State v. Frost

Decision Date18 December 1996
Docket NumberNo. 94-795,94-795
Citation686 A.2d 1172,141 N.H. 493
PartiesThe STATE of New Hampshire v. Joel FROST.
CourtNew Hampshire Supreme Court

Jeffrey R. Howard, Attorney General (Jeffrey S. Cahill, Assistant Attorney General, on the brief and orally), for the State.

Andrew R. Schulman, Public Defender, Manchester, by brief and orally, for the defendant.

Wiltrud R. Mott-Smith, Concord, by brief, for Disabilities Rights Center, Inc., as amicus curiae.

BROCK, Chief Justice.

The defendant, Joel Frost, appeals his convictions on two counts of aggravated felonious sexual assault for engaging in sexual penetration with a "mentally defective" person in violation of RSA 632-A:2, I(h) (1996). We reverse and remand.

At the time of the incidents in question the complainant, a mildly mentally retarded woman, was in her mid-twenties. The defendant was a residential aide who provided care to a developmentally disabled man named Rick Meserve at Mr. Meserve's home. The complainant was a friend of Mr. Meserve who often visited him. A friendship developed between the complainant and the defendant.

One day, the defendant drove the complainant to his own home. Once inside, they kissed, and the defendant told the complainant that he loved her. They went to the defendant's bedroom and engaged in digital penetration and sexual intercourse. The defendant was convicted of two charges stemming from this incident after a jury trial in Superior Court (Mohl, J.).

On appeal, the defendant argues that: (1) the trial court erroneously instructed the jury on the "mentally defective" element of RSA 632-A:2, I(h); (2) the trial court should have granted the defendant's motion for certain cognitive testing of the complainant; (3) the trial court should have allowed the defendant to introduce evidence that the complainant had a physically intimate relationship with another man in order to prove that she was legally capable of consenting to sexual relations; (4) RSA 632-A:2, I(h), as applied, violates the constitutional rights of retarded persons and their sexual partners, and their rights under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132 (1995); and (5) the evidence was insufficient for a rational jury to find that the complainant was "mentally defective" within the meaning of the sexual assault statute. The Disabilities Rights Center, Inc. filed an amicus curiae brief arguing that RSA 632-A:2, I(h) on its face violates the ADA.

I. Jury Instructions

The defendant makes two arguments regarding the jury instructions. The defendant first challenges the jury instructions concerning the complainant's legal capacity to consent. See RSA 632-A:2, I(h).

"The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. Vincent, 139 N.H. 45, 48, 648 A.2d 478, 480 (1994) (quotation omitted). In reviewing the trial court's jury instructions, we evaluate any allegations of error "by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case." Id. (quotation omitted). Viewed in this light, the instructions must adequately and accurately explain each element of the offense. See id. at 49, 648 A.2d at 481; State v. Newcomb, 140 N.H. 72, 76, 663 A.2d 613, 616 (1995). We will reverse the trial court's decision if the jury instructions did not "fairly cover the issues of law in the case." State v. Dedrick, 135 N.H. 502, 505, 607 A.2d 127, 129 (1992).

RSA 632-A:2, I(h) provides that "sexual penetration with another person" is a felony "[w]hen, except as between married spouses, the victim is mentally defective and the actor knows or has reason to know that the victim is mentally defective." We have construed this section to prohibit non-forcible sexual penetration "only with those persons whose mental deficiency is such as to make them incapable of legally consenting to the act." State v. Degrenier, 120 N.H. 919, 921, 424 A.2d 412, 413 (1980). In Degrenier, we stated that a person is mentally defective if he or she "suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct." Id. at 921, 424 A.2d at 414 (quotation omitted).

The defendant urges us to read Degrenier narrowly, arguing that the phrase "appraise the nature of his or her conduct," refers only to the complainant's capacity to understand the nature and physical consequences of sexual conduct. The State, in contrast, urges us to read Degrenier as including a complainant's capacity to comprehend a "wide array of possible consequences" of sexual conduct, including how the conduct "will be regarded in the framework of the societal environment and taboos to which a person will be exposed."

