Douglas v. State, 59084.

• Decision Date: 01 May 2014
• Docket Number: No. 59084.,59084.
• Parties: Delbert Roy DOUGLAS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

327 P.3d 492

130 Nev. Adv. Op. 31

Delbert Roy DOUGLAS, Appellant,

v.The STATE of Nevada, Respondent.

No. 59084.

Supreme Court of Nevada.

May 1, 2014.

Philip J. Kohn, Public Defender, and P. David Westbrook, Deputy Public Defender, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Stephen B. Wolfson, District Attorney, Jonathan E. VanBoskerck, Chief Deputy District Attorney, and Ryan J. MacDonald, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:

Delbert Roy Douglas fathered two children with his daughter, whom he forced to have sex with him when she was 12 and, again, after she turned 18. He was charged with and convicted of sexual assault and incest for both rapes. On appeal, Douglas challenges his incest convictions. He argues that incest requires mutual consent while sexual assault is, by definition, nonconsensual, making the two crimes mutually exclusive. We hold, as the majority of courts have held, that incest condemns sex between close relatives without regard to whether the intercourse was consensual.

I.

A.

Our review is de novo, State v. Lucero, 127 Nev. ––––, ––––, 249 P.3d 1226, 1228 (2011), and begins with the text of Nevada's incest statute:

Persons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void who intermarry with each other or who commit fornication or adultery with each other shall be punished for a category A felony by imprisonment in the state prison....

NRS 201.180.

Obviously, NRS 201.180 omits any express mutual consent requirement. But Douglas parses the statute as punishing “ [p]ersons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void ... who commit fornication ... with each other ” and infers a mutual consent requirement from its key terms: persons, commit, fornication, and with each other. “Unlike sexual assault,” Douglas argues, “incest is not a crime perpetrated by one person against another; it is the joint operation of two or more prohibited persons who, together, ‘commit fornication.’ ” And “fornication,” Douglas continues, means “ ‘consensual sexual intercourse between two persons not married to each other.’ ” Id. at 8 & n. 2 (quoting Merriam–Webster's Online Dictionary, http:// www. merriam- webster. com/ dictionary/ fornication (last visited, July 20, 2012)).

Nevada's prohibition on incest dates back to 1861. 1861 Laws of the Territory of Nevada, ch. 28, § 129, at 83. Though the penalty has changed over time, see 1979 Nev. Stat., ch. 655, § 43, at 1429; 1995 Nev. Stat., ch. 443, § 83, at 1198; 2005 Nev. Stat., ch. 507, § 31, at 2877, the words used to describe incest's elements have not varied.¹ In general,“[w]ords must be given the meaning they had when the text was adopted.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012). So, we look to references from the late 19th century to glean the meaning of NRS 201.180.

To Douglas, the phrase “with each other” unambiguously requires mutual consent. But 19th century scholarly references primarily defined with as in the “presence” or “company of.” Rev. James Stormonth, Dictionary of the English Language 733 (1877); see also William Dwight Whitney, The Century Dictionary 6952 (1895) (defining with as “in company with”). Thus, “with each other” requires only that the charged party commit the act of incest in the company of the person with whom he or she intermarries or fornicates. The phrase is indeed unambiguous,² but it does not demand the consent of both parties to support a conviction.

Douglas also argues that the phrase “persons ... who commit” requires mutual consent. We disagree. Commit is defined as “to do or effect,” Stormonth, supra, at 99, or “to perpetrate.” Whitney, supra, at 1131. Thus, the phrase “persons ... who commit” sanctions punishment for those persons who voluntarily carry the incestuous act into execution, and prevents the prosecution of those who do not. This requirement shields rape victims and certain minors from prosecution for incest, but it does not demand mutual consent.

Nor do we agree that fornication signifies consensual sexual intercourse. Stormonth defines fornication as sexual intercourse “between unmarried persons.” Stormonth, supra, at 215. Whitney similarly defines it as “illicit sexual intercourse on the part of an unmarried person with a person of the opposite sex, whether married or unmarried.” Whitney, supra, at 2340. These early definitions focus on marital status of the participants, not consent.

