People v. Breck
| Decision Date | 23 June 1998 |
| Docket Number | Docket No. 199668 |
| Citation | 584 N.W.2d 602,230 Mich.App. 450 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Joe BRECK, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James J. Gregart, Prosecuting Atty., and Alan D. Harbaugh, Asst. Prosecuting Atty., for People.
John M. Wiewiora, Muskegon, for defendant on appeal.
Before SAWYER, P.J., and MICHAEL J. KELLY and SMOLENSKI, JJ.
Following a bench trial, defendant was convicted of third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(c); M.S.A. § 28.788(4)(1)(c). He was sentenced to five to fifteen years' imprisonment. He was fifty years old at the time of sentencing. Defendant now appeals as of right. We affirm.
The charges against defendant arose out of the victim's accusation that defendant had repeatedly "raped" him. 1 Expert testimony established that the victim, sixty seven years-old at the time of trial, was "mentally retarded."
Defendant was charged under M.C.L. § 750.520d(1)(c); M.S.A. § 28.788(4)(1)(c), which provides that a person is guilty of committing criminal sexual conduct if he engages in penetration with another person whom he knew or had reason to know was mentally incapable. M.C.L. § 750.520a(f); M.S.A. § 28.788(1)(f) defines "mentally incapable" as "suffer[ing] from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct." At trial, the prosecutor alleged, and the trial court found, that the victim was incapable of consenting to acts of sexual intercourse with the defendant because the victim was "mentally incapable." On appeal, defendant argues that a plain reading of the statute indicates that the statute only prohibits sexual relations with persons who are unable to understand the physical nature of the act because of mental disease or defect. This is an issue of first impression in this jurisdiction.
At the close of the prosecution's case, defendant moved for a directed verdict on the basis that the prosecution had not proved that the victim was incapable of "appraising the nature of his conduct" in light of the fact that the victim stated that he knew what defendant was going to do to him each time they were alone but that he did not have the power to stop it. Defendant argued that whether the victim could comprehend the moral consequences of the sexual acts he engaged in with defendant was irrelevant, as long as the victim knew that the acts were occurring and was doing nothing to stop them. The prosecution argued that the victim could not appreciate the moral consequences of the acts, there was testimony to this effect, and therefore this element was proved. The trial court concluded that the legislative intent of the statutory language in question was to protect mentally incapable individuals because of their inherent inability to consent to sexual relations and found that without an understanding of the moral quality of the act, a person cannot intelligently and truly consent to such an act.
We agree with the conclusion reached by the trial court. First, we note that defendant does not cite any authority in support of his position that "ability to appraise the nature of his or her conduct" is limited to an awareness that the physical act is occurring. Defendant's position is also inconsistent with a logical interpretation of the statute. In essence, it would limit the protections of the statute to those individuals who are so divorced from reality that they are not even aware of what is happening to them physically. However, that small group of individuals would be covered under one of the other designations of either "mentally incapacitated" or, more appropriately, "physically helpless," which includes persons who are unconscious, asleep, or for any other reason physically unable to communicate unwillingness to participate in an act. M.C.L. § 750.520a(i); M.S.A. § 28.788(1)(i). Thus, to construe the statutory language in the manner advocated by defendant would strip the statute of the protection that the Legislature intended for those individuals, like the victim, who know what is happening to them but are incapable of protesting or protecting themselves because of a severely diminished intellectual capacity.
In construing statutory language substantially similar to our own 2 and on facts very similar to those in the present case, the New York Court of Appeals in People v. Easley, 42 N.Y.2d 50, 56-57, 396 N.Y.S.2d 635, 364 N.E.2d 1328 (1977), held as follows:
An ability to "appraise" is, of course, a qualitative matter, all the more so when the appraisal is one to be made of the "nature" of "conduct," with the variety of factors that the one "appraising" may have to take into account for such purposes. Cognitive understanding is involved. In a case such as the one before us, it includes being substantially able to understand what she was doing. An understanding of coitus encompasses more than a knowledge of its physiological nature. An appreciation of how it will be regarded in the framework of the societal environment and taboos to which a person will be exposed may be far more important. In that sense, the moral quality of the act is not to be ignored.
This is to be distinguished, however, from the participating woman's personal sense of morality. Whether her character is exemplary or depraved is beside the point. The object is not to probe the degree of her conformity or nonconformity to the norms of society. A knowing defiance of social mores, a mere yielding to temptation or passion, even an inclination to vice, these are not the concern of this statute.
But to flaunt society or to arraign oneself against its view is entirely different from having an understanding, or the capacity to understand, that one is doing so. Whether there is an awareness of the social or other cost of one's conduct is a legitimate area of inquiry in determining whether one is so mentally defective that the protective shield of section 130.05 of the Penal Law is invoked. Such inquiry should of course include the question of whether the person whose mentality is being judged has insight into the "consequences" of conduct for which the law exacts criminal penalties.
But that is not enough. The law does not mirror all prevailing moral standards. Therefore, there also needs to be inquiry as to whether there is a capacity to appraise the nature of the stigma, the ostracism or other noncriminal sanctions which society levies for conduct it labels only as immoral even while it yet "struggles to make itself articulate in law." Put in terms of this case, in its determination of [the victim's] capacity to appraise the sexual act, its significance and its consequences, the jury may well have been required to consider the "moral quality" of the act as it would be measured by society and to assess as well her ability to appreciate that fact. [Citations omitted.]
We find persuasive, and therefore adopt, the reasoning contained in the Easley decision and hold that the statutory language in question is meant to encompass not only an understanding of the physical act but also an appreciation of the nonphysical factors, including the moral quality of the act, that accompany such an act. This conclusion is bolstered by this Court's prior indications that the rationale behind the statutes prohibiting sexual relations with a mentally incapable person is that such a person is presumed to be incapable of truly consenting to the sexual act. See People v. Davis, 102 Mich.App. 403, 301 N.W.2d 871 (1980); People v. Khan, 80 Mich.App. 605, 264 N.W.2d 360 (1978).
In this case, psychologist George Starrett testified that he did not believe that the victim, whom he described as "mentally retarded," was capable of making an informed decision about whether to engage in sexual relations because he would not understand the long-term ramifications of safe sex or of engaging in a homosexual relationship. Dr. Starrett stated that the victim did not have a basic understanding of the nature of a romantic relationship and that he was a trusting individual who would quickly make a person his friend...
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