                   IN THE SUPREME COURT OF IOWA

                                No. 08–1524

                             Filed June 24, 2011


STATE OF IOWA,

      Appellee,

vs.

RANDY SCOTT MEYERS,

      Appellant.



      On review from the Iowa Court of Appeals



      Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.



      Defendant seeks further review of court of appeals’ decision affirming

his conviction for sexual abuse and lascivious acts with a minor. DECISION

OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and David A. Adams,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, Michael J. Walton, County Attorney, and Julie A. Walton,

Assistant County Attorney, for appellee.
                                       2

CADY, Chief Justice.

      Randy Scott Meyers seeks further review of a decision by the court of

appeals that affirmed his conviction for sexual abuse in the third degree and

lascivious conduct with a minor. Meyers primarily challenges the sufficiency

of the evidence to support the convictions.    On our review, we affirm the

decision of the court of appeals and affirm the judgment and sentence of the

district court.

      I. Background Facts and Prior Proceedings.

      In the fall of 1993, Randy Scott Meyers met and began dating Patricia,

a single mother of two children. Meyers was thirty years old. Patricia and

her children lived in Davenport. The oldest child, Mindy, was six years old

at the time.      Meyers moved in with Patricia and her two children in the

spring of 1994. The couple had one child together later that year.

      In June 1995, Meyers was convicted of the crime of lascivious acts

with a child after Patricia found Meyers engaging in sexual activity with

Mindy in her bedroom. He was sentenced to five years in prison. Shortly

after he completed serving his sentence, Meyers returned to live with Patricia

and her children. He then married Patricia, and the couple continued to live

together in Davenport with the children.

      Patricia suffered from bipolar disorder during the course of their

marriage.   She threatened and attempted suicide while the children were

present and was hospitalized.     Meyers was the “controlling figure” to the

children. At times, Meyers physically and mentally abused Mindy, as well as

her younger brother.       In September 2004, the Department of Human

Services (DHS) investigated an injury inflicted on Mindy by Meyers.

      After the incident of physical abuse, the already contentious familial

circumstances deteriorated rapidly. Meyers, Patricia, and Mindy had started

to smoke crack cocaine together.       Meyers supplied the cocaine.    Mindy
                                              3

quickly developed an addiction to the drug, which caused her to drop out of

high school. She was seventeen years old. In late 2004, Patricia sought and

received a protective order against Meyers that required him to move out of

their Davenport home.           Disharmony also developed between Mindy and

Patricia, which caused Mindy to leave the home.                  She began living with

Meyers in his trailer outside Davenport.

      On New Year’s Eve 2004, Meyers and Mindy had a party at the trailer.

Mindy consumed alcohol at the party.               On at least two occasions, guests

observed Mindy and Meyers go into Meyers’ bedroom or the bathroom

together for thirty minutes or more. On a separate occasion, Meyers was

observed touching Mindy’s face and hair in a romantic way while telling her

she was beautiful.

      Mindy lived with Meyers until January 2005, when Patricia sought

and obtained a court order for her involuntary commitment for drug

treatment.   Mindy was initially admitted to a hospital in Davenport for

treatment.   In the spring of 2005, she was transferred to Youth Shelter

Services, a residential treatment facility in Ames.

      After Mindy was placed at Youth Shelter Services, Meyers moved to

Ames to be closer to her.           He was subsequently convicted of lascivious

conduct with a minor and was sentenced to one year in jail. Mindy was the

victim of the crime.       While in jail, Meyers sent Mindy a series of letters.

Many of the letters professed love for Mindy and revealed she was the object

of his sexual and romantic desires.               In one letter dated March 8, 2006,

Meyers wrote:

      All I want is to buy you things (hold you) and make little ones
      with you. Please be mine. . . . It’s been over 60 days since I’ve
      had sex. It has been with this one beautiful blonde. 1 . . . She is
      so gorgouse [sic] so careing [sic] and everything I’ve ever wanted.

      1Evidence   at trial showed the phrase “beautiful blonde” referred to Mindy.
                                         4
         I love this beautiful blond! (Her p---- taste great) The best I’ve
         ever tasted. The best in bed also and she treats me like a king
         ....

         In another letter to Mindy dated March 12, 2006, Meyers wrote:       “I

must have you soon. I must hold you soon . . . . Remember our shower. I

love memories . . . . I’d give anything to have you again and again and again.

You no [sic] what I mean.” Meyers also described Mindy’s physical attributes

in a letter dated March 11, in which he stated:

         Your legs are awesome your hips are perfect your chest is more
         woman than I can handle your lips are thin and hot your face is
         perfect your toes are cool but I’ll admit I haven’t looked at them
         as much as your beautiful body but I will!

These letters were signed “Love, Randy.”        In other letters, Meyers signed

“Love, Dad.” In one such letter, Meyers advised Mindy to sell his truck and

keep the money to live on and to “be a good kid.” Mindy gave the letters to

her Alcoholics Anonymous sponsor and friend, Johnna Folkmann-Ask.

Folkmann-Ask confronted Meyers about the letters over the phone and told

Meyers to stop calling Mindy.