Though helpful, historical dictionaries are not “perfect repositories.” Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 Harv. L.Rev. 1437, 1445, 1447 (1994). Douglas supports his reading of NRS 201.180 with Merriam–Webster's Online Dictionary, supra, which defines fornication as “consensual sexual intercourse.” But other modern dictionaries do not include “consensual” in their definitions of fornication. See, e.g., Webster's Seventh New Collegiate Dictionary 329 (1969). And Douglas's reference to the online dictionary provides no prefatory material, or information as to editor, year of publication, or depth, making it impossible to weigh his definition's relative credibility.

A more reliable modern resource is Black's Law Dictionary. See Rugamas v. Eighth Judicial Dist. Court, 129 Nev. ––––, ––––, 305 P.3d 887, 893 (2013). The definition of fornication offered by Black's is “voluntary sexual intercourse with an unmarried woman” or “[v]oluntary sexual intercourse between two unmarried persons.” Black's Law Dictionary 679 (8th ed.2009). These definitions mirror those provided by Stormonth and Whitney, except for Black's inclusion of the word voluntary. See Stormonth, supra, at 215; Whitney, supra, at 2340.

One definition of voluntary is “not impelled.” Black's Law Dictionary 1605 (8th ed.2009). Under that definition, fornication suggests mutual consent. But voluntary may also mean “by ... intention.” Id. Under this definition, a conviction for incestuous fornication requires an intentional act by the accused, like all crimes in Nevada. NRS 193.190 (“In every crime or public offense there must exist a union, or joint operation of act and intention....”). But it would not demand mutual consent.

B.

The majority of courts that have considered statutes like NRS 201.180 have refused to infer a mutual consent requirement. Most states passed statutes criminalizing incest by the late 1800s. Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes § 728, at 442 (2d ed.1883). Although “[t]hese statutes [were] not precisely the same in all states,” they were “substantially so.” William Lawrence Clark & William Lawrence Marshall, A Treatise on the Law of Crimes § 460, at 704 (2d ed.1905). For the most part, these statutes were worded like NRS 201.180: They “punish[ed] any persons who, being within the degrees of consanguinity ... within which marriages are declared to be incestuous and void, intermarry or commit adultery or fornication with each other.” Id. By 1905, “in most states,” it was the settled law that “the consent of both parties is not a necessary element of the offense” of incest. Id. at 705; Recent Case, Incest—Elements of Offense—Relation of Parties, 22 Yale L.J. 625 (1913) (“According to the weight of authority assent of both parties is not necessary to constitute the crime of incest.”); L.S. Tellier, Annotation, Consent as element of incest, 36 A.L.R.2d 1299 (1954) (“While [incest] statutes generally forbid persons within specified degrees of consanguinity or affinity to have sexual intercourse ‘with each other’ or ‘together,’ in most jurisdictions the courts do not regard the words ‘with each other’ or ‘together,’ as requiring a mutual consent to the wrongful act in order that incest may be committed, the purpose of the statutes being to deter the commission of fornication or adultery with one within the prohibited degrees of relationship, and to punish the accused regardless of whether or not the other party consented to the act or whether or not force was used to overcome the other's resistance.”).

Nevada appears to have copied its incest statute from California. Compare 1861 Laws of the Territory of Nevada, ch. 28, § 129, at 83, reprinted supra note 1, with 1850 Cal. Stat. 244 (“Persons being within the degrees of consanguinity, within which marriages are declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit fornication or adultery with each other, shall, on conviction, be punished by imprisonment in the State Prison....”); see also 5 Nev. Compiled Laws § 10140 (1929) (citing Cal.Penal Code § 285, where 1850 Cal. Stat. 244 was eventually codified, as a resource for Nevada's incest statute). In People v. Stratton, 141 Cal. 604, 75 P. 166, 167 (1904), superseded by statute on other grounds as stated in People v. Tobias, 25 Cal.4th 327, 106 Cal.Rptr.2d 80, 21 P.3d 758, 766 (2001), the California Supreme Court considered and rejected the text-based mutual-consent arguments Douglas reprises here. In its view, such “reasoning does not commend itself” because it makes “mutuality of agreement and joint consent ... the essence of the crime” in an improper judicial revision of the “express declaration of the [statutory] law.” Id. Adding a mutual consent requirement to the statute disserves its purpose:

The gravamen of the crime of incest, as of rape, is the unlawful carnal knowledge. In rape it is unlawful because accomplished by unlawful means. In incest it is unlawful, without regard to the means, because of consanguinity or affinity. Where both the circumstances of force and consanguinity are present, the object of the statute being to prohibit by punishment such sexual intercourse, it is not less incest because the element of rape is added, and it...