State ex rel. W.C.P., 981137-CA
| Decision Date | 11 February 1999 |
| Docket Number | No. 981137-CA,981137-CA |
| Citation | 974 P.2d 302 |
| Parties | 362 Utah Adv. Rep. 24, 1999 UT App 35 STATE of Utah, in the interest of W.C.P., a person under eighteen years of age. W.C.P., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
L. Clark Donaldson, Salt Lake City, for Appellant.
Jan Graham, Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellee.
Before Judges BENCH, BILLINGS, and JACKSON.
¶1 Defendant was convicted in juvenile court of rape of a child, in violation of Utah Code Ann. § 76-5-402.1 (Supp.1998), a first degree felony if committed by an adult. On appeal, defendant argues: (1) The State must prove his mens rea as to the victim's age; (2) the charge against him should be reduced to fornication, Utah Code Ann. § 76-7-104 (1995); and (3) the rape of a child statute is unconstitutionally vague. We affirm.
¶2 Defendant, a fifteen-year-old boy, had sexual intercourse with a thirteen-year-old girl (the victim) at her home. They had had sexual intercourse twice previously, and the victim testified that she consented to sex with defendant on this occasion. The victim also stated that she knew defendant would not have forced her if she had denied his request to have sexual intercourse. Further, the victim stated that she had told defendant that she was fifteen years old.
¶3 After the victim told her parents what had happened, defendant was charged in juvenile court with rape of a child. The parties stipulated that defendant was fifteen years old and the victim was thirteen. They further agreed that in lieu of a trial, the court would consider a videotaped interview of the victim and a transcript of that videotape. The court found defendant guilty of rape of a child, a violation of Utah Code Ann. § 76-5-402.1 (Supp.1998).
¶4 Defendant first argues the State must prove a mens rea of at least recklessness regarding the victim's age. The State responds that rape of a child is a strict liability offense and thus it need not prove any mens rea. 1
¶5 Our review of this question presents an issue of statutory interpretation, which we review for correctness, granting no deference to the trial court's ruling. See Evans v. State, 963 P.2d 177, 179 (Utah 1998).
¶6 As a preliminary matter, defendant correctly notes that it is a "basic proposition that a person cannot be found guilty of a criminal offense unless he [or she] harbors a requisite criminal state of mind or unless the prohibited act is based on strict liability." State v. Elton, 680 P.2d 727, 728 (Utah 1984). The rape of a child statute does not specify a mens rea, but rather provides only that "[a] person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14." Utah Code Ann. § 76-5-402.1 (Supp.1998). Because the State must prove a mens rea unless the crime is one of strict liability, defendant's argument hinges on his proposition that section 76-5-402.1 does not "evince a legislative intent for rape of a child to be a strict liability offense." We disagree.
¶7 A crime imposes strict liability "if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Id. § 76-2-102 (1995). The question before us, then, is whether section 76-5-402.1 "clearly indicates a legislative purpose" to create a strict liability offense. Id.
¶8 It is "a fundamental rule of statutory interpretation ... that a statute 'be looked at in its entirety and in accordance with the purpose which was sought to be accomplished.' " State v. Scieszka, 897 P.2d 1224, 1227 (Utah Ct.App.1995) (quoting Salt Lake City v. Salt Lake County, 568 P.2d 738, 741 (Utah 1977)). In discerning the purpose of section 76-5-402.1, we are guided by the "relationship [of section 76-5-402.1] to other sections of the criminal code." Id.
¶9 Viewing the criminal code as a whole, it is clear that a child under the age of fourteen cannot consent to sexual intercourse. This policy is stated succinctly in section 76-5-406, which provides that "[a]n act of ... rape of a child ... is without consent of the victim [when] the victim is younger than 14 years of age." Utah Code Ann. § 76-5-406, (9) (Supp.1998); accord State v. Villarreal, 889 P.2d 419, 422 (Utah 1995) (); Smith v. Morris, 690 P.2d 560, 562 (Utah 1984) (); State v. Gibson, 908 P.2d 352, 355 n. 2 (Utah Ct.App.1995) ( ).