         The DHS child protection worker, who had been initially involved with

the family in 2004, Kim Cronkleton Fish, continued working with the

family’s case in 2005. In June 2005, Fish visited Mindy at the Ames shelter
to follow up on a report of sexual abuse between Meyers and Mindy. Fish

also interviewed Meyers, who admitted he and Mindy had “crossed the line”

and that he knew it was wrong. Meyers further admitted to Fish that the

sexual activity with Mindy he described in the letters had actually taken

place.

         The State charged Meyers with two counts of sexual abuse in the third

degree, one count of lascivious conduct with a minor, and one count of

distributing a controlled substance to a minor for his conduct with Mindy

while they resided together in Meyers’ trailer between September 2004 and
                                            5

January 2005.       The State offered two alternative theories of sexual abuse

under Iowa Code section 709.4 (2003). The first alternative alleged Meyers

performed sex acts by force or against Mindy’s will.                    See Iowa Code

§ 709.4(1). The second alternative alleged Meyers performed sex acts at a

time when Mindy was suffering from a mental defect or incapacity. See id.

§ 709.4(2)(a).    Meyers waived his right to a jury trial and proceeded to a

bench trial.     Mindy did not testify at trial, and the trial court denied the

State’s offer to admit her deposition into evidence in her absence.

       At trial, the State introduced evidence consistent with the background

facts set forth in this opinion. Additionally, the State offered the testimony

of an expert witness, Dr. Richard Hutchison, a board-certified clinical

psychologist who specializes in the mental health treatment of children and

families.      Dr. Hutchison opined that Mindy did not have the ability to

consent to a sex act with Meyers under all the circumstances of the case.

The State asked Dr. Hutchison a series of hypothetical questions about the

psychological state of a girl in Mindy’s circumstances from the time she was

sexually abused as a young child by her stepfather to when she moved in

with her stepfather and began a romantic relationship with him involving

sex. 2 Dr. Hutchison generally opined that a girl in Mindy’s situation would

not be psychologically able to effectively consent to sex with her stepfather.

He testified that Meyer’s past abuse of Mindy in their home as her father

figure, along with Patricia’s support of Meyers following the abuse, would

confuse a child’s boundaries and freeze the child’s emotions at the age of the

trauma if left untreated. Dr. Hutchison also testified a child witnessing and


       2Iowa  prohibits a sexual relationship between stepparent and stepchild when the
parents are still married. See Iowa Code § 726.2; see also Back v. Back, 148 Iowa 223, 231,
125 N.W. 1009, 1012 (1910). An incestuous relationship, however, is not the same as sex
without consent. State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, 527 (1943). The State
did not charge Meyers under section 726.2.
                                          6

experiencing physical violence in the home by Meyers would fear resisting

him.    He further testified that a chaotic household without appropriate

decision   making      and   boundaries   would    cause   increased    confusion.

Additionally, Dr. Hutchison testified an addiction to crack cocaine, with the

authority figure as the supplier, would cause a physiological layer of

dependency. The State concluded its questioning of Dr. Hutchison by asking

him to express his expert opinion about Mindy’s ability to consent to sexual

activity with Meyers based on the evidence presented at trial. Dr. Hutchison

concluded the combination of all the factors in Mindy’s life would cause her

to have a “below normal” ability to resist her stepfather and that, ultimately,

Mindy would not have the ability to consent to sex with him.

       The district court found Meyers guilty of all charges against him. The

court concluded there was insufficient evidence Mindy was “mentally

incapacitated” under Iowa Code section 709.4(2)(a) at the time of the sex

acts with Meyers. Yet, it found Meyers guilty of sexual abuse in the third

degree under the totality of the circumstances that showed the sex acts were

against Mindy’s will because they occurred while she was psychologically

unable to consent to Meyers’ advances as her stepparent. See Iowa Code

§ 709.4(1).      Relying on the same facts, the court found Meyers guilty of

lascivious conduct with a minor based on evidence that Meyers had

“persuaded [Mindy] to disrobe for the purpose of arousing his sexual

desires.” See id. § 709.14. Finally, the court found the State proved Meyers

was guilty of distributing a controlled substance to a minor under Iowa Code

section 124.406.

       Meyers appealed from his conviction for lascivious conduct with a

minor and sex abuse in the third degree. 3          He primarily challenged the

       3Meyers  does not appeal from his conviction for distribution of a controlled
substance to a minor under Iowa Code section 124.406.
                                      7

sufficiency of the evidence to support the conviction.      The thrust of the

challenge targets the absence of testimony from Mindy that the sex acts with

him were by force or against her will.        Meyers asserts Mindy’s consent

cannot be negated without expert evidence that she suffered from a

recognized mental defect. He claims the expert testimony presented by the

State that she was psychologically unable to consent is insufficient to vitiate

consent under the statute. We transferred the case to the court of appeals.

A divided court affirmed the judgment and sentence of the district court. We

granted Meyers’ request for further review.

