Kaltenbach argued successfully that sexual abuse is a felony assault. Although the judge said there is no state legal precedent, he ruled that the question should go to Tharp's jury. Some legal experts also have fundamental problems with the decision. I'm extremely troubled by the stretch that's being made because that's way beyond what a reasonable reading of this language is, in my view. State law on sexual abuse does not mention an injury, Steele said.
State law defines an assault as a physical injury or a serious physical injury.
Kaltenbach says Tharp abused the baby before fatally beating her, and that he is prepared to prove that the defendant inflicted the blows. Glover said his office, the Department of Public Advocacy, searched records and found that the prosecutor's method of seeking a death penalty in Tharp's case had never been used in the United States.