People v. Fauntleroy

• Citation: 94 Misc.2d 606,405 N.Y.S.2d 931
• Parties: The PEOPLE of the State of New York v. Lawrence FAUNTLEROY, Defendant.
• Decision Date: 01 May 1978
• Court: New York County Court

Page 931

405 N.Y.S.2d 931

94 Misc.2d 606

The PEOPLE of the State of New York v. Lawrence FAUNTLEROY, Defendant.

Westchester County Court.

May 1, 1978.

Carl A. Vergari, Dist. Atty. (Gloria M. Dabiri, White Plains, of counsel), for People.

Stephen J. Pittari, White Plains, and Arlene Popkin, Elmsford, for defendant.

DECISION

GERALD E. DELANEY, Judge.

The defendant is charged, via an indictment filed by the Westchester County Grand Jury, with the crimes of Rape in the First Degree (P.L. § 130.35.3) and Incest (P.L. § 225.25). Defendant has moved by omnibus motion for certain relief, inter alia Discovery and Inspection and Dismissal of the Accusatory Instrument.

A. MOTION TO DISMISS THE INDICTMENT

Defendant has alleged that the provisions of Penal Law § 130.35(3) are unconstitutional within the meaning of CPL § 210.25(3); that therefore the first count of the instant indictment is "defective" and that such motion to dismiss is proper under CPL § 210.20(1)(a).

Penal Law § 130.35(3) reads as follows:

" § 130.35 Rape in the First Degree

A male is guilty of rape in the first degree when he engages in sexual intercourse with a female; . . .

(3) Who is less than eleven years old."

The defendant bases his argument on the constitutional guarantees of "equal protection of the laws" and due process of law under the applicable New York and Federal Constitutional provisions. The two pronged attack states first that:

"The statute is gender based . . . (and) the scheme of this law therefore penalizes males because of their sex, while females similarly situated are not affected. It also denies to young male potential victims the protection it affords to young women, all without reasonable cause" (emphasis added. Defendant affidavit at p. 3.)

Counsel for the defendant further asserts that:

"The statutory distinction (assumably sex discrimination) in the instant case is based upon archaic notions and sexual stereotypes and cannot survive rational analysis" (emphasis added.) Id. p. 6.

The second prong of the attack on the statute argues that when read together, Penal Law § 130.35(3) and § 130.05(3)(a) deprive the defendant of due process of law. Penal Law § 130.05(1) states:

"Whether or not specifically stated, it is an element of every offense defined in this article, (Art. 130) except the offense of consensual sodomy, that the sexual act was committed without the consent of the victim." (Emphasis added)

However, Penal Law § 130.05(3)(a) further provides that:

"A person is deemed incapable of consent when he is:

(a) less than seventeen years old.

and Penal Law § 130.05(2)(b) provides that

"Lack of consent results from

(b) Incapacity to consent"

Penal Law sections 130.05(2)(b) and 130.05(3)(a), when read in conjunction with the Article 130 substantive offenses, provide what is commonly known as the crime of "statutory rape". Defendant, however, characterizes § 130.05(3) (a) as being an "irrebuttable presumption as to an element of a crime," (Defendant affidavit at p. 7) and then, having so characterized it, protests that it deprives the defendant of his "fundamental right to have every element of the crime charged established by proof beyond a reasonable doubt." Id. at 8 (emphasis original).

While the People have not directly responded to the second of defendant's arguments, the Court will treat such issue first.

1. The Legal Effect of Penal Law 130.05(3)(a)

Penal Law § 1.05 states the general purposes of the Penal Law as enacted in 1965 and effective in 1967. Those purposes include, inter alia:

"1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;

2. To give fair warning of the nature of the conduct proscribed . . . ;

3. To define the act or omission and the accompanying mental state which constitute each offense;

4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefore . . . "

It is also firmly recognized that "(s)tates have always had the right and power to regulate sexual conduct in order to promote the health, safety and morals of their inhabitants . . . " People v. Rice, 87 Misc.2d 257, 383 N.Y.S.2d 799 (Sup.Ct., App.Term, 2nd Dept. 1976). In working towards the 1965 Penal Law Revision the following comment appeared in the Commission Staff Notes prepared for the New York Legislature in 1964.

"135.05 (now § 130.05) Sex Offenses; lack of consent.

This section is new. It contains in the one section a basic element common to all sex offenses . . . i. e. lack of consent. Subdivision 3 sets forth the instances in which the law deems a person incapable of consenting to a sexual act (emphasis added).

