § 18.2-67.10(6) requires proof of some 

showing of “force” employed by the accused toward the victim to effect the proscribed touching. 

Where the criminal act alleged is that either the victim touched the accused, see Code 

§ 18.2-67.10(6)(b), or a third party touched the victim, see Code § 18.2-67.10(6)(c), the General 

Assembly required proof that the “accused force[d]” the touching. Code § 18.2-67.10(6)(b), (c) 

(emphasis added). The language of subsection (6)(a), by contrast, does not require proof of force 

where the act establishing the sexual abuse is the “accused[’s] intentional[] touch[ing of] the 

complaining witness’s intimate parts or material directly covering such intimate parts.” Code 

§ 18.2-67.10(6)(a). In enacting subsection (6)(a), (b) and (c), the General Assembly clearly 

demonstrated that it knew how to define certain types of sexual touching without regard to 

whether they involved force or consent. 

Principles of statutory construction prevent us from holding this element of force is 

established by proof of “constructive” force-- that the victim was beneath the common law age 

of consent. Subsection (A)(1) of Code § 18.2-67.3 already contains a requirement that the victim 

who has been “force[d]” to touch the accused must be less than thirteen years of age in order for 

the behavior to be punishable under that subsection. As set out above, under settled principles of 

statutory construction, we must try to give effect to every word in the statute. Because these 

statutes are penal in nature, we may not construe the requirement of force in Code 

§ 18.2-67.10(6)(b), as incorporated into Code § 18.2-67.3(A) by reference, to be proved in every 

instance by the very same evidence used to establish an express element of Code 

§ 18.2-67.3(A)--that the victim be “less than thirteen years of age,” beneath the age of consent. 

 A comparison of the language in the applicable version of Code §§ 18.2-67.3 and 

18.2-67.10(6) to the language in Code § 18.2-63 supports this result. In enacting Code 

§ 18.2-63, the General Assembly criminalized the carnal knowledge of a child and provided 
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expressly that “a child under the age of thirteen years shall not be considered a consenting child” 

“[f]or purposes of this section.” The General Assembly included no such provision in the 

version of Code § 18.2-67.3 or Code § 18.2-67.10 at issue here.5 When the General Assembly 

amended Code § 18.2-67.10(6) after the offense at issue, it removed the requirement of force in 

the case of a victim under the age of thirteen, showing it knew how to make such a distinction 

but had previously failed to do so with regard to aggravated sexual battery of children under 

thirteen. The General Assembly’s 2004 amendment of Code §§ 18.2-67.3 and 18.2-67.10 makes 

plain its intent to effect a substantive change in the statute, see, e.g., Waldrop, 255 Va. at 214, 

495 S.E.2d at 825 (“[T]here is a presumption that a recodified statute does not make substantive 

changes in the former statute unless a contrary intent plainly appears in the recodified statute.”), 

so as to clearly include a sexual touching involving a child under the age of thirteen in the realm 

of statutory crimes for which the presence of force or consent is irrelevant, much like statutory 

rape. Prior to that amendment, however, the portion of the statute under which appellant was 

convicted, strictly construed in favor of appellant’s liberty, required proof of some type of force 

and was not satisfied by proof merely of the victim’s young age. 

 5

 The majority relies on constructive force principles applicable at common law and 

attempts, without citation to controlling authority, to apply these principles to all sexual offenses 

involving minors. This case involves a statutory offense necessitating the application of 

accepted principles of statutory construction, to which I believe the majority gives insufficient 

deference. Where a statute proscribes certain behavior based on both the age of the victim and 

the fact that the act was accomplished using force, it would be incongruous to conclude that 

proving the victim was beneath the common-law age of consent also satisfied the express 

requirement of proving force. See, e.g., McBride v. Commonwealth, 44 Va. App., 526, 531, 605 

S.E.2d 773, 775 (2004) (“By statute, an adult having sexual intercourse with a child thirteen 

years of age or older but under fifteen years of age either commits rape, if the act is 

accomplished by force, see Code § 18.2-61, or commits carnal knowledge, if the act is 

committed without the use of force, see Code § 18.2-63.”). I do not believe the result should be 

any different in this case simply because the age requirement is contained in Code 

