McBrayer v. State, 55204

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before PATTERSON; ROBERTSON; PATTERSON; WALKER, P.J., and HAWKINS; WALKER; HAWKINS; HAWKINS
• Citation: 467 So.2d 647
• Parties: Malcolm McBRAYER v. STATE of Mississippi.
• Docket Number: No. 55204,55204
• Decision Date: 16 January 1985

Page 647

467 So.2d 647 Malcolm McBRAYER
v.
STATE of Mississippi. No. 55204. Supreme Court of Mississippi. Jan. 16, 1985.
As Modified on Denial of Rehearing May 8, 1985.

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.

ROBERTSON, Justice, for the Court:

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

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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...