      II. Scope of Review.

      We review challenges to the sufficiency of evidence presented at trial

for correction of errors at law. State v. Hennings, 791 N.W.2d 828, 832 (Iowa

2010). In doing so, we examine whether, taken in the light most favorable to

the State, the finding of guilt is supported by substantial evidence in the

record. Id. at 832–33. We find evidence substantial if it would convince a

rational fact finder the defendant is guilty beyond a reasonable doubt. State

v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).            We draw all fair and

reasonable inferences that may be deduced from the evidence in the record.

Hennings, 791 N.W.2d at 832–33.           In assessing the sufficiency of the

evidence, we find circumstantial evidence equally as probative as direct.

State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994).

      III. Evidence of Sexual Abuse.

      The State alleges two separate occasions of sexual abuse between

September 2004 and January 2005. To sustain the conviction, there must

be sufficient evidence of every fact necessary to support each count.      See

State v. Capper, 539 N.W.2d 361, 364 (Iowa 1995) (“In determining the

sufficiency of the evidence we consider each count separately.”), rev’d on

other grounds by State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000). The first
                                      8

requirement for sexual abuse in the third degree is the State must provide

sufficient evidence a sex act occurred. See Iowa Code § 709.4. To prove a

sex act occurred, the State presented Meyers’ statements admitting to

numerous sex acts with Mindy, along with circumstantial evidence of the

existence of a sexual relationship.   Meyers claims there was insufficient

corroborative evidence to support his references to sex acts with Mindy.

      A. Sufficient Evidence of Sex Act. Our law on the admissibility of

confessions has been substantively unchanged since its inception in 1860.

See Iowa Code § 4806 (1860). Under this law, extrajudicial confessions of a

defendant cannot result in a conviction in the absence of corroborating

evidence of the crime charged. Iowa R. Crim. P. 2.21(4). The general policy

behind the statute is to help ensure convictions will not be based upon

untrue or coerced confessions. Comments on Recent Cases, 36 Iowa L. Rev.

694, 704 (1951); see also Warszower v. United States, 312 U.S. 342, 347, 61

S. Ct. 603, 606, 85 L. Ed. 876, 880 (1941) (“The rule requiring corroboration

of confessions protects the administration of the criminal law against errors

in convictions based upon untrue confessions alone.”).

      Although there is no confession by Meyers in this case to any of the

charges, there were numerous admissions.       Admissions can constitute a

confession when they “amount to an acknowledgement of the guilt of the

offense charged.” Capper, 539 N.W.2d at 364. As a result, admissions are

treated with the same evidentiary precautions as confessions. See State v.

Polly, 657 N.W.2d 462, 466 n.1 (Iowa 2003). Thus, admissions of essential

facts or elements of the crime made after the alleged crime must be

supported with sufficient corroborating evidence. Id.

      Corroborating evidence is sufficient to support a conviction based on a

confession when it tends to “confirm[] some material fact connecting the

defendant with the crime.” State v. Robertson, 351 N.W.2d 790, 793 (Iowa
                                       9

1984). It is sufficient as long as it supports the content of the confession

and if, together with the confession, proves the elements of the charge

against the defendant beyond a reasonable doubt.         State v. Wescott, 130

Iowa 1, 8, 104 N.W. 341, 344 (1905). Corroborating evidence may be either

direct or circumstantial. See Liggins, 524 N.W.2d at 187. It need not be

strong evidence, “nor need it go to the whole of the case so long as it

confirms some material fact connecting the defendant with the crime.” Id.

Circumstantial corroborating evidence may include several facts that, when

combined, support the admission. Id.

      Meyers admitted to instances of oral sex and sexual intercourse with

Mindy in letters he wrote in jail in the spring of 2005. Meyers specifically

recounted at least two instances of oral sex and sexual intercourse with

Mindy in these letters.      At trial, the State also presented evidence that

Meyers indicated the relationship and activity described in his letters to

Mindy were “her choice.” Finally, the child protective worker testified that

Meyers told her he and Mindy had “crossed the line,” and that he “knew it

was wrong, but it happened.”

      The State also offered additional facts that corroborated these

admissions. Aside from the testimony of the child protective worker and the

AA sponsor, the State introduced the testimony of Mindy’s friend, who said

Mindy disappeared with Meyers several times during a New Year’s Eve party

into Meyers’ bedroom and that Meyers generally behaved romantically

towards Mindy. The State also introduced evidence of the prior sexual abuse

of Mindy by Meyers in 1994 and 2005. Finally, Mindy’s AA sponsor testified

that Meyers and Mindy would sing a sexually explicit song to one another

during   their   telephone    conversations.     Taken    individually,   these

circumstances would not be legally conclusive as to the existence of any

sexual encounters between Mindy and Meyers.               However, we find,
                                         10

cumulatively, these circumstances “confirm[] some material fact connecting

the defendant with the crime.” Robertson, 351 N.W.2d at 793. As a result,

we conclude the district court did not err in finding sufficient evidence that

two sex acts occurred.

