Commw. v. Smith

• Decision Date: 11 May 2000
• Docket Number: No. SJC-08091,SJC-08091
• Citation: 431 Mass. 417,728 N.E.2d 272
• Parties: (Mass. 2000) COMMONWEALTH, vs. ROBERT SMITH
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 272

728 N.E.2d 272 (Mass. 2000)

COMMONWEALTH, vs. ROBERT SMITH.

No. SJC-08091

Supreme Judicial Court of Massachusets, Plymouth County

Argued January 3, 2000.

Decided May 11, 2000

[Copyrighted Material Omitted] Jeanne L. Holmes, Assistant District Attorney, for the Commonwealth.

J. Russell Hodgdon for the defendant.

Marshall, C.J., Abrams, Lynch, Greaney, Ireland, & Cowin, JJ.

Lynch, J.

A Plymouth County grand jury indicted the defendant on two charges of incest pursuant to G. L. c. 272, § 17 (incest statute), based on conduct he allegedly engaged in with his daughter.¹ The defendant moved in the Superior Court, pursuant to Mass. R. Crim. P. 13 (c), 378 Mass. 871 (1979), to dismiss the indictments, arguing that, because there was no evidence of penile-vaginal penetration, the grand jury lacked sufficient evidence that he had engaged in "sexual intercourse" with his daughter, as required by the incest statute.² The judge allowed this motion to dismiss, and the Appeals Court affirmed, on the ground asserted by the defendant. See Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999). We granted the Commonwealth's application for further appellate review. We now affirm the judgment of the Superior Court, although on reasoning different from that relied on by the Appeals Court.

1. Facts and prior proceedings.The charges against the defendant arose from allegations made by his daughter. The Commonwealth presented the grand jury with testimony of the daughter, her boy friend, and State Trooper Leonard C. Coppenrath, to whom the daughter had reported the defendant's conduct. The daughter testified, in relevant part, that the defendant had fondled her in an inappropriate manner after she was eleven years old and that, after she reached the age of sixteen years, he put his hands down her pants and digitally penetrated her vagina and also had her perform oral sex on him. Her boy friend testified that the daughter reported to him her father's sexual conduct toward her, in particular the acts of oral sex. The State trooper testified that the defendant, while admitting that he had rubbed sports cream on his daughter's chest, denied having any further sexual contact with her.

In allowing the defendant's motion to dismiss the incest indictments, the judge concluded that the alleged acts of digital penetration and oral intercourse did not satisfy the requirement in G. L. c. 272, § 17, of "sexual intercourse" between consanguineous relations. In the absence of a definition of "sexual intercourse" in the incest statute, the judge relied on this court's construction of this term, and of the related term "unnatural sexual intercourse," in the context of the rape statutes, G. L. c. 265, §§ 22, 22A, 23. In Commonwealth v. Gallant, 373 Mass. 577, 584 (1977), construing these terms within G. L. c. 265, § 22, this court concluded that, "[b]y sexual intercourse, the Legislature undoubtedly intended the traditional common law notion of rape, the penetration of the female sex organ by the male sex organ, with or without emission," whereas "unnatural sexual intercourse," by contrast, refers to "oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body." Because the incest statute explicitly criminalizes "sexual intercourse" but not "unnatural sexual intercourse" between consanguineous relations, the judge concluded that the defendant's alleged conduct with his daughter did not warrant a finding of probable cause that the defendant had committed the statutory crime of incest and, therefore, dismissed the indictments. A panel of the Appeals Court affirmed, for substantially the same reasons. See Commonwealth v. Smith, supra at 823-824.

2. Discussion. In reviewing a judge's pretrial decision to dismiss indictments against a defendant, we must determine whether the evidence supported the judge's factual findings and whether the findings warranted his rulings of law. See Commonwealth v. Aponte, 391 Mass. 494, 504 (1984). The Legislature has not explicitly defined the term "sexual intercourse" in G. L. c. 272, § 17, and in prior cases brought under the statute we have not been required to determine whether this term extends to forms of sexual conduct other than penile-vaginal penetration.³ We conclude that, but for the Legislature's post-1974 amendments of statutes in G. L. c. 272 that contain the term "sexual intercourse" and its addition of the term "unnatural sexual intercourse" to G. L. c. 272, § 3, the term "sexual intercourse" in the incest statute, G. L. c. 272, § 17, could properly be construed to encompass the acts here alleged to have been engaged in by the defendant with his daughter. However, in light of that legislative activity, we are compelled to limit the meaning of "sexual intercourse" in G. L. c. 272, § 17, to penile-vaginal penetration, with or without emission, and to conclude that the incest indictments against the defendant were properly dismissed.

