Commonwealth v. Rahim

• Decision Date: 01 December 2003
• Citation: 441 Mass. 273,805 NE 2d 13
• Parties: COMMONWEALTH v. DAWUD RAHIM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

441 Mass. 273

805 NE 2d 13

COMMONWEALTH v. DAWUD RAHIM.

Supreme Judicial Court of Massachusetts, Suffolk.

December 1, 2003.

March 22, 2004.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Nancy L. Hathaway, Assistant District Attorney, for the Commonwealth.

Robert J. Zanello for the defendant.

CORDY, J.

A grand jury indicted the defendant on numerous charges, including rape and abuse of a child under the age of sixteen years, in connection with the alleged sexual abuse of his stepdaughter. Among those charges are six indictments charging incest in violation of G. L. c. 272, § 17 (incest statute).¹ The defendant moved to dismiss the incest charges, arguing that, because he was neither the natural nor adoptive father of his stepdaughter, and had no "blood-kin" relationship with her, the necessary element of consanguinity under the incest statute was absent. A Superior Court judge, pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), reported the following question to the Appeals Court:

"Are G. L. c. 272, § 17, and G. L. c. 207, § 1 [the marriage prohibition statute], to be read together for all purposes, and especially with regard to determining the `degree of consanguinity' for determination of culpability with regard to the crime of incest? See Commonwealth v. Smith, 431 Mass. 417, 422 (2000)."

The proceedings were stayed. We allowed the Commonwealth's application for direct appellate review. We conclude that "consanguinity" is a necessary element of the crime of incest, and that the incest statute makes criminal only relationships between persons related by blood or adoption,² not other relationships prohibited by the marriage statute, G. L. c. 207, §§ 1 and 2.

1. The plain language of § 17. "[T]he primary source of insight into the intent of the Legislature is the language of the statute." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). "Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words." Gurley v. Commonwealth, 363 Mass. 595, 598 (1973). Accord, e.g., ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 603 (2000); Weitzel v. Travelers Ins. Cos., 417 Mass. 149, 153 (1994); Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 537 (1992). In particular, absent clear indication to the contrary, statutory language is to be given its "ordinary lexical meaning." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Randall's Case, 331 Mass. 383, 385 (1954).

Section 17 criminalizes sexual intercourse between "[p]ersons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void." The relationships in which marriages are prohibited or declared by law to be incestuous are listed in the marriage statute. Some of the prohibited relationships are relationships by blood,³ while others are relationships by marriage.⁴

The meaning of the term "consanguinity" is uncontroverted: it is defined as a "relationship by blood." 2 C. Torcia, Wharton's Criminal Law § 242 (15th ed. 1994). See 3 Oxford English Dictionary 753 (2d ed. 1989) ("condition of being of the same blood; relationship by descent from a common ancestor; blood-relationship [Opposed to affinity, i.e., relationship by marriage]"); Black's Law Dictionary 299 (7th ed. 1999) ("relationship of persons of the same blood or origin"). The meaning of "consanguinity" is distinguished from "affinity:" consanguinity is a blood relationship, while affinity is a nonblood relationship acquired through marriage. See 3 Oxford English Dictionary, supra.⁵

There can be no doubt that the Legislature is and has been fully acquainted with the difference between relationships defined by consanguinity and those defined by affinity. The term "consanguinity" appears throughout the General Laws. In almost every context, the Legislature uses "consanguinity" in conjunction with "affinity," making it readily apparent that the Legislature views the terms as distinct and mutually exclusive. See G. L. c. 274, § 4 (providing defense to prosecution for accessory after fact for defendant who is "by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender"); G. L. c. 19D, § 1 (defining assisted living residence as location that, among other things, provides assistance to "three or more adult residents who are not related by consanguinity or affinity to their care provider"); G. L. c. 40D, § 1 (u) (defining "[c]ontinuing [c]are [f]acility," for purpose of urban development, as "facility at which there is furnished to individuals, other than an individual related by consanguinity or affinity to the person furnishing such care [enumerated services]"); G. L. c. 55, § 18 (h) (15) (ii) (permitting candidate for public office to dispose of residual campaign funds by donation to charitable organization or scholarship fund, provided that neither candidate nor any official of candidate's political committee "be related by consanguinity or affinity to any trustee, officer, principal or beneficiary of said entity"); G. L. c. 93, § 76 (a) (defining "[c]ontinuing care" for purpose of determining whether entity is nursing home as "furnishing to an individual, other than an individual related by consanguinity or affinity to the person furnishing such care, of [enumerated services]"); G. L. c. 268B, § 5 (g) (3) (permitting exception to rule that high-level public officials must disclose names of their creditors "if the creditor is a relative of the reporting person within the third degree of consanguinity or affinity").