§ 18.2-67.3(A)(1) and the force requirement is contained in Code § 18.2-67.10(6)’s definition of 

sexual abuse. 
- 12 -

 Further, any ambiguity in the statutes comes into play only when one compares the 

offenses proscribed by subsection (A)(1) of the aggravated battery statute, Code § 18.2-67.3, 

with those proscribed by subsection (A)(2). In applying subsection (A)(1) of the aggravated 

sexual battery statute, we may not ignore the element of force in the definition of sexual abuse in 

subsections (b) and (c) of Code § 18.2-67.10(6) simply because the inclusion of that element 

may overlap with the element of force contained in subsection (A)(2) of the aggravated sexual 

battery statute. The legislature’s failure to more clearly delineate the differences in the two 

categories of aggravated sexual battery is ambiguous at best and cannot be used to save this 

conviction. We must construe Code § 18.2-67.3(A)(1) and Code § 18.2-67.10(6)(b) in favor of 

appellant’s liberty, by requiring proof under the facts of this case that the complaining witness’ 

touching of appellant’s penis was accomplished by some force exerted by the accused. 

 Finally, I believe the majority misapplies the principle that, to the extent two statutes on 

the same subject cannot be harmonized, “the more specific statute takes precedence over the 

more general one.” Seaton v. Commonwealth, 42 Va. App. 739, 758-59, 595 S.E.2d 9, 18-19 

(2004); see also Powell v. Commonwealth, 261 Va. 512, 544, 552 S.E.2d 344, 362 (2001); 

Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618 (1992). Seaton, Powell, and 

Thomas, relied upon by the majority, did not involve a conflict in two statutes required to be read 

together in order to define the elements of a criminal offense. See Seaton, 42 Va. App. at 

758-59, 595 S.E.2d at 18-19 (applying principle in context of resolving question about 

admissibility of evidence in penalty phase); see also Powell, 261 Va. at 544, 552 S.E.2d at 362 

(applying principle in penalty rather than guilt phase, where court had “already determined that 

the conviction underlying [the] death sentence [would] be reversed,” to conclude that provision 

of Code § 18.2-10 permitting punishment of death, life imprisonment, or life imprisonment plus 

a fine, controlled over Code § 19.2-264.4(D), which set out language to be used in jury verdict 
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form and included as only punishment options a sentence of life imprisonment or death; and 

holding defendant was entitled to “jury verdict forms with sentencing options that accurately and 

expressly correspond to the trial court’s sentencing instruction”); Thomas, 244 Va. at 22-23, 419 

S.E.2d at 618 (also applying principle in penalty phase). Where penal statutes defining the 

elements of a criminal offense conflict and cannot be harmonized, we must apply the paramount 

principle that penal statutes must be strictly construed against the Commonwealth, see Waldrop, 

255 Va. at 214, 495 S.E.2d at 825. The fact that “sexual abuse” is defined in Code 

§ 18.2-67.10(6) and incorporated by reference into Code § 18.2-67.3(A)’s definition of 

aggravated sexual battery does not justify the conclusion Code § 18.2-67.10(6) is a more general 

statute over which the language of Code § 18.2-67.3(A) takes precedence. We may not simply 

ignore a clear element of the crime of aggravated sexual battery under the guise of statutory 

construction. Cf. Coleman v. City of Richmond, 5 Va. App. 459, 466, 364 S.E.2d 239, 243 (A 

penal statute is unconstitutionally void-for-vagueness if it does not “‘give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited so that he may act 

accordingly.’” (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 

2298-99, 33 L. Ed. 2d 222 (1972)), reh’g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). 

For these reasons, I would hold the version of Code § 18.2-67.3(A)(1) in effect at the 

time of the acts at issue, as further defined by Code § 18.2-67.10(6)(b), required proof that the 

victim’s touching of the accused occurred because of some “force[]” exerted by the accused. 

Basic principles of statutory construction compel the conclusion that, however offensive 

Martin’s conduct, proof of “constructive” force based on the age of the victim was insufficient to 

prove the requisite force under the applicable version of the statutes. Thus, I would reverse 

appellant’s conviction and dismiss the complaint, and I respectfully dissent.