¶10 Our conclusion that the criminal code's treatment of this issue evinces a clear legislative intent to impose strict liability is supported by other statutory provisions. For example, section 76-2-304.5 expressly removed mistake as to age as a defense to rape of a child. See Utah Code Ann. § 76-2-304.5 (Supp.1998). Section 77-2a-3(7) forbids the taking of a plea in abeyance for "sexual offense[s] against a victim who is under the age of 14." Id. § 77-2a-3(7). Further indication of a legislative intent to treat sexual offenses committed against children more harshly is found in sections 76-5-409 through 76-5-411, which relax the rules of evidence to facilitate admitting a child's testimony, see id. §§ 76-5-409 to -411 (1995), and section 76-1-303.5, which extends the applicable statute of limitation in a prosecution for rape of a child, see id. § 76-1-303.5 (Supp.1998). 2
¶11 Accordingly, we hold that section 76-5-402.1, when considered as part of our criminal code as a whole, clearly evinces a legislative intent to impose strict liability on any person having sexual intercourse with a child under the age of fourteen.
¶12 Defendant next contends the charges against him should be reduced to fornication under State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969). In essence, defendant argues it would be unfair to charge him with rape of a child, a felony, when his behavior could also be described as fornication under Utah Code Ann. § 76-7-104 (1995), a class B misdemeanor. This fairness argument is intertwined with his mens rea argument, as defendant goes on to argue that "[p]articularly where the trial court imposed no burden on the prosecution to establish that the defendant was aware or should have been aware that the victim was under age, it would be manifestly unjust to permit the felony conviction to stand."
¶13 We review the trial court's legal conclusion that the Shondel doctrine does not apply to this case "under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Vogt, 824 P.2d 455, 456 (Utah Ct.App.1991).
¶14 We agree with the trial court that the Shondel doctrine does not save defendant in this case. The question under Shondel is " ' "whether the ... statutes at issue proscribe exactly the same conduct, i.e., do they contain the same elements? " ' " State v. Fisher, 972 P.2d 90, 98, 359 Utah Adv. Rep. 12, 17 (Utah Ct.App.1998) (quoting State v. Kent, 945 P.2d 145, 147 (Utah Ct.App.1997) (quoting State v. Gomez, 722 P.2d 747, 749 (Utah 1986))). If the two statutes have the same elements, the accused must be given the benefit of the lesser charge. See id. However, if the elements of the crimes are not the same, the accused may be charged with the crime carrying the greater penalty, "even if the defendant could have been charged with the crime carrying the less severe sentence, so long as there is a rational basis for the legislative classification." Kent, 945 P.2d at 147.
¶15 Here, Shondel does not apply because the statutes do not overlap. Section 76-5-402.1 () provides that "[a] person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14." Utah Code Ann. § 76-5-402.1 (Supp.1998). In contrast, section 76-7-104 (fornication) provides that "[a]ny unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication." Id. § 76-7-104 (1995). Thus, the two statutes do not proscribe exactly the same elements: for rape of a child, the State must prove the victim's age; for fornication, the State must prove that the participants were unmarried. Moreover, section 76-5-406(9) provides that a child under fourteen cannot consent to sexual intercourse. See id. § 76-5-406(9) (Supp.1998). Thus, the fornication statute, which covers a situation in which an unmarried person consents to sexual intercourse, simply cannot apply to the present case. See id. § 76-7-104 (1995).
¶16 Finally, Defendant contends that section 76-5-402.1 is unconstitutionally vague, asserting that: (1) he "had no notice that his conduct could amount to rape of a child, when it was clearly proscribed by the fornication statute," and (2) the prosecutor should not have been able to choose whether Defendant's conduct should be prosecuted as rape of a child or as fornication.
¶17 Defendant's assertions present a question of law, which we review for correctness. See Board of Comm'rs of the Utah State Bar v. Petersen, 937 P.2d 1263, 1266 (Utah 1997). "A statute is presumed constitutional, and 'we resolve any reasonable doubts in favor of constitutionality.' " Id. at 1267 (quoting Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993)).
¶18 A law is void for vagueness if it " 'either forbids or requires the doing of an act in terms so vague that men of common...
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