      B. Sufficient Evidence Sex Acts Were “By Force or Against the

Will of” Mindy. Meyers next claims there was insufficient evidence the sex

acts were done “against the will of” Mindy to support a conviction for sexual

abuse in the third degree. See Iowa Code § 709.4(1). He claims the evidence

of Mindy’s history with him is insufficient to establish her lack of consent,

even when aided by expert opinion.            Consistent with the decision of the

district court, the State asserts the statutory element of “by force or against

the will” includes circumstances in which pervasive psychological coercion

vitiates the consent of the victim.

      Structurally, Meyers argues his conduct in this case did not fall within

any specific statutory category of section 709.4 that addresses the inability

of the other person to consent, and there was no evidence presented at trial

of either physical force exhibited by him or nonconsent voiced or exhibited

by Mindy to support a conviction under the “by force or against the will”

standard of section 709.4(1).         In particular, Meyers argues the State’s

evidence attempted to show Mindy suffered from a mental defect, and the

mental-defect standard of section 709.4(2)(a) does not include the inability of

an otherwise mentally competent individual to consent to sex with just one

particular person.

      At the outset, it is unnecessary for us to address Meyers’ argument

that the “mental defect” standard under section 709.4(2)(a) is inapplicable to

the circumstances presented in this case.              Meyers was charged and

prosecuted under two categories of sexual abuse. The State alleged Meyers

engaged in sex acts with Mindy either “by force or against” her will under
                                      11

section 709.4(1) or while she was suffering from “a mental defect or

incapacity” that precluded consent under section 709.4(2)(a).     The district

court found insufficient evidence of a mental incapacity, but concluded there

was sufficient evidence of psychological manipulation by Meyers to establish

Mindy did not give effective consent under section 709.4(1).      The district

court found the sex acts were against Mindy’s will based on evidence

presented by the State’s expert witness. Thus, our task is to decide if the “by

force or against the will” standard of section 709.4(1) includes consent

negated by psychological factors and, if so, whether there was sufficient

evidence presented in this case to support a conviction. See 3 Charles E.

Torcia, Wharton’s Criminal Law § 287, at 30–31 (14th ed. 1980) [hereinafter

Torcia] (noting the terms “against the female’s will” and “without her

consent” are synonymous).

      We begin our resolution of the sufficiency-of-the-evidence issue by first

examining the applicable statutory language.         We recognize it is the

responsibility of our legislature to define crimes.     State v. Welton, 300

N.W.2d 157, 160 (Iowa 1981).       Our task is to apply and interpret such

statutes to carry out the legislative intent based on the facts and

circumstances of each case.      See Auen v. Alcoholic Beverages Div., 679

N.W.2d 586, 590 (Iowa 2004). When a statute is ambiguous, we employ our

familiar rules of statutory interpretation to aid us in ascertaining the intent

of the legislature. McCullah, 787 N.W.2d at 94. A statute is ambiguous if

reasonable minds could be uncertain as to “ ‘the general scope and meaning

of the statute when all of its provisions are examined.’ ” Id. (quoting Carolan

v. Hill, 553 N.W.2d 882, 887 (Iowa 1996)). We are primarily guided by what

the legislature said, not what it should or might have said. Carolan, 553

N.W.2d at 888. Aside from the express language used in the statute, we also

consider the overall object sought to be attained, the statute’s purpose and
                                       12

underlying policies, and the consequences of various interpretations.

McCullah, 787 N.W.2d at 94–95. In the end, a criminal statute cannot be

expanded beyond those circumstances intended by the legislature to be

within the scope of the statute. See State v. Hearn, 797 N.W.2d 577, 587

(Iowa 2011) (recognizing the “time-honored rule that criminal liability cannot

be   expanded    beyond   express     legislative   terms   by   construction   or

implication”).

      In our search for legislative intent in this case, we first examine the

legal history of the statute because it may shed light on whether the

particular facts before us were intended to be governed by the current law.

See 2B Norman J. Singer & J.D. Shambie Singer, Statutes & Statutory

Construction § 50:1, at 156 (7th ed. 2008) [hereinafter Singer]. As with many

other early criminal statutes, Iowa’s sexual abuse statute was based on the

common law. The common law declared it unlawful for a man to engage in

sexual intercourse with a woman by force and against her will.            Torcia,

§ 283, at 1. Over the years, statutes have expanded the common law crime

to include additional specific circumstances or categories of nonconsensual

conduct.   Model Penal Code & Commentaries § 213.1 cmt. 1, at 276–77

(1980) [hereinafter Model Penal Code]. The first expansion was to specifically

include children viewed by the law to be too young to effectively consent. Id.

§ 213.1 cmt. 1, at 276. This expansion occurred very early in history when

an English statute expanded the crime to include sexual intercourse with a

child under the age of ten years. Id. It occurred so early in time that it is

generally viewed as part of the common law and was readily accepted into

American law. Torcia, § 291, at 43.

      Iowa followed the common law approach when it enacted its rape

statute in 1851.   See Iowa Code § 2581 (1851).        This statute criminalized
                                            13

sexual intercourse with a child under the age of ten or with any other female

when “by force and against her will.” Id.

