Martin v. Commonwealth, Record No. 1966-04-4 (VA 9/6/2005)
| Decision Date | 06 September 2005 |
| Docket Number | Record No. 1966-04-4. |
| Parties | JAMES ARCHER MARTIN v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of Stafford County, Joseph E. Spruill, Jr., Judge Designate.
Robert J. Cunningham, Jr. (Whitestone, Brent, Young & Merril, P.C., on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Judith W. Jagdmann, Attorney General, on brief), for appellee.
Present: Judges Elder, Kelsey and McClanahan.
The trial court found James Archer Martin guilty of aggravated sexual battery of an eight-year-old boy in violation of Code § 18.2-67.3(A)(1). Martin appeals, claiming a right to an acquittal as a matter of law because he did not force the boy to engage in the sexual act and, in fact, the boy did so willingly. We disagree. Given the child's age, he could not legally consent and thus constructive force existed as a matter of law.
Martin stipulated to the evidence in the trial court. Martin, a fourteen-year-old boy, admitted asking the victim, an eight-year-old boy, to masturbate him. After Martin demonstrated what he wanted done, the victim manipulated Martin's penis until he ejaculated. No evidence suggested Martin used violence or any form of physical compulsion to overcome the victim's will. The offense took place in February 2003.
On de novo appeal from the juvenile and domestic relations district court, the circuit court convicted Martin of aggravated sexual battery under former Code § 18.2-67.3(A)(1). On appeal to us, Martin admits he caused the eight-year-old boy to perform the requested sexual act. That does not make him guilty of sexual abuse, Martin claims, because he did not force the boy to do it. The sexual encounter, he says, was entirely consensual.
Former Code § 18.2-67.3(A)(1) says nothing about force. In 2003, that statute provided merely that an "accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness" and the "complaining witness is less than thirteen years of age . . . ."1 The very next subsection, A(2), specifically required force or its functional equivalent (threats, intimidation, mental incapacity, or physical helplessness) for sexual abuse of a victim thirteen to fifteen years old. Despite the conspicuous absence of force from A(1) and its equally conspicuous presence in A(2), Martin nonetheless argues that A(1) also required a showing of force. He reaches this conclusion by consulting a definitional statute, former Code § 18.2-67.10(6)(b), which defined "sexual abuse" generally to include cases where the accused "forces the complaining witness" to touch the accused's genitals.
We do not believe the General Assembly intended a general definitional statute to negate a purposefully crafted distinction set out in a specific statute outlining the elements of the offense. If we were to accept that conclusion, we could only do so by violating longstanding principles of statutory construction. As has been often said, seemingly incongruent statutes "capable of coexistence" should be read harmoniously so that each retains meaning and neither is rendered illusory. Seaton v. Commonwealth, 42 Va. App. 739, 758-59, 595 S.E.2d 9, 18-19 (2004) (citation omitted). "And to the extent such harmony cannot be achieved, the more specific statute takes precedence over the more general one." Id.2 Martin's interpretation violates both maxims by rendering the specific legislative distinction between A(1) and A(2) meaningless in this case through the use of a single word in a general definitional provision.
Instead, we believe the general definitional statute, former Code § 18.2-67.10(6)(b), and the specific statute setting forth the elements of Martin's offense, former Code § 18.2-67.3(A)(1), can be read harmoniously — so that neither statute negates the other, and both retain a substantive meaning consistent with established caselaw.
In the context of sexual crimes, when analyzing whether the "element of force" has been shown, "the inquiry is whether the act or acts were effected with or without the victim's consent." Gonzales v. Commonwealth, 45 Va. App. 375, 383, 611 S.E.2d 616, 620 (2005) (en banc) (quoting Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979)). Absent legally recognized consent, "there is evidently, in the wrongful act itself, all the force which the law demands as an element of the crime." Bailey v. Commonwealth, 82 Va. 107, 111 (1886). If no consent exists, therefore, "the use of force is shown by the act of non-consensual [sexual contact] itself." Gonzales, 45 Va. App. at 383, 611 S.E.2d at 620.
