In re GT

• Decision Date: 19 May 2000
• Docket Number: No. 96-610.,96-610.
• Citation: 758 A.2d 301
• Court: Vermont Supreme Court
• Parties: In re G.T., Juvenile.

758 A.2d 301

In re G.T., Juvenile.

No. 96-610.

Supreme Court of Vermont.

May 19, 2000.

Robert M. Fisher, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

PRESENT: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

DOOLEY, J.

G.T. appeals from a family court order adjudicating him to be a delinquent child because he is guilty of statutory rape, that is, he engaged in a sexual act with a person under the age of sixteen years, in violation of 13 V.S.A. § 3252(a)(3). At the time of the alleged offense, G.T. was fourteen years of age. He contends that, as a person within the protection of the statutory rape statute, he cannot be charged with violating the statute. We agree and reverse.

The trial court's findings are not contested on appeal. G.T. lived across the street from M.N., a twelve-year-old girl. The two had been friends, but had never had sexual contact with each other prior to the incident in question. One night in October 1995, while G.T. and M.N. were watching a television movie in M.N.'s house, G.T. began kissing M.N. on the mouth. G.T. then pulled M.N.'s legs out straight, pulled her shorts down, pulled his pants down, and got on top of her. He continued kissing her with his hands on her shoulders. M.N., who had never previously had intercourse, felt what she believed was G.T.'s penis in her vagina. G.T. asked if it hurt, but did not stop when M.N. said it hurt. Although she was not afraid of him, M.N. was not sure what G.T. would have done if she had pushed him off of her.

G.T.'s actions were interrupted when M.N.'s mother and boyfriend unexpectedly returned to the house. They saw G.T. scramble up off M.N., but did not observe sexual contact. They ordered G.T. out of the house. M.N. began crying and ran upstairs. She revealed to her mother what had occurred.

On these facts, the State alleged that G.T. had committed statutory rape and, therefore, had engaged in a delinquent act. Based upon the above facts, the family court adjudicated G.T. a delinquent child, and this appeal followed.

Some context is necessary to frame the issue before us. A "delinquent child" is a child between the ages of ten and sixteen who has committed a delinquent act. See 33 V.S.A. § 5502(a)(1), (4). A "delinquent act" is defined, in relevant part, as "an act designated a crime under the laws of this state." Id. § 5502(a)(3). The question we must address is whether the family court properly found that G.T. committed a crime, specifically the crime of statutory rape.

The crime of statutory rape is defined in 13 V.S.A. § 3252(a)(3) as follows:

(a) A person who engages in a sexual act with another person and

. . . .

(3) The other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual;

. . . .

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both.

G.T. argues that the juxtaposition of the word "person" in the two parts of the statute shows that the Legislature intended that the perpetrator be a person of sixteen years of age or older. Although G.T. recognizes that the plain meaning of the term might not contain that limitation, he argues that the context does require such a limitation.

G.T. also stresses that we have held that statutory rape is a strict liability offense, see State v. Searles, 159 Vt. 525, 528-29, 621 A.2d 1281, 1283 (1993), for which the only elements are the age of the "victim" and the presence of a sexual act. See State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). Thus, under the State's theory, both G.T. and M.N. have necessarily committed the crime, and all consensual sexual activity between teenagers is a felony for both participants. Given the prevalence of such activity, see Vermont Dep't of Health, Vermont Youth Risk Behavior Survey 53-54 (1997) (among students in the eleventh grade, the year in which they generally turn sixteen, fifty-six percent of males and fifty percent of females report having had sexual intercourse)¹ and the potential sentence of twenty years in jail,² G.T. argues that such a construction creates absurd, irrational or unjust results.

As G.T. emphasizes, we faced a similar statutory construction determination in In re P.M., 156 Vt. 303, 592 A.2d 862 (1991), a delinquency proceeding in which the male juvenile, who was almost fifteen years old, engaged in inappropriate sexual activity with a young girl who was almost nine years old. In P.M., the juvenile was charged with lewd and lascivious conduct with a child under sixteen years of age, in violation of 13 V.S.A. § 2602, and argued that the perpetrator could not also be a child under sixteen years if the sexual activity was consensual. As in this case, the statute was silent on the age of the perpetrator. Similar to this case, the juvenile argued that it was absurd to believe that the Legislature intended to make teenage petting a felony.

