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Present:    All the Justices
JAMES MARTIN
v.    Record No.  052060                                               OPINION BY JUSTICE ELIZABETH B. LACY
                                                                       June  8,  2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
James A. Martin was convicted of aggravated sexual
battery, a violation of Code  §  18.2-67.3, based on events
occurring in February  2003.1    The facts are undisputed.
Martin, then fourteen years old, exposed his penis to the
eight-year-old victim, asked the victim to masturbate him and,
following Martin's directions, the victim complied.    Martin's
conviction was affirmed by the Court of Appeals in an
unpublished opinion with one judge dissenting.    Martin v.
Commonwealth, Record No.  1966-04-4  (Sept.  6,  2005).    The issue
in this appeal, as in the courts below, is whether the
controlling statutes required the use of actual force to
establish sexual abuse as defined by the  2003 version of Code
§  18.2-67.10(6)(b).2
1 Code  §  18.2-67.3  (1996) was amended in  2004 but that
amendment did not alter the provisions of subsection  (A)(1)
under which Martin was convicted.    See  2004 Acts ch.  843.
2 Former Code  §  18.2-67.10(6)(1996), defining sexual
abuse, was amended in  2004.    See  2004 Acts ch.  741  (amending
subsection  (b) of former Code  §  18.2-67.10).    Subsequent
references to this statute are to the version in effect at the
time of the offense in this case unless otherwise indicated.




At the time of this offense, "sexual abuse" was defined
by 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.
Code  §  18.2-67.3(A)(1) provides that a person is 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.
Martin was convicted of aggravated sexual battery under
subsection  (A)(1) of Code  §  18.2-67.3 based on his sexual
abuse of the victim under subparagraph  (b) of Code  §  18.2-
67.10(6).
Martin argues that Code  §  18.2-67.10(6)(b) required an
overt act of actual force and that, in the absence of such an
act, his conviction cannot be sustained.    Martin supports his
position with three arguments.    First, he claims the plain
meaning of "force" or "forces" requires an overt physical act;
second, adopting the reasoning of the dissent in the Court of
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Appeals, he asserts that allowing proof of age to satisfy
elements in both statutes would be "incongruous;" and finally,
he argues that in  2004 the General Assembly substantively
changed the law by eliminating force from a category of acts
that constitute sexual abuse of children under the age of
thirteen resulting in the conclusion that actual force was
required prior to the amendment.3    We consider Martin's
arguments in order.
First, the General Assembly has not defined "force" in
the context of sexual abuse.    Nevertheless, our cases have
discussed the nature of "force" in sexual offenses and we have
repeatedly held that "force" includes both actual and
constructive force.    For example, in a prosecution for rape,
we held that "force, actual or constructive" is an essential
element of the crime, Stump v. Commonwealth,  137 Va.  804,  807,
119 S.E.  72,  73  (1923), and in Davis v. Commonwealth,  186 Va.
936,  946,  45 S.E.2d  167,  171  (1947), we stated that "[u]nder
the law two types of force, active and constructive, are
recognized."    See also Jones v. Commonwealth,  219 Va.  983,
3 Martin also relies on Johnson v. Commonwealth,  5 Va.
App.  529,  534-35,  365 S.E.2d  237,  240  (1988), in which the
Court of Appeals held that a conviction for aggravated sexual
battery under Code  §  18.2-67.3(2) required overt force.    That
case is not relevant here because the victim was over the age
of thirteen and the sexual abuse was alleged pursuant to acts
described in Code  §  18.2-67.10(6)(a).    Id. at  532-34,  365
S.E.2d at  239-40.
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985,  252 S.E.2d  370,  372  (1979)  (General rule that "force,
actual or constructive" is essential element of non-statutory
rape).    Given this long history in which our jurisprudence has
recognized that "force" may include both constructive and
actual force and in the absence of any legislative definition
of "force," we cannot conclude that the General Assembly
intended to limit the meaning of the word "force" to actual
force for purposes of Code  §  18.2-67.10  (6)(b).    See Waterman
v. Halverson,  261 Va.  203,  207,  540 S.E.2d  867,  869  (2001)
("The General Assembly is presumed to be aware of the
decisions of this Court when enacting legislation."); Dodson
v. Potomac Mack Sales & Service, Inc.,  241 Va.  89,  94,  400
S.E.2d  178,  180  (1991).
Equally long-standing is the principle that in the
context of sexual crimes, an act undertaken against a victim's
will and without the victim's consent is an act undertaken
with force.    Jones,  219 Va. at  986,  252 S.E.2d at  372.    Again,
in the context of a rape prosecution, we held that
constructive force exists if the victim could not legally
consent to the act.    Stump,  137 Va. at  807,  119 S.E. at  73.
Proof of the absence of legal consent provides "all the force
which the law demands as an element of the crime."    Bailey v.
Commonwealth,  82 Va.  (7 Hans.)  107,  111  (1886).    For these
reasons, we reject Martin's contention that as used in Code
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§  18.2-67.10(6) "force" means actual force, and we conclude
that "force" includes actual and constructive force and that
constructive force includes engaging in proscribed conduct
with a victim who is under the legal age of consent.
Martin's second argument is based on the reasoning of the
dissent in the Court of Appeals:    "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."    Martin, Record No.  1966-04-4,
slip op. at  11 n.5  (Elder, J., dissenting).    We disagree that
the use of a common set of facts for proof of differing
elements of a crime is incongruous.
The prosecution for aggravated sexual battery in this
case required a showing of sexual abuse under Code  §  18.2-
67.10 (6)                                                           (b), which includes proof of force, and a showing that
the victim was under  13 years of age, Code  §  18.2-67.3(A)(1).
The common factual element in this case  - the age of the
victim  - serves as proof of both the force requirement and the
age requirement.    Such a circumstance is neither improper nor
incongruous.
Finally, Martin asserts that the  2004 amendment to Code
§  18.2-67.10(6) supports his contention that, prior to that
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amendment, actual force was necessary to establish sexual
abuse under the circumstances of this case.    The  2004
amendment added a new subparagraph  (c) to the definition of
sexual abuse set out in that statute:    where the accused
causes a victim under the age of thirteen to touch the
intimate parts or clothing covering the intimate parts of the
accused, the victim or another person.    Code  §  18.2-
67.10 (6)                                                          (c).    The  2004 amendment did not remove the element of
force from the other actions defined as sexual abuse nor did
it define "force" to exclude constructive force.    The
substantive change effected by the  2004 amendment was the
creation of a category of sexual abuse based on the age of the
victim.    While force is not an element of this category of
sexual abuse, it does not follow that actions undertaken with
constructive force could not qualify as sexual abuse under
other provisions of the current statute or under the
provisions of the previous statute.    Therefore, we do not
consider the  2004 amendment as altering the definition of
force when used in the context of sexual crimes.
Accordingly, for the reasons stated in this opinion, we
conclude that the evidence showed that Martin sexually abused
the victim as defined by former Code  §  18.2-67.10(6)(b) and
that the victim was under thirteen years of age.    Accordingly,
we will affirm the judgment of the Court of Appeals sustaining
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Martin's conviction of aggravated sexual battery under former
Code  §  18.2-67.3(A)(1).4
Affirmed.
4 Martin did not provide any argument in support of his
second assignment of error relating to a finding of
"constructive force" based on the disparity in age between
Martin and the victim. Consequently, we do not address this
issue.    Rule  5:17(c); Rule  5:27.
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