Virginia law has historically refused to recognize the consent of a victim under the age of fifteen — treating the child, as a matter of law, to be too emotionally and developmentally immature to engage in consensual sexual activities with another. Under that age, a child "cannot legally consent to the act, and constructive force is present, even though she does in fact consent." McBride v. Commonwealth, 44 Va. App. 526, 532, 605 S.E.2d 773, 775 (2004) (emphasis added) (quoting Buzzard v. Commonwealth, 134 Va. 641, 651, 114 S.E. 664, 666-67 (1922)). This constructive force concept has been a "fundamental tenet of Virginia law" governing sexual offenses. Id. As the Virginia Supreme Court has explained:
It is true that force, actual or constructive, is essential to the crime of rape, and that there is no force where the female is legally capable of giving her consent, and does so. But in Virginia the age of consent is fifteen years. Under that age she cannot legally consent to the act, and constructive force is present, even though she does in fact consent.
Stump v. Commonwealth, 137 Va. 804, 807, 119 S.E. 72, 73 (1923) (emphasis added); see also Parsons v. Parker, 160 Va. 810, 814, 170 S.E. 1, 2 (1933). See generally Davis v. Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167, 171 (1947) ().
The legislature enacted the general definitional statute, former Code § 18.2-67.10(6)(b), against the backdrop of an unbroken line of judicial precedents recognizing the doctrine of constructive force in prosecutions of sexual offenses against minors. "We assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law." Dodson v. Potomac Mack Sales & Serv., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); see also Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001). Nothing in former Code § 18.2-67.10(6)(b) — which defined "sexual abuse" generally — suggested the legislature intended to discard the constructive force doctrine or to limit the concept of force only to displays of actual violence, threats, or other forms of physical compulsion. The word "force" in this general definition statute, therefore, necessarily retained the attributes of both actual and constructive force.
Only with that background can former Code § 18.2-67.3(A)(1) be understood. To the extent force is relevant at all to a subsection A(1) conviction — an assumption we make arguendo — it migrated into A(1) only through the general definition of "sexual abuse" found in former Code § 18.2-67.10(6)(b). And to the degree the general definition was imported into former Code § 18.2-67.3(A)(1) — which, unlike A(2), makes no mention of force — the imported definition carried with it principles of constructive force.
Martin argues our understanding fails to defer to the carefully chosen words of the statute. We think just the opposite is true. Martin's interpretation wholly obliterates the distinction between subsections A(1) and A(2), rendering it without any conceivable meaning in this case. If force means only actual force, then the absence of force as an element of the A(1) crime and its presence as an element of the A(2) crime would make no sense. On the other hand, it was entirely sensible for the legislature to employ the concept of constructive force in A(1) for victims younger than thirteen, while requiring a showing of actual force or its functional equivalent for a violation of A(2) for victims between thirteen and fifteen. Cf. Johnson v. Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988). No other interpretation preserves the legislative distinction drawn between former subsections A(1) and A(2).
Martin also contends that our reasoning defies the canon requiring that ambiguous penal statutes be strictly construed. We find this protest circular, because the alleged ambiguity arises only if we were to accept his misinterpretation of the statute. Quoting Justice Story, the Virginia Supreme Court has explained:
Speaking of penal statutes, Mr. Justice Story, in U.S. v. Winn, 3 Sumner 209, says:
Northrop & Wickham v. Richmond, 105 Va. 335, 339-40, 53 S.E. 962, 963 (1906).3 Put another way, the canon of strict construction of penal statutes does not "require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language," United States v. Brown, 333 U.S. 18, 25-26 (1948) — which is exactly what Martin's discordant interpretation does.
We reject Martin's argument that the Commonwealth did not prove its case against...
To continue reading
Request your trial