In our view, it is too facile to rely directly, as did the Superior Court judge and the Appeals Court, on the rape statutes, G. L. c. 265, §§ 22, 22A, 23, for the meaning of "sexual intercourse" in the incest statute. When interpreting undefined terms in a statute, it is certainly permissible to draw on the meaning that has settled on the same language in other legislation. See Commonwealth v. Gustafsson, 370 Mass. 181, 187 (1976). However, such an interpretive approach is more properly utilized when the legislation that the court consults for guidance is in pari materia with the statute being construed, that is, when the two statutes relate to the same class of persons or things or share a common purpose. Cf. 2B. Singer, Sutherland Statutory Construction §§ 51.01-51.03 (5th ed. 1992), with §§ 53.03, 53.05. When the two statutes are not so related, this approach is, at best, an uncertain means of discerning the intended meaning of statutory language and should be employed cautiously. See id. at § 53.05. The rape statutes appear in a chapter entitled "Crimes Against the Person," G. L. c. 265, whereas the incest statute appears in a chapter entitled "Crimes Against Chastity, Morality, Decency and Good Order."⁴ G. L. c. 272. Rape is a violent invasion of personal integrity and dignity committed in a sexual manner, an essential element of which is the absence of the victim's consent. See G. L. c. 265, §§ 22, 22A. In the case of rape of a child under the age of sixteen years committed without the use of force or threat, such lack of consent is, nevertheless, conclusively presumed by law. See G. L. c. 265, § 23; Commonwealth v. Dunne, 394 Mass. 10, 19 (1985), citing Commonwealth v. Roosnell, 143 Mass. 32, 36 (1886). By contrast, the crime of incest is committed where persons within a specified "degree[ ] of consanguinity" engage in sexual intercourse; the consensual or nonconsensual character of the conduct is immaterial. See G. L. c. 272, § 17. Cf. Commonwealth v. Domaingue, 397 Mass. 693, 703 (1986). Moreover, in Commonwealth v. Gallant, 373 Mass. 577, 583-585, 587-588 & n.13, 590 n.17 (1977), where "sexual intercourse" in G. L. c. 265, § 22, as appearing in St. 1974, c. 474, § 1, was held to refer to penile-vaginal penetration, this court noted that the Legislature's 1974 amendment of the rape statutes to encompass also "unnatural sexual intercourse" reflected a nation-wide reform effort that explicitly sought to "broaden the scope of the crime" to include forms of sexual intrusion that had escaped prosecution as rape under a narrower definition of intercourse. Id. at 588. Our construction of these terms in Gallant was thus influenced by the history of legislative activity specifically aimed at redefining and modernizing the crime of rape. All of this warrants the conclusion that the rape statutes are not in pari materia with the incest statute and that the meaning attributed to "sexual intercourse" in the context of rape would be inconclusive as to its meaning in the context of incest, absent an indication that the Legislature intended this same meaning to apply to statutes defining and proscribing "crimes against chastity, morality, decency and good order."

In the absence of such an indication, a better interpretive approach would have implemented the following two canons of statutory interpretation: first, "a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated," Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975); and second, "the statutory language itself is the principal source of insight into the legislative purpose." Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, supra, citing Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). Limiting "sexual intercours e" in G. L. c. 272, § 17, to penile-vaginal penetration would be appropriate if the sole purpose of the incest prohibition were the prevention of genetic or biological abnormalities in the offspring of incestuous unions. See, e.g., Commonwealth v. Smith, 46 Mass. App. Ct. 822, 825 n.5 (1999). However, the plain language of the incest statute indicates that its drafters sought to advance purposes different from, and more compelling than, eugenics.⁵ For the statute does not define the crime of incest exclusively in terms of sexual intercourse between consanguineous relations, but also criminalizes the intermarriage of persons so related. See G. L. c. 272, § 17. Moreover, the "[p]ersons...