On close reading of the Wells decision, we conclude the Wells court mislabeled its summary as a definition of one element of the crime of indecent liberties with a child—the element of a "lewd fondling or touching"—when the court was actually restating both elements of the crime in commonly understood terms. This mislabeling is made apparent by a reading of the Wells court's prior discussion of the definition of "lewd" because in that more expanded discussion the court defined the criminal act element by looking at the definition of lewd and determining the element was aimed at an act that tends to undermine the morals of the child and which is so clearly offensive as to outrage the moral senses of a reasonable person. Intent was not a part of the discussion. Subsequent decisions of this court verify that the focus must be on the nature of the act.The KSC went on to clarify that improper intent must be coupled with an improper act:
Here, the trial judge's findings similarly collapsed the two elements into one, and the State perpetuates this error on appeal by arguing the strong evidence of intent is proof Ta's acts were lewd. This interpretation of the law reverts to the crime found to be unconstitutionally vague in Conley; it makes any fondling or touching a violation of the statute as long as the act is performed with a lewd intent. To avoid this constitutional infirmity, there must be evidence that the act was lewd, and this element should not be dependent upon the subjective intent of a defendant.
To hold otherwise would allow punishment for impure, criminal thoughts, and it is a fundamental principle that "the law does not punish criminal thoughts." United States v. Shabani, 513 U.S. 10, 16, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994); see [United States v. Apfelbaum, 445 U.S. 115, 131 n. 13, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980)] (observing that Shakespeare had expressed sound legal doctrine when he wrote a person's "'acts did not o'ertake his bad intent;/And must be buried but as an intent/That perish'd by the way: thoughts are no subjects,/Intents but merely thoughts.' Measure for Measure, Act V, Scene 1; G. Williams, Criminal Law, The General Part 1 [2d ed. 1961.]"). Both a criminal act, an actus reus, and a culpable mental state, a mens rea, are required for the offense to occur.
In summary, a defendant's mental state should not be used to define or determine whether a touching is lewd. We, therefore, clarify Wells and hold that whether a touching is lewd should be determined by considering the common meaning of the term "lewd," that is whether a touching is "sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious."Although the KSC agreed that the touching in the instant case, although awkward, was not lewd. As a result, the convictions are reversed. Apparently (and thankfully), we won't be hiring thought police any time soon.