Government of Virgin Islands v. Ayala, Crim. No. 93-0114.
| Decision Date | 06 December 1993 |
| Docket Number | Crim. No. 93-0114. |
| Parties | GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Pedro AYALA, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Hugh P. Mabe, III, Alphonso G. Andrews, J.R., Office of the U.S. Atty., Christiansted, St. Croix, Virgin Islands, for Government.
Maurice M. Cusick, Christiansted, St. Croix, Virgin Islands, for defendant.
Presently before the court is the motion of defendant Pedro Ayala ("Ayala") to dismiss Count II of the information charging child abuse as void for vagueness. For the reasons set forth below, the court is granting defendant's motion.
Ayala, a 21-year old male, allegedly engaged in sexual intercourse with a 12-year old female. The government has charged Ayala with three counts. Count I charges him with aggravated rape, under Title 14, Virgin Islands Code, Section 1700(a)(1).2 Count II charges him with child abuse under Title 14, Virgin Islands Code, Section 505. Count III charges him with unlawful sexual contact under Title 14, Virgin Islands Code, Section 1699(c) and 1708(2).3
Count II, the focus of defendant's challenge, charges that:
On or about June 3, 1993, at St. Croix in the District of the Virgin Islands, PEDRO AYALA did knowingly and recklessly cause a 12-year old female to be placed in a situation where it was reasonably foreseeable that she might suffer mental and emotional injury, by engaging in sexual intercourse with the minor female, in violation of Title 14, Virgin Islands Code, Section 505.
Defendant argues that "requiring a defendant to be placed in the position of having to determine if it is `reasonably foreseeable that the alleged victim might suffer mental and emotional injury'" violates his due process rights under the void-for-vagueness doctrine. Def.Br. at 1.
A statute is void for vagueness when it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Under the void for vagueness doctrine, "a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).
Although the void for vagueness doctrine incorporates two distinct elements, actual notice to citizens and arbitrary enforcement, the two are not accorded equal weight. The arbitrary enforcement element is viewed as the more essential in light of the inherent harms posed by "a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections." Id. at 358, 103 S.Ct. at 1858. "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).
Section 505, the statute under which Ayala is charged, provides in pertinent part that:
Any person ... who knowingly or recklessly causes a child to be placed in a situation where it is reasonably foreseeable that a child may suffer ... mental or emotional injury ... shall be punished by a fine of not less than $500, or by imprisonment of not more than 20 years or both.
V.I.Code Ann. tit. 14, § 505 (Supp.1993).4 "Mental or emotional injury" is defined as "psychological injury or harm which impairs the mental or emotional health or functioning of a child." V.I.Code Ann. tit. 14, § 503(d) (Supp.1993).
Section 505 is unconstitutionally vague in that it fails to delineate the degree of risk, and of injury, sufficient to trigger the imposition of criminal penalties. Compare, e.g., Ark.Code Ann. § 5-27-204 (Michie 1987) (Person who "knowingly engages in conduct creating a substantial risk of serious harm to physical or mental welfare of one known by the actor to be a minor" violates child abuse statute) (emphasis added). By encompassing any degree of risk, and of injury, no matter how de minimis, the statute vests an unacceptable level of discretion in law enforcement. See Connecticut v. Schriver, 207 Conn. 456, 542 A.2d 686, 689 (1988) (); People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977) (); cf. Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10, 18 (S.D.Iowa 1975) ().
Furthermore, the circular definition of "mental or emotional injury"5 compounds rather than minimizes the vagueness of the statute.6 "Impair or harm" is synonymic for "injury." See, e.g., Webster's Third New International Dictionary 1034, 1131 (1981) (defining "harm" as "physical or mental damage;" defining "impair" as to "do harm to"); Black's Law Dictionary 718, 752 (6th ed. 1990) (defining "harm" as "the existence of loss or detriment in fact of any kind to a person resulting from any cause"; defining "impair" as "to weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner"). Thus, the statute again fails to specify the level of risk and injury needed to distinguish criminal from non-criminal conduct. See Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974) ()
In Hoehl, the court was faced with a child abuse statute containing wording similar to Section 505. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). The statute provided that "a person commits child abuse if he knowingly, intentionally, or negligently, and without justifiable excuse, causes or permits a child to be placed in a situation that may endanger the child's life or health." Id. at 485. The court indicated that if the word "may" in the clause "may endanger the child's life or health" were strictly construed according to the dictionary definition as meaning "be in some degree likely," the statute would be unconstitutional on its face, because "virtually any conduct directed toward a child has the possibility, however slim, of endangering a child's health." Id.
Section 505 is a statute which encompasses "virtually any conduct directed toward a child." Almost any act "may" injure a child emotionally or mentally. A parent's divorce, certain religious beliefs and practices, even a harsh word, may "impair" a child's mental or emotional health to some degree. Such a broad sweep, while effective from a law enforcement standpoint, is anathema from a constitutional one.
The Hoehl court, in order to preserve the constitutionality of the statute, rejected the dictionary definition of "may" and fashioned its own definition as meaning a "reasonable probability." Id.
Such an interpretational escape is unavailable in this case.7 The terms "mental or emotional injury," in contrast to the term "physical injury," are inherently abstract and fraught with ambiguity. This is especially true where, like here, a statute does not require that actual mental or emotional injury be shown. In defining the reach of such terms, legislators must elicit public comment and input from experts, and carefully weigh the societal values and concerns involved. Courts, law enforcement, and juries are simply ill-equipped to exercise such quintessential legislative prerogatives. Cf. Schriver, 542 A.2d at 692. Doing so would force those institutions to resolve "basic policy issues on an ad hoc and subjective basis."8 See Grayned v. City of Rockford, 408 U.S. at 108-09, 92 S.Ct. at 2298-99.
Against this backdrop lurks the specter of arbitrary enforcement. Section 505, as written, grants law enforcement an unrestricted license to intervene in the family sphere. The danger of arbitrary enforcement "is especially grave in the highly subjective context of determining an approved mode of child rearing." See Alsager, 406 F.Supp. at 19. Without a definite criminal standard, Section 505 invites arbitrary enforcement.9
is unconstitutionally vague.10
This matter having come before the Court on the motion of defendant Pedro Ayala to dismiss Count II of the Information for vagueness; and
Having considered the submissions of the parties;
For the reasons set forth in the Court's opinion of this date;
IT IS on this 6th day of December, 1993 hereby ORDERED that the motion to dismiss Count II is granted.
1 Senior Judge of the United States District Court for the District of New Jersey, Sitting by Designation.
2 Aggravated rape under Virgin Islands law is a form of statutory rape, i.e., a strict liability offense.
3 On October 12, 1993, the court issued two rulings from the bench. In addition to finding portions of Section 505 unconstitutional, the...
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