       Since that time, the Iowa legislature has built on the common law

approach by expanding the crime to add more specific categories of offensive

conduct.     These categories have been aligned with those circumstances

commonly      recognized      in    other   states   and    generally     involve    sexual

intercourse with individuals who are unconscious, drugged, or mentally

incompetent. See Iowa Code § 709.4. Today, Iowa’s statute maintains its

original common law standard of force and nonconsent, with only a slight

alteration from the past:          Iowa Code section 709.4(1) makes it a crime to

perform a sex act “by force or against the will of the other person” and

declares such conduct to be sexual abuse in the third degree. 4 Iowa Code

§ 709.4(1) (emphasis added). Our legislature changed the conjunctive “and”

to “or” in 1921.      See 1921 Iowa Acts ch. 192, § 1 (codified at Iowa Code

§ 12966 (1924)).

       Iowa’s sexual abuse statute then defines six additional categories of

third-degree sexual abuse.          See 4 Robert R. Rigg, Iowa Practice: Criminal

Law § 6.24, at 224 (2010).           The first category captures the circumstance

when the other person “is suffering from a mental defect or incapacity which
precludes giving consent.”          Iowa Code § 709.4(2)(a).       The second category

prohibits sex acts with a person who is twelve or thirteen years of age.5 Id.

       4Chapter   709 is a comprehensive set of laws generally defining the scope of sex acts
that are deemed offensive. Along with third-degree sexual abuse, the law also criminalizes
sex abuse causing another person serious injury as first-degree sexual abuse, classified as a
class “A” felony. Iowa Code § 709.2. Second-degree sexual abuse is a class “B” felony and
includes sexual abuse committed while using a dangerous weapon, sex acts with a person
under the age of twelve, and sex acts aided and abetted by one or more other individuals
and committed by force or against the will of the victim. Id. § 709.3. Several other
categories of sex abuse that qualify as misdemeanors or class “D” felonies are also included
in chapter 709. See id. §§ 709.12, .15–.16.
       5A sex act with a child less than twelve years of age is prohibited as second-degree
sexual abuse. Iowa Code § 709.3(2).
                                        14

§ 709.4(2)(b).   The third and fourth categories capture a variety of

circumstances when the other person is fourteen or fifteen years of age and

the defendant is a member of the same household, related by blood or

affinity to the fourth degree, an authority figure, or four or more years older

than the other person.       Id. § 709.4(2)(c).       The fifth category involves

situations in which the other person is under the influence of a controlled

substance that prevents consent, and the defendant reasonably knows the

person is under the influence of the substance. Id. § 709.4(3). The sixth

category criminalizes sex acts with a person who is “mentally incapacitated,

physically incapacitated, or physically helpless.” Id. § 709.4(4). While the

categories describe fact-specific circumstances, each category continues to

involve the absence of consent. Thus, consent remains the lynchpin of the

crime, and the legislature has sought over the years to identify more specific

circumstances of nonconsent while leaving the broader “against the will”

standard in place to capture all circumstances of actual nonconsent. See 2A

Singer § 47:17, at 378–79 (noting that, unless a contrary intention is

apparent, when specific terms follow general terms, the general terms

include everything embraced by the specific terms that follow along with

things beyond the specific terms that are similar in nature though not

expressly mentioned); see also 2A Singer § 47:25, at 429–35 (stating maxim

of expressio unius est exclusio alterius applies in narrow circumstances and

is to be disregarded when its application would “thwart the legislative intent

made apparent by the entire act”).      The structure of the statute does not

foreclose   psychological   circumstances     that    could     work   to   establish

nonconsent.

      Further    evidence    of   the   legislative    intent    for   psychological

circumstances to be included in “against the will” language of Iowa Code

section 709.4(1) can be found in the context of the surrounding statutes in
                                           15

chapter 709. See Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co.,

787 N.W.2d 75, 82 (Iowa 2010) (noting “we interpret statutes in their

context”).    Our legislature has specifically declared in section 709.5 that

physical resistance is not required “to establish that an act of abuse is

committed by force or against the will of a person.”          Iowa Code § 709.5.

Thus, nonconsent under the “against the will” language of section 709.4(1)

does not rely on the existence of physical resistance. Instead, the legislature

expressed its intention that “the circumstances surrounding the commission

of the act” be considered in determining whether the act was “by force or

against the will of the other.” Id. We have said that this language “means all

the circumstances, subjective as well as objective” are considered. State v.

Bauer, 324 N.W.2d 320, 322 (Iowa 1982).

       Additionally, section 709.1(1) declares the meaning of the phrase

“against the will of the other” includes acts done while the person is in a

state of unconsciousness. Iowa Code § 709.1(1). Clearly, the “against the

will   of    another”   standard   seeks    to   broadly   protect   persons   from

nonconsensual sex acts, even under circumstances showing the victim had

no opportunity or ability to consent due to the inherently coercive nature of

the circumstances.       Likewise, a psychological inability to consent broadly

protects individuals from nonconsensual sex when particular circumstances

have rendered that person incapable of consenting to the sexual advances of

a particular person. Importantly, the statute as a whole expresses no limit

on the conduct or circumstance that can be used to establish nonconsent

under section 709.4(1). See id. § 4.2 (directing courts to liberally construe

the provisions of the Code “with a view to promote its objects and assist the

parties in obtaining justice”); see also Hearn, 797 N.W.2d at 587 (noting in

our interpretation of statutes we “decline to narrow a broad legislative
                                       16

formulation by implying or constructing limitations not present in the

statute and undercutting its obvious public purpose”).