In other contexts, the Legislature uses "consanguinity" without "affinity," but nonetheless includes language that specifically refers to relationships by marriage separately. See, e.g., G. L. c. 3, § 43 (requiring executive and legislative agents to submit statements of expenditures, "except that the executive or legislative agent shall not be required to report such expenditures . . . made for or on behalf of . . . a relative within the third degree of consanguinity of the executive or legislative agent or of his spouse or the spouse of any such relative . . . an executive or legislative agent shall not be prohibited from offering or giving to a public official or public employee who is a member of his immediate family or a relative within the third degree of consanguinity or of such agent's spouse or the spouse of any such relative any such gift or meal, beverage or other item to be consumed"); G. L. c. 268B, § 1 (g) (excluding from definition of "gift" in context of financial disclosures by public employees gifts received from "relative within the third degree of consanguinity of the reporting person or of the reporting person's spouse or from the spouse of any such relative").⁶ In sum, in every other statute, the Legislature supplements its use of "consanguinity" with other language encompassing relationships by marriage, and plainly understands "consanguinity" as relationship by blood alone.

By its plain language, therefore, G. L. c. 272, § 17, selects for criminal punishment those relationships listed in the marriage statute, that are relationships of consanguinity (blood), leaving out by its silence relationships of affinity (marriage). It is the limiting language of § 17 itself — "within degrees of consanguinity" — that defines and limits the set of G. L. c. 207 relationships to which § 17 applies.

To interpret § 17 to include both relationships by consanguinity and by affinity would give no meaning to the phrase "within degrees of consanguinity." See Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ("None of the words of a statute is to be regarded as superfluous . . ."). Had the Legislature intended § 17 to criminalize marriage or sexual conduct within all of the relationships listed in §§ 1 and 2, it could easily have avoided the term "consanguinity" (i.e., "[p]ersons between whom marriages would be declared by law to be incestuous and void . . ."), or it could have used the phrase "consanguinity or affinity" that it has employed in other contexts. The Legislature's choice to include only "consanguinity" cannot be disregarded.

While a court must normally follow the plain language of a statute, it need not adhere strictly to the statutory words if to do so would lead to an absurd result or contravene the clear intent of the Legislature. See Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79, 82 (1999). Far from creating an "absurd" result, interpreting the Massachusetts incest statute in accord with the plain meaning of its words would place Massachusetts in the mainstream of the law nationally, and there is no basis from which to conclude that this would contravene the clear intent of the Legislature.

Of the forty-nine States other than Massachusetts, twenty do not punish any form of affinal incest.⁷ Additionally, seven states punish affinal incest only if the victim is a child or if the sexual contact was nonconsensual.⁸ Massachusetts is therefore not alone in providing no criminal punishment for consensual adult sexual contact within affinal relationships.⁹ In addition, the Massachusetts statute would by no means be anomalous in barring more classes of relationships from civil marriage than it punishes under its criminal incest statute. It is common for other jurisdictions to have criminal incest provisions that are less restrictive than their counterpart civil marriage restrictions.¹⁰

In addition, the criminalization of affinity relationships as incestuous is explicitly rejected by the Model Penal Code.¹¹ The Code criminalizes marriage, cohabitation, or sexual intercourse with "an ancestor or descendant, a brother or sister of the whole or half blood [or an uncle, aunt, nephew or niece of the whole blood]," Model Penal Code and Commentaries § 230.2 (1980),¹² and it adds, "The...