The proposed revision lowered the "age of consent" from 18 years (old Penal Law § 2010, 690) to 17 years of age and the commission stated:

"At best, fixing the statutory age of consent in sexual matters is a difficult decision, but when considered within the framework of modern American culture, seventeen is a more realistic age of consent than eighteen." Id.

Following the passage of the 1965 Penal Law Revision the Commission Staff Comments recognized that under the current § 15.20(3) "knowledge by the defendant of the age of such child is not an element of any such offense and it is not . . . a defense to a prosecution that the defendant did not know the age of the child . . . ."

By our statutes then, the first legal "statutory rape " of which the youngest male may be convicted is proscribed in P.L. § 130.35(1), wherein a male is guilty of rape in the 1st Degree if he is at least 16 years old or more (P.L. 30.00(1)) and has sexual intercourse with a female less than 11; a truly consenting 10 year old female would occasion a Rape 1o charge against a 16 year old male lover should "sexual intercourse" be achieved. The "statutory rape" provisions of both P.L. § 130.25(2) and § 130.05(3)(a) would operate as a matter of law to negate such "true" consent as the law views a female of less than 17 as being incapable as in a matter of law of consenting to sexual intercourse and P.L. § 130.35 aggravates the crime if the female is under 11 years. Cf. People v. Fielding, 39 N.Y.2d 607, 611, 385 N.Y.S.2d 17, 350 N.E.2d 393. "Since in all rape cases . . . the girl's attitude toward the act is not an element of the crime, no proof need be offered of her non-consent." Note, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 Yale L.J. 55 (1952). Generally, as the age of the female increases and nears 17, the Degree of the "Statutory Rape" lessens. See P.L. §§ 130.30; 130.25. However, the converse is also true, the younger the female, the higher the Degree of crime.

The crime of "statutory rape" was unknown to the early common law. 4 Bl.Comm. 210 (Lewis Ed. 1902). New York State, however, has recognized such an offense for well over 100 years. See generally People v. Stamford, 2 Wheel Cr.Cas. 152; Singer v. People (1878), 13 Hun. 418, aff'm 75 N.Y. 608; Hays v. People, 1 Hill 351.

Defendant argues that since § 130.05(3)(a), by its language "deems" a person incapable of consent if under 17 years of age and McKinney's Practice Commentary § 130.05 states in its analysis that the "incapacity to consent" ( § 130.05(2)(b)) would be "conclusively established" by the condition of being under 17 years of age and § 130.05(3)(a), that such becomes "despite the lack of precise language, an irrebuttable presumption as to an element of a crime " (Defendant affidavit at p. 7). Having thus termed it an "irrebuttable presumption", defendant claims that, since it removes the element of consent, from the substantive rape count, that it "deprives defendant . . . of his fundamental right to have every element of the crime established by proof beyond a reasonable doubt". Id. at 8 (emphasis original).

Richardson on Evidence ; (10th Ed. 1973) defines a "presumption" as "a rule of law 'which requires that a particular inference must be drawn from an ascertained statement of facts' (cites omitted). The inference is mandatory once the 'basic fact' the fact which gives rise to the presumption, is established on the trial" Id. at § 55. The distinction is made, however, between a "presumption" and a "conclusive presumption ". The latter is "in reality, a rule of substantive law expressed in terms of rules of evidence (emphasis added). . . . that is, "an inference which, as a matter of law, cannot be rebutted" Id. at § 57.

The effect of P.L. § 130.05(3)(a) is that of statutory law and does not relieve the People of the burden of proving the element of "lack of consent" as stated in § 130.05(1) for by operation of law, § 130.05(3)(a) is one of the statutory legal definitions of the requirements of § 130.05(1) and as such, lack of the victim's true consent in circumstances wherein the female victim is less than 17 years of age is not, by law, an element of the substantive crime of Rape in the first degree, under § 130.35(3). Indeed, McKinney's Practice Commentaries to § 130.05 states "Since 'lack of consent' is the common denominator for all but one of the crimes proscribed in the Article (130), subdivisions two and three seek to define it with precision".

The "element" which the People obviously must prove, of course, beyond a reasonable doubt is simply the victim's age being less than 17 years at the time of the alleged rape. Once that is shown, the requirements of Penal Law § 130.05(1) are satisfied and the People must show the remaining "elements" of the crime to the same degree of proof.

What the law has recognized is a lack of legal capacity on the part of the victim to consent to such a sexual act. "The 'presumption of non consent' . . . does not refer to a presumption in the legal sense. Instead, the phrase refers to the presumption necessarily accompanying the conclusion of the rape in those situations where a woman's actual consent was legally...