      The overall purpose of Iowa’s sexual abuse statute is to protect the

freedom of choice to engage in sex acts. See State v. Sullivan, 298 N.W.2d

267, 271 (Iowa 1980).       The sex abuse statute exists to protect a person’s

freedom of choice and to punish “unwanted and coerced intimacy.” Model

Penal Code § 213.1 cmt. 4, at 301.       A person who imposes a sex act on

another by force or compulsion under any circumstance violates the other’s

protected interest.   Id.    Yet, nonconsent includes both consent that is

nonexistent and consent that is ineffectual, and these circumstances have

been largely assimilated into the statute to account for its present expanded

categories of rape.   Id.    Nevertheless, “the unifying principle among this

diversity of conduct is the idea of meaningful consent.”         Id.   Consent

precludes rape, which conversely means the law of rape focuses on

“imposition by the actor under circumstances where there is an actual

failure of consent or where the law is prepared to characterize an actual

consent as incompetent.”      Id. Accordingly, sexual abuse today remains a

crime predicated on sex acts done by imposition.         Id.   This concept of

imposition has not been narrowed in any way by our legislature over the

years, but it remains at the heart of the statute to capture both case-specific

circumstances of an “actual failure of consent” as well as circumstances

when the legislature has declared “consent as incompetent” or nonexistent.

See id.

      This statutory approach to nonconsent under section 709.4(1) is

consistent with our prior cases. In Bauer, the defendant entered the home of

the victim through a window during the early morning hours, while the

victim was sleeping on a living room sofa. 324 N.W.2d at 321. The victim

awoke after the defendant began kissing her.       Id.   He then removed her
                                          17

clothing and engaged in sexual intercourse. Id. The defendant expressed no

threats and used no force, other than what was necessary to accomplish the

sexual intercourse. Id. The victim never physically resisted the defendant

and voiced no objections to his actions.        Id.   Instead, the victim made a

conscious decision to refrain from any outward protest because she feared

such resistance would place her in greater danger.            Id.   The victim felt

“paralyzed,” unable to resist the defendant’s advances, as she remembered a

past incident involving another woman found murdered in a ditch. Id. at

321–22. We affirmed the conviction for sexual abuse and rejected the claim

by the defendant that the circumstances did not amount to “force against

the will” of the victim. Id. at 322. We found the circumstances produced

fear in the mind of the victim that subjectively rendered her incapable of

protesting and resisting, which supported a finding that the advances of the

defendant were imposed against her will. Id.

      Importantly, Bauer illustrates that the mental state of the victim is a

proper   circumstance    to    consider    in   determining    if   a   sex   act   is

nonconsensual. The paralysis felt by the victim in Bauer is compatible with

the evidence of the fragile and frozen emotional state of Mindy brought about

by her unique and traumatizing history with Meyers as described by the

expert witness in this case.

      More directly, we recently observed the legislature never intended to

limit the circumstances that could be used to vitiate consent under the “by

force or against the will” standard of section 709.4(1) by specifically listing

the circumstances or categories under which consent may be vitiated. State

v. Bolsinger, 709 N.W.2d 560, 565 (Iowa 2006). Thus, we held that fraud in

fact could be used to establish nonconsent under section 709.4(1), even

though it was not included as a specific category of nonconsent under the

statute. Id. at 564–65. The approach we have taken in our prior cases does
                                            18

not exclude consideration of a victim’s psychological circumstances that may

vitiate consent.

       Additionally, other states have considered whether the statutory

element     of   “force”    required   to   support   sexual   abuse   can   include

psychological force. In Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.

1986), the Pennsylvania Supreme Court held the state’s rape statute’s

reference to “forcible compulsion” includes “not only physical force or

violence but also moral, psychological, or intellectual force used to compel a

person to engage in sexual intercourse against that person’s will.”             The

analysis of force by the Pennsylvania court focused on “the totality of the

circumstances.”       Id.    The court cited various factors for the analysis,

including

       the respective ages of the victim and the accused, the respective
       mental and physical conditions of the victim and the accused,
       the atmosphere and physical setting in which the incident was
       alleged to have taken place, the extent to which the accused may
       have been in a position of authority, domination or custodial
       control over the victim, and whether the victim was under
       duress.

Id.   The Pennsylvania legislature codified the court’s definition of “forcible

compulsion” soon after the court’s decision.           18 Pa. Cons. Stat. § 3101
(2008) (defining “forcible compulsion” as “[c]ompulsion by use of physical,

intellectual, moral, emotional or psychological force, either express or

implied”); see also Dan M. Kahan, Culture, Cognition, and Consent:             Who

Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. Pa. L. Rev.

