Brett Zorse, 50, (shown here in a photo from Facebook) reportedly had a curious defense when he was accused of fondling a female passenger next to him on a JetBlue flight with his 12-year-old son. The alleged victim told police that when she confronted him he told her crudely that at least he did not penetrate her. Not exactly the best criminal defense the New Yorker could stake out on a charge of assault. He told police that he thought he had “bonded” with the 32-year-old woman. However, the federal assault provision seems dangerously vague on the element of this crime.
Zorse was on a flight on April 12, 2012 from San Francisco to New York to return to his home on the East Side of Manhattan with his son. The alleged victim said that Zorse engaged her in conversation on the flight but that Zorse’s “conversations throughout the flight all turned to a sexual nature” and that he was very “touchy feely.” When he was going to get something from the upper bin, she offered to do it for him to avoid having him climb over her. Zorse allegedly responded “I’d really like to climb all over you.”
The woman eventually took a medication to sleep on the flight but woke up as they were approaching JFK International Airport to allegedly find Zorse “massaging her thigh underneath her skirt.” It is not clear where Zorse’s teenage son is during this scene. However, when the woman objected, she said Zorse responded “It’s not like I molested you. It’s not like I stuck my finger in your pussy or grabbed your tits.” He then allegedly added, “I wouldn’t mind a massage right now.”
The woman left her seat in tears but had to return to land. Remarkably, she did not tell anyone about the incident until later when she contacted JetBlue and the NYPD. The police say that Zorse admitted to only placing his hand on the woman’s leg for about 30 seconds and that it was the 32 year old woman who was flirting with this 50 year old man. He reported that she was “telling him he was attractive and he was a good father.” Being a good father appears to include hitting on a woman on a flight with your son and saying suggestive sexual things to her.
He admits that he “could have said something like ‘It’s not like I stuck my finger up your pussy or grabbed your tits,’” according to police.
Zorse is an “independent financial services professional” though there is not a great deal of information about him.
We have seen such groping cases previously, including a conviction of a Rabbi on a New York flight. The case will turn on the credibility of the witnesses since it does not appear that a third person saw Zorse’s actual touching of the woman. There may be witnesses on her leaving her seat crying. However, if there are no witnesses, the testimony would seem to stand in equipoise. If the court (this is a misdemeanor offense) accepts that only a hand on the leg can be confirmed from these facts, is it enough for assault on a plane where people routinely come into contact with one another?
This is a federal charge since it occurred on an airplane. However, the New York assault in third degree provision requires intent to cause injury or reckless/negligence injury:
S 120.00 Assault in the third degree.
A person is guilty of assault in the third degree when:
1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.
Assault in the third degree is a class A misdemeanor.
Zorse is charged under 18 U.S.C. 113 which is remarkably ill-defined on the topic of “simple assault”:
(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
(1) Assault with intent to commit murder, by imprisonment for not more than twenty years.
(2) Assault with intent to commit any felony, except murder or a felony under chapter 109A, by a fine under this title or imprisonment for not more than ten years, or both.
(3) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.
(4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than six months, or both.
(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year, or both.
(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.
(7) Assault resulting in substantial bodily injury to an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 5 years, or both.
(b) As used in this subsection—
(1) the term “substantial bodily injury” means bodily injury which involves—
(A) a temporary but substantial disfigurement; or
(B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty; and
(2) the term “serious bodily injury” has the meaning given that term in section 1365 of this title.
While the higher forms of assault are defined clearly, simple assault is not. That leads to a dangerous degree of ambiguity. In tort, assault is the intent to cause an apprehension of harmful or offensive contact without the consent of the individual. In criminal law, however, it is presumable more than the criminalization of the tort standard. Indeed, most states follow the same rough definition of the New York statute like the Florida provision:
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
It seems to me that the federal standard is seriously flawed as the basis for a criminal charge, putting aside any feelings toward Zorse. What do you think?
Source: Smoking Gun