McBrayer v. State, 55204
| Decision Date | 16 January 1985 |
| Docket Number | No. 55204,55204 |
| Citation | 467 So.2d 647 |
| Parties | Malcolm McBRAYER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
J. Max Kilpatrick, Philadelphia, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by John Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
On an unspecified date in November of 1982, and apparently on at least two other occasions, Malcolm McBrayer, age 46, and S.G., a 13 year old female, engaged in wholly consensual sexual intercourse. S.G. said that she wanted to marry Malcolm and to that end tried to run away with him to Oklahoma, only to be stopped by police at the bus station in Dekalb, Mississippi.
The lawfulness vel non of the conduct of Malcolm McBrayer has been addressed directly by the Mississippi Legislature with the enactment of a law proscribing what has come to be known as statutory rape. Miss.Code Ann. Sec. 97-5-21 (Supp.1984). That statute makes criminal the seduction of a child under the age of 18, provided the child is "of previously chaste character". Consent is not a defense.
The problem here is that Malcolm McBrayer has been prosecuted under a statute proscribing qualitatively different conduct; child fondling. That statute makes unlawful the fondling of a child under 14 by any person over 18 "for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, ...." Nothing in the child fondling statute requires that the victim have been of previously chaste character. McBrayer has been convicted under that statute and committed to the custody of the Mississippi Department of Corrections for a term of ten years the maximum. Miss.Code Ann. Sec. 97-5-23 (Supp.1984).
The problem becomes acute when we bear in mind that in November of 1982 S.G. was not "of previously chaste character". The record reflects that she had been intimate with at least two other men prior to that time.
In fairness this case must be understood in the context of the ongoing romantic relationship between Malcolm and S.G. That relationship had been accented by consensual sexual intimacies on at least three occasions. The only thing that kept S.G. from running away to marry Malcolm in another state was her last minute detention at the Dekalb bus station.
Without doubt, some "fondling" of S.G. by Malcolm did occur on any number of occasions. Some of it occurred on the night in question in the presence of S.G.'s mother without serious protest. Only when Malcolm and S.G. brought up the subject of their possibly getting married did S.G.'s mother ask Malcolm to leave S.G. alone. Malcolm left but soon returned at S.G.'s invitation.
In the context of the ongoing relationship between Malcolm and S.G., it is fair to say that such fondling as did occur on that night was obviously a preliminary to sexual intercourse which occurred in S.G.'s home while her younger sister was in the next bed, which in turn did lead to protest from S.G.'s mother when she discovered S.G. and Malcolm asleep together at approximately 6:00 A.M. the next morning.
We have here one enactment of the legislature the core concern of which is prescribing and declaring the legality vel non of sexual relationships between adults and teenagers. Miss.Code Ann. 97-5-21 (Supp.1984). We have another statute which must be strained or given an (obviously unintended) literalistic reading to fit this case. Miss.Code Ann. 97-5-23 (Supp.1984). Concern with the sort of activity involved here is at best at the penumbra of the child fondling statute. Where faced with such a situation, absent an express legislative declaration that the penumbral statute was intended to invade and modify the clear policy determinations of the core statute, we will construe the two in pari materia so that the penumbral statute does no violence to the core statute.
To read the penumbral statute--the child fondling statute--as the State would have us do would lead to absurd results. Under that reading the fondling statute would totally subsume the statutory rape statute, at least in the case of victims under 14 years of age, for the conduct contemplated by the statutory rape statute will always involve a "touching, handling and rubbing" within the literal meaning of the fondling statute. The State calls to our attention nothing which suggests that the Legislature has intended to so repeal the statutory rape statute.
Under the theory offered by the State, sexual intercourse with a child under the age of 14, not of previously chaste character, is no crime, while the foreplay leading to that intercourse can lead to a ten year prison term. We will not impute to the Legislature the intention to achieve such illogical and arbitrary results absent a more express declaration than we have been given.
We hold, therefore, that this case is controlled by our law proscribing statutory rape. Miss.Code Ann. 97-5-21 (Supp.1984). Under that enactment Malcolm McBrayer has committed no crime for S.G. was not of previously chaste character. See, State v. Brammer, 304 N.W.2d 111, 113-114 (S.D.1981).
We state the obvious. Forty-six year old men have no business engaging in sexual relationships with thirteen year old girls in any context. This is so from the vantage point of religious ethics, moral psychology, prevailing societal mores or common sense. The standards derived from these sources, no matter how widespread or strongly held, inform our decision only insofar as they have been incorporated into the positive law of the state. For in this state it is the Legislature which has the exclusive authority to promulgate general rules and thereby designate those courses of conduct which shall be unlawful, and to prescribe punishments therefor, subject only to constitutional restrictions. Upshaw v. State, 350 So.2d 1358, 1360 (Miss.1977); Howell v. State, 300 So.2d 774, 780-781 (Miss.1974); Gabriel v. Brame, 200 Miss. 767, 773, 28 So.2d 581, 582 (1947).
Today's decision does not fossilize the law. Our reading of the statutes has been faithful and, we trust, sensible. It is subject to prospective legislative alteration, and we should be as obligated to enforce any such altered law. Without doubt, the Legislature would have the authority to make unlawful the conduct at issue here. Today we hold only that it has not yet done so.
REVERSED AND RENDERED.
...
To continue reading
Request your trial
-
Thornhill v. System Fuels, Inc.
...to be answered. 21 Second, there is no sharp or distinct line of demarcation between that core and penumbra. Compare McBrayer v. State, 467 So.2d 647, 648 (Miss.1985). The reality is a continuum pointing toward clarity at one pole and ambiguity and indeterminacy at the other. Here we have a......
-
Hailey v. State
...at 1108. The state argues that this Court held child fondling was indeed a lesser-included offense of statutory rape in McBrayer v. State, 467 So.2d 647 (Miss.1985). In McBrayer the defendant was a 46-year-old man who had intercourse with a 13-year-old female. McBrayer was not indicted for ......
-
Winters v. State
...entirety a legislative question ..." Gabriel v. Brame, Sheriff, 200 Miss. 767, 773, 28 So.2d 581, 582 (1947). See also McBrayer v. State, 467 So.2d 647, 648 (Miss.1985). As Curtis Winters was not classified in a manner that burdened his rights within the criminal justice system, there is no......
-
Henderson v. State
...sole authority to create and define crimes." Id. (citing Winters v. State , 473 So. 2d 452, 456 (Miss. 1985) ; McBrayer v. State , 467 So. 2d 647, 648 (Miss. 1985) ; Howell v. State , 300 So. 2d 774, 780-81 (Miss. 1974) ). And when our Court decided James , our legislature had without quest......
-
Turning girls into women: re-evaluating modern statutory rape law.
...at 483-84. (142) See eg., Pawson v. Texas, No. 367-90,1993 Tex. Crim. App. LEXIS 163 (Ct. of Crim. App. of Tex. 1993); McBrayer v. State, 467 So. 2d 647, 648 Miss. 1985) reh'g denied. A somewhat more candid, but similar approach was taken in a recent British case. Judge Ian Starforth Hill r......