729, 742 & n.45 (citing and describing the 1995 Pennsylvania act amending

the statute defining “forcible compulsion”).          Rhode Island also recognizes

psychological coercion as a form of constructive force, but only when the

coercion amounts to a threat. State v. Burke, 522 A.2d 725, 735 (R.I. 1987)

(“A threat may consist of the imposition of psychological pressure on one
                                       19

who, under the circumstances, is vulnerable and susceptible to such

pressure.”).

      Similarly, Ohio courts consider the relative age and relationship of the

parties to determine whether psychological force is sufficient. See State v.

Eskridge, 526 N.E.2d 304, 306 (Ohio 1988). However, Ohio’s approach to

psychological force was limited in a subsequent case, State v. Schaim, 600

N.E.2d 661, 665 (Ohio 1992). In Schaim, the court determined that a father

who had a history of sexual acts with his adoptive daughter was not guilty of

raping her when she became a twenty-year-old adult. Schaim, 600 N.E.2d at

665–66.   The court held the distinction between psychological force and

physical force was apparent when the victim was an adult child because an

adult child “is not compelled to submit to her father in the same manner as

is a four-year-old girl.    She is no longer completely dependent on her

parents, and is more nearly their equal in size, strength, and mental

resources.” Id. at 665. The court firmly held the age of the victim child was

significant because

      a child of tender years has no real power to resist his or her
      parent’s command, and every command contains an implicit
      threat of punishment for failure to obey.        Under these
      circumstances, a minimal degree of force will satisfy the
      elements of forcible rape. . . .
             . . . [A] pattern of incest will not substitute for the element
      of force where the state introduces no evidence that an adult
      victim believed that the defendant might use physical force
      against her.

Id.

      Finally, the consideration of psychological circumstances is consistent

with academic commentary examining the issue. Some scholars have opined

the definition of “force” should include psychological force akin to

parameters set out in contract law. Ann T. Spence, A Contract Reading of

Rape Law:      Redefining Force to Include Coercion, 37 Colum. J.L. & Soc.
                                         20

Probs. 57, 57 (2003) [hereinafter Spence] (suggesting contract theory be

extended to criminal law definition of “force”); see also James T. McHugh,

Interpreting the “Sexual Contract” in Pennsylvania:        The Motivations and

Legacy of Commonwealth of Pennsylvania v. Robert A. Berkowitz, 60 Alb. L.

Rev. 1677, 1686 (1997).       In Bolsinger, we held “[f]raud in fact vitiates

consent” to sex.       Bolsinger, 709 N.W.2d at 564.        Similarly, contract

principles applicable to finding adequate agreement between people in other

situations may aid in understanding whether there has been an equal

agreement to sex.      Spence, 37 Colum. J.L. & Soc. Probs. at 57; see also

Susan Estrich, Rape, 95 Yale L.J. 1087, 1120 (1986) (urging adoption of

standard that prohibits fraud to procure sex as contract law forbids fraud to

procure money). For example, “the doctrine of undue influence proscribes

the use of emotional or psychological force as a means of unfair persuasion

in a close relationship. . . . [and] [t]he doctrine of unconscionability can void

contracts that are unfair or reflect an imbalance in bargaining power.”

Spence, 37 Colum. J.L. & Soc. Probs. at 70. While there are also significant

differences between rape and illegal contracts, the doctrines may be

nevertheless helpful as a guide for conceptualizing the important freedom of

each individual to consent to sex that is protected by Iowa Code chapter 709.

Id. at 75.

      Considering the legislative history of Iowa’s sexual abuse statute, the

language and purpose of the statute, our prior cases interpreting the statute,

and the persuasive authority from other jurisdictions and scholars on the

topic, we conclude psychological force or inability to consent based on the

relationship and circumstance of the participants may give rise to a

conviction under the “against the will” element of section 709.4(1).         This

statutory    element   considers   all   circumstances   that   establish   actual

nonconsent, including any psychological circumstances particular to the
                                        21

participants. Thus, we turn to consider the facts in this case to decide if the

evidence was sufficient to support a conviction. In doing so, we follow our

long-standing admonition to review the evidence in a light most favorable to

upholding the verdict. State v. Kraklio, 560 N.W.2d 16, 17 (Iowa 1997).

      In assessing the evidence in this case, we note section 709.4(1) does

not require evidence of both force and lack of consent, but one or the other.

Iowa Code § 709.4(1).     Nevertheless, meaningful consent is the important

inquiry, and this inquiry normally takes into account circumstances

indicating any overreaching by the accused, together with circumstances

indicating any lack of consent by the other person.

      In this case, the State’s expert, Dr. Hutchison, rendered an opinion

based on the facts and inferences from the evidence established at trial that

a person in Mindy’s situation would have been unable to consent to a sex act

with Meyers.     Expert testimony may be used to assist a fact finder in

determining a victim’s state of mind as long as the expert does not testify to

the ultimate fact of the defendant’s guilt or innocence. See State v. Griffin,

564 N.W.2d 370, 374–75 (Iowa 1997) (recognizing evidence of battered

women’s syndrome from expert is admissible to show psychological reason

for victim’s recanting of accusation and refusal to testify against defendant);

see also State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997) (holding expert

witnesses “may express opinions on matters explaining the pertinent mental

and physical symptoms of the victims of abuse” if expert testified about the

effects of the victim’s mental condition on her ability to tell the truth); State

v. Gettier, 438 N.W.2d 1, 6 (Iowa 1989) (approving expert testimony linked to

an explanation of PTSD and the typical reaction of a rape victim); State v.

