MODEL PENAL CODE ANNOTATED

COMMONWEALTH of Pennsylvania

v.
Joseph TAVARES, Appellant
Superior Court of Pennsylvania
382 Pa.Super. 317,  555 A.2d 199 (1989)

 BECK, Judge:

 Joseph Tavares appeals the judgment of sentence of three to ten years imprisonment following a bench trial in which he was convicted of attempted involuntary deviate sexual intercourse (IDSI), indecent assault, and unlawful restraint.

 [p. 320] Tavares, an attendant at Inglis House, a home for handicapped persons, entered the room of David Savage, a nineteen year old resident with cerebral palsy.  David was talking with another resident, Michael Panunto, who also has cerebral palsy and who was sitting in his wheelchair next to David's bed. Tavares asked the two if they wanted to have sex.  Thinking he meant "with a girl, not with a man" David said yes.  Michael, who communicates through the use of a speak and spell word board, indicated, "No."  Tavares pushed David's wheelchair against the door to hold it closed.  He pulled down David's bedsheet, removed his bed bag, and placed Michael's hand on David's penis. David said "knock it the fuck off, Joe" and Michael removed his hand.  Tavares then placed Michael's hand back on David's penis, and pushed Michael's head down to within an inch or two of David's penis.  Michael tried to pull his head back up, but could not overcome Tavares' hold.  The episode ended when David's father knocked on the door and an attendant brought in lunch trays.  Shortly thereafter, Michael telephoned his mother and, with the aid of the speak and spell, communicated what had happened.  Mrs. Panunto went to Inglis house where both Michael and David repeated to her the story of what had occurred.  Mrs. Panunto reported the incident to the head of nursing, and after a week with no result, she reported the incident to police.

 Tavares was convicted in a non-jury trial of attempted IDSI, indecent assault, and unlawful restraint. 

   Tavares contends that the trial court erred in convicting him of attempted IDSI and indecent assault as he did not engage in the proscribed conduct with either of the complainants.  The IDSI statute provides in pertinent part:
3123. Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
 18 Pa.C.S.A. section 3123 (Purdon 1983).  The indecent assault statute provides:
3126. Indecent Assault
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact [p. 322] with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(1) he does so without consent of the other person;
 18 Pa.C.S.A. section 3126 (Purdon 1983).

 Although Tavares did not himself have indecent contact with the complainants, criminal liability was extended to him under the statute relating to liability for the conduct of another, 18 Pa.C.S.A. section 306 (Purdon 1983). Section 306 provides, in pertinent part:
306. Liability for conduct of another;  complicity
(a) General rule.--A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another.--A person is legally accountable for the conduct of another person when:
(1) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct.

 The issue of whether one may be held criminally responsible for causing an indecent contact between two unconsenting individuals is one of first impression in this jurisdiction. [n. 1]  We hold that section 306 imputes criminal liability to the individual who forces unlawful contact between two innocent victims.
 

 Section 306 was derived verbatim from the Model Penal Code.  The Official Comment to the Model Penal Code explains that this particular provision restates the "universally acknowledged principle that one is no less guilty of the commission of a crime because he uses the overt conduct of an innocent or irresponsible agent."  Model Penal Code Section 2.06(2)(a), Comment at 300 (Official Draft, 1985).  Furthermore, the Official Comment points out that this [p. 323] provision "determine[s] liability by the culpability and state of mind of the defendant, coupled with his own overt conduct and the  conduct in which he caused another to engage."  Id.  Comment at 303.

 We note in passing that other states have acknowledged criminal liability of a third party who has caused two innocent victims to engage in proscribed conduct.  For example, the California Court of Appeals, in Commonwealth v. Hernandez, 18 Cal.App.3d 651, 96 Cal Rptr. 71 (1971), sustained the conviction of a woman who compelled her husband, at gunpoint, to have sex with another, nonconsenting woman.  Applying what it termed the "innocent conduit theory" the court noted that without this theory "the laws ... would create a crime without a punishable perpetrator."  See also State v. Thomas, 619 S.W.2d 513 (Tenn.1981) (defendant criminally liable for forcing wife to perform fellatio on her husband.);  People v. Roberts, 26 Cal.App.3d 385, 103 Cal.Rptr. 25 (1972) (upholding conviction of defendant for instructing children to engage in sexual activities with one another.);  State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986) (defendant criminally liable for forcing victims to have intercourse).