These different interpretations reflect the conflicting concerns expressed by the parties. On the one hand, the State rightly is concerned that the law must protect the subset of "mentally defective" persons who are vulnerable to exploitation because of their inability legally to consent. On the other hand, the degree of impairment in reasoning ability varies widely among those who might be characterized as "mentally defective." See, e.g., Hayman, Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv.L.Rev. 1201, 1214-15 (1990). The defendant and amicus correctly note that another subset of "mentally defective" persons is capable of legally consenting to sexual relations and thus does not require protection under subparagraph I(h).

In order to protect the rights of both subsets of "mentally defective" persons, we further refine the Degrenier standard. We hold that a complainant is "mentally defective" within the meaning of RSA 632-A:2, I(h) only if he or she (1) suffers from a "mental disease or defect" and (2) is incapable of freely arriving at an independent choice whether or not to engage in sexual conduct. The second prong addresses a person's capacity to appraise in a meaningful way the physical nature and consequences of his or her sexual conduct, including its potential to cause pregnancy or disease. The emphasis is on the individual's capacity--capacity to learn about physical consequences and to make a decision based on whatever evaluative process the person chooses to employ, as long as the decision is legitimately the person's own. A complainant is not "mentally defective" merely because he or she does not in fact take any action to learn about consequences, or fails to consider alternatives prior to choosing a particular course of action.

We decline the State's invitation to expand the scope of the Degrenier test. To impose a requirement that a complainant be capable of understanding and evaluating the potential emotional and moral consequences of sexual activity, including the "societal environment and taboos," would require of "mentally defective" persons something that we do not require of others whom society permits to engage in sexual relations without criminalizing their partners' conduct. To impose such a requirement would result in a natural tendency for the jury, no matter how carefully instructed, to base its decision on its own moral judgment of the sexual conduct instead of on its determination of whether the complainant freely chose to engage in that conduct. See State v. Sullivan, 298 N.W.2d 267, 271 (Iowa 1980). The complainant's ability to "appraise the nature of his or her conduct," in order to be found legally capable of consenting, is limited to whether the complainant had the capacity to understand the immediate physical consequences of the charged sexual conduct, including the sexual nature of that conduct and its potential for causing pregnancy or disease.

The trial court's instructions to the jury included a statement that tracked the Degrenier standard. The jury was instructed to consider whether the complainant "suffers from a mental disease or defect which renders [her] temporarily or permanently incapable of appraising the nature of his or her conduct." The jury did not have the opportunity, however, to consider today's clarification of the Degrenier standard in determining whether this particular complainant was legally capable of consenting to sexual relations with the defendant. The jury heard evidence tending to show that the complainant did understand both the nature of sexual relations and the possibility of pregnancy and sexually transmitted diseases. The jury also heard evidence tending to minimize the complainant's understanding of sexual matters. See State v. Call, 139 N.H. 102, 104, 650 A.2d 331, 332-33 (1994). Because the trial court's charge to the jury failed to provide an adequate explanation of the standard for determining "mentally defective," we reverse these convictions and remand. See Vincent, 139 N.H. at 49, 648 A.2d at 481.

In the interest of judicial economy, we will address the defendant's remaining arguments to the extent they are likely to arise at a new trial. See State v. Cressey, 137 N.H. 402, 412, 628 A.2d 696, 703 (1993). The defendant next contends that the trial court erred in its instructions by adding two "factors" beyond the Degrenier test, thereby treating the Degrenier test as merely one factor among several to be considered by the jury in deciding whether the complainant was "mentally defective." We agree.

The trial court instructed the jury as follows:

I also indicated to you that one of the--one part of the element is that the person is a mentally defective person. A person who is mentally defective is one who is legally incapable of consenting to the sexual act. In determining whether one is legally incapable of consenting you should consider a number of factors: Whether or not the person is of marked subnormal intelligence, whether the person is mentally defective in any recognizable and...

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