Although we rejected the juvenile's argument in P.M., we found that "age differential is an important factor" in determining whether the juvenile engaged in a delinquent act because "common-sense community standards" must control what is lewd and lascivious conduct. See id. at 308, 592 A.2d at 864. We concluded:

Under the facts of this case, considering the age disparity of the participants, § 2602 is sufficiently certain to inform a person of reasonable intelligence that the conduct engaged in by P.M. is proscribed.

Id.

G.T. argues that if we took a similar approach here we would reject prosecution under § 3252(a)(3) because the age differential is much narrower than in P.M., and the State can charge G.T. under § 3252(a)(1), which criminalizes nonconsensual or coerced, compelled participation in a sexual act.

Although P.M. is helpful, we do not find it controlling. In P.M., the issue was whether the conduct of the juvenile met the broad and general standard of "lewd and lascivious conduct," and this Court defined what factors were relevant to that determination. Here the standard, if it applies, is narrow and specific. See In re John C., 20 Conn.App. 694, 569 A.2d 1154, 1156 (1990) (criminal statute on impairing the morals of children covered "any person" and, therefore, a minor defendant); In re J.D.G., 498 S.W.2d 786, 789 (Mo. 1973) (rape statute covering "every person" who has intercourse with a female child under the age of sixteen years applies to boy under sixteen). Nevertheless, we concluded that the statute involved in that case, § 2602, "concerns situations where a child is sexually exploited by another person." We believe that § 3252(a)(3) also concerns those situations. Although P.M. is not controlling, we find three other reasons to follow its approach and question the apparent plain meaning of § 3252(a)(3) in this context. The first is that the Legislature has taken other actions which appear inconsistent with the plain meaning of § 3252(a)(3). Similar inconsistencies form the basis for the decision in Planned Parenthood Affiliates v. Van de Kamp, 181 Cal.App.3d 245, 226 Cal.Rptr. 361 (1986), a case discussed at length in P.M.

In Van de Kamp, reproductive health care providers sued the California attorney general to overturn his ruling requiring health care providers to report to law enforcement, under the California child abuse reporting law, the names of children under fourteen years of age who they believed had engaged in voluntary, consensual sexual activity with another minor of similar age. The attorney general had ruled that such reporting was required because California law included within the crime of sexual abuse lewd and lascivious conduct upon or with the body of a minor under fourteen years of age and did not require that the perpetrator be fourteen years of age or older. In essence, the attorney general had ruled that every sexually active child under fourteen years of age was a child abuse victim, perpetrator or both, and every medical care provider who learned of this activity in the course of extending medical care was required to report it to law enforcement authorities for investigation of prosecution. The failure of a medical care provider to report, when required by the law, is a crime in California.

The court in Van de Kamp agreed with the providers' contention that minors would not seek reproduction-related health care if no confidentiality requirements applied and their circumstances were automatically reported for a criminal investigation. Accordingly, it held that the legislature could not have intended that the providers report as child abuse all voluntary sexual activity of minors under fourteen years. It reached that conclusion in part by holding that the underlying criminal statute does not apply to sexual activity between partners who are both under the age of fourteen. See id. at 376-77. Contrary to the characterization in the dissent, this holding is not dicta.

Although the context of this decision is different, the exact conflict that underlies the Van de Kamp decision is present in Vermont. A "child who is sexually abused. . . by any person" is an "abused or neglected child." 33 V.S.A. § 4912(2). Rape of a child is sexual abuse. See id. § 4912(8).³ If any health care provider; school teacher, librarian, principal, or guidance counselor; mental health professional; day care worker; social worker; police or probation officer; or camp owner, administrator or counselor, among others, has reason to believe a child has been abused, that person must report that fact to the Department of Social and Rehabilitation Services (SRS) within twenty-four hours. See id. § 4913(a). Failure to make such a report is a misdemeanor, subject to a fine of not more than $500. See id. § 4913(e).

The commissioner of SRS is required to commence an investigation within 72...