Chancy, 391 N.W.2d 231, 234 (Iowa 1986) (noting in third-degree sex abuse

trial that “there seems to be no question about the potential of psychological

evidence in the present case to assist the trier of fact[, and] [t]he victim’s lack
                                        22

of mental capacity is . . . key element in the crime charged”). We give the

district court’s assessment of the credibility of Dr. Hutchison’s opinion

regarding Mindy’s mental state considerable deference. In re Det. of Barnes,

689 N.W.2d 455, 457 (Iowa 2004).

      Based on the history between Meyers and Mindy, together with the

expert   testimony   at   trial   assessing   all   the   surrounding   facts   and

circumstances in this case, we conclude substantial evidence supports the

finding by the district court that the sex acts were performed at a time when

Mindy was unable to consent to sex with him. Meyers did not challenge the

admissibility of the expert testimony, only that it was insufficient to support

a conviction.   Yet, all the facts and circumstances presented at trial,

including the expert testimony, were sufficient for a fact finder to infer the

sex acts were nonconsensual.

      There was evidence that Meyers pursued and engaged in a sexual and

romantic relationship with his high-school-age stepdaughter while she was

in a very vulnerable psychological state. Her vulnerability was not only due

to her crack cocaine addiction, her estrangement from her mother, and her

need for support and shelter, but it was also based on the history of sexual

and physical abuse inflicted by Meyers in the past. In addition to Mindy’s

condition, Meyers was a controlling person and Mindy’s father figure. All the

circumstances together, including the disparity in age between Meyers and

Mindy, the background and history of their relationship, the authority

exercised by Meyers, the circumstances leading up to the establishment of a

romantic relationship, and Dr. Hutchison’s opinion concerning the inability

of Mindy to consent in light of all the circumstances, support a finding that
                                            23

the sex acts engaged in between Meyers and Mindy were “by force or against

the will” of Mindy. 6

       IV. Sufficient Evidence of Lascivious Conduct with a Minor.

       To support the charge of lascivious conduct with a minor, the State

must show (1) Meyers was over eighteen years old; (2) Meyers was in a

position of authority over Mindy; (3) Mindy was under the age of eighteen;

and (4) Meyers forced, persuaded, or coerced Mindy to disrobe or partially

disrobe for the purpose of satisfying the sexual desires of either of them.

Iowa Code § 709.14.          Meyers argues there was insufficient evidence to

establish he forced Mindy to “disrobe or partially disrobe” for the purpose of

satisfying his sexual desires. The State presented evidence of Meyers’ age

and of Mindy’s age as well as evidence that Meyers was Mindy’s father figure

from the time Mindy was six years old and that he was the “controlling

figure” in the home at that time. It also presented Meyers’ March 11 letter

describing Mindy’s body, along with the testimony of witnesses supporting

the existence of a sexual relationship between Mindy and Meyers. For the

same reasons we find substantial evidence exists to show Meyers performed

sex acts against Mindy’s will, we also find the district court did not err in




       6Meyers  argued on appeal that inclusion of psychological factors to negate consent in
the “mental defect or incapacity” category of sexual abuse would render the statute too
broad and presents a serious danger of overcriminalization of sexual relationships viewed
socially unacceptable but not intended to be punished under the statute. While we do not
address the argument as it pertains to the mental defect or incapacity category, we
recognize the same concern has been voiced with regard to an “against the will of” standard
as well. See Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the
Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 1780, 1792 (1992)
(advising against application of a broad definition of lack of consent to avoid “the sweeping
criminalization of sex”); see also Model Penal Code § 213.1 cmt. 4, at 302 (noting an
overemphasis on nonconsent may unintentionally overbroaden the law). While this claim
might have appeal under different facts, it does not under the specific facts and
circumstances of this case. The facts of this case fall within Iowa’s criminal statute
prohibiting sex acts “by force or against the will of the other.”
                                      24

finding sufficient evidence Meyers coerced Mindy to disrobe to satisfy his

sexual desires.

      V. Meyers’ Pro Se Claim.

      Meyers has filed a pro se brief in this case, asserting the district court

erred by failing to rule on a motion to dismiss in this case. Meyers claims

this failure violated his constitutional right to due process.   No motion to

dismiss appears in the record before us on this case. Issues on appeal not

raised in the district court are deemed waived.       Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002). Consequently, we do not address a violation

of Meyers’ constitutional right to due process.

      VI. Conclusion.

      After consideration of all the issues presented for our review, we affirm

the judgment and sentence of the district court and affirm the decision of the

court of appeals.

      DECISION OF COURT OF APPEALS AND DISTRICT COURT

JUDGMENT AFFIRMED.

      All justices concur except Mansfield, J., who takes no part.
