P.M., In re

Decision Date29 March 1991
Docket NumberNo. 88-380,88-380
Citation592 A.2d 862,156 Vt. 303
CourtVermont Supreme Court
Parties, 18 A.L.R.5th 1084 In re P.M., Juvenile.

Jane Woodruff, Orleans County State's Atty., Newport, and Gary S. Kessler, Resource Atty., and Pamela Hall Johnson, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.


GIBSON, Justice.

P.M. appeals from a judgment of the district court, sitting as a juvenile court, finding him guilty of committing a delinquent act, engaging in lewd and lascivious conduct with a child. We affirm.


The findings of the court are not contested on appeal. P.M., who was nearly fifteen years old at the time of the incident on September 16, 1986, engaged in inappropriate sexual activity with M.C., a neighborhood girl who was just short of her ninth birthday. The girl "had a crush" on P.M. and was close to his family. Taking advantage of M.C.'s vulnerability, her feelings for him and his family, and the disparity in their ages, P.M. kissed and hugged M.C., and rubbed the genital areas of his partially clothed body against the genital areas of M.C.'s partially clothed body in order to gratify his own sexual desires. M.C. initially submitted to P.M.'s sexual advances, but then asked him to stop. P.M. never threatened M.C. or used force during the incident, and he ceased his advances upon her request. M.C. reported the incident to her mother shortly after it took place. P.M. admitted kissing, hugging, and "rubbing bodies" with M.C., but denied that he attempted to have intercourse with her, as she claimed.

In February of 1987, a delinquency petition was filed against P.M., alleging that he engaged in lewd and lascivious conduct with a child under the age of sixteen. In a motion to dismiss prior to the merits hearing and again following the hearing, P.M. argued that he had not committed a delinquent act because 13 V.S.A. § 2602, 1 the statute proscribing lewd and lascivious conduct with a child under sixteen years, was "not intended to prosecute children under the age of 16." The court denied the motion to dismiss, stating:

Whether or not P.M. could be held criminally responsible under § 2602 is irrelevant to the proceeding here. It is the act in question which is critical; a delinquent act is an act designated a crime. The requirement of specific intent does not alter the nature of the act upon which the definition is predicated. P.M. would have the court equate "delinquent act" with "an act for which the juvenile actor could be criminally convicted." This would largely frustrate the purposes of Chapter 12, Title 33, and contravene the plain meaning [of] the statutory definition.

(Emphasis in original.)

Following the merits hearing, the court found P.M. guilty of having committed a delinquent act. The court pointed out that the case concerned sexual conduct between an adolescent and a child, not between adolescents. Based on the age disparity of the participants and other factors, the court concluded that P.M. committed acts that would have constituted lewd and lascivious conduct had he been in adult court. P.M. was placed on juvenile probation and required to participate fully in and successfully complete a sexual therapy and education program. On appeal, P.M. contends that (1) § 2602 does not criminalize sexual conduct between two consenting children under the age of sixteen, and (2) the trial court erred in prohibiting defense counsel from inquiring into allegations that M.C. had falsely accused others of engaging in sexual activity with her.


P.M. first argues that the statute proscribing lewd or lascivious conduct with a child under sixteen, § 2602, was intended to punish only persons over sixteen; therefore, P.M. was not guilty of committing a delinquent act. We disagree. Under 33 V.S.A. § 632(a)(3), a "delinquent act" is "an act designated a crime under the laws of this state." 13 V.S.A. § 2602 makes it unlawful for "a person" to "wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of such person or of such child." Under the plain language of the statutory provisions, P.M. could be found guilty of having committed a delinquent act.

P.M., however, argues that unless we construe the term "a person" as "a person over sixteen years of age," we must make the following two "preposterous" assumptions: (1) the Legislature intended to punish children who engage in consensual lewd or lascivious acts with other minors more severely than those children who engage in consensual sexual intercourse with other minors; and (2) the Legislature intended to make all adolescent "petting" a five-year felony. In support of this contention, P.M. points out that when the Legislature enacted § 2602, there was a rape statute in place providing that if a person under the age of sixteen "carnally knows" a female under age sixteen with her consent, both persons were guilty of committing a misdemeanor and could be sent to reform school. See 13 V.S.A. § 3202 (repealed in 1977). 2 Thus, according to P.M., a broad interpretation of the term "a person" in § 2602 would mean that two children engaging in consensual sexual intercourse could only have been sent to reform school, while two children engaged in "petting" could be sentenced to five years in prison for engaging in lewd or lascivious conduct.

We do not find P.M.'s reasoning to be persuasive. First, we agree with the trial court that the crucial inquiry is whether the act committed is designated a crime under a statute, not whether the juvenile could be criminally prosecuted under the statute. P.M. was not prosecuted under § 2602; rather, he was charged with being a delinquent child. Thus, the fact that the penalty for engaging in lewd or lascivious conduct with a child under § 2602 is greater than the penalty given to minors engaging in consensual sexual intercourse is irrelevant. Second, we agree with the State that the disparity between the penalties in the two provisions is reconciled by recognizing that former § 3202 addressed situations involving consensual sexual activity between minors, while § 2602 concerns situations where a child is sexually exploited by another person.

Noting that the Model Penal Code's "Corruption of Minors and Seduction" provision imposes liability on a person, regardless of age, who initiates sexual contact with a child four or more years younger and under the age of sixteen, Model Penal Code and Commentaries § 213.3 comment 2, at 385-86 (1980), P.M. concedes the desirability of a provision penalizing the exploitation of children by experienced adolescents, but claims that § 2602 is not such a statute and cannot be construed in such a manner. We believe that age differential is an important factor that may and should be considered by the trial court. Here, P.M. is six years older than the victim. In determining what constitutes lewd or lascivious conduct, this Court has deferred to common-sense community standards. State v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985). 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. Cf. id. at 442-43, 505 A.2d at 1206-07 (statute proscribing open and gross lewd or lascivious conduct is sufficiently certain to inform a person of reasonable intelligence that intentionally exposing oneself from inside home to others outside home constitutes a violation of the statute); State v. Roy, 140 Vt. 219, 229-30, 436 A.2d 1090, 1095 (1981) (whether words "lascivious" and "lewd" are too vague to be applicable depends on particular facts presented).

P.M. insists that construing § 2602 to cover one child's sexual conduct with another offends public policy and fairness because the alleged perpetrator is a member of the protected class and, in a sense, might also be a victim. In support of this view, P.M. points to Planned Parenthood Affiliates v. Van de Kamp, 181 Cal.App.3d 245, 226 Cal.Rptr. 361 (1986), where the court overruled an attorney general opinion that applied a child-abuse reporting law to all sexual activity of minors under age fourteen regardless of whether the minors were victims of child abuse or merely engaging in voluntary sexual conduct. In considering whether a child under fourteen could be found delinquent for engaging in lewd or lascivious conduct with a child under fourteen in violation of California Penal Code, § 288, the court stated,

It does not appear that a minor under 14 may be found delinquent for violating section 288. Obviously, the typical offender under the section is an adult. In a few cases, however, minors have been found delinquent for violating the statute, but the minors have all been over 14 and their victims substantially younger.... In In re James P. (1981) 115 Cal.App.3d 681, 171 Cal.Rptr. 466, a 15-year-old defendant was adjudicated delinquent for lewd conduct involving a 10-year-old victim.... None of these cases are instructive, as they do not involve a minor under 14 as the charged criminal actor.


... It is illogical to apply in a bright line fashion section 288 to the voluntary sexual conduct among minors who happen to fall under the age mandating protection from exploitive adults.

Id. at 274-75, 226 Cal.Rptr. at 376-77 (emphasis in original). The court, however, added the following footnote:

We can conceive of a hypothetical, sexually sophisticated 13-year-old who abuses a much younger child with the requisite criminal intent to exploit his or her sexual...

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