State v. Jordan, 86-78-C

Citation528 A.2d 731
Decision Date09 July 1987
Docket NumberNo. 86-78-C,86-78-C
PartiesSTATE v. James JORDAN. A.
CourtUnited States State Supreme Court of Rhode Island

O P I N I O N

WEISBERGER, Justice.

This case comes before us on appeal by the defendant, James Jordan, from a judgment of conviction entered after a jury trial in the Superior Court. The jury returned a guilty verdict on one count of first-degree child-molestation sexual assault in violation of G.L. 1956 (1981 Reenactment) § 11-37-8.1, as amended by P.L. 1984, ch. 59, § 2. We reverse. The complaining witness, Catherine N., 1 testified to the following facts at trial.

On or about January 12, 1985, Catherine telephoned defendant and asked him to take her to the West Warwick police station so that she could lodge sexual-assault complaints against both her brother and her uncle. Catherine testified that she had met defendant through a friend a few months previous to the date in question and that she had seen defendant several times subsequent to their initial meeting. The defendant arrived to pick Catherine up, and after stopping at his house to get beer, the couple went for a drive, eventually returning to defendant's house. Catherine accompanied defendant inside his house and up the stairs to his bedroom where the couple engaged in sexual intercourse. 2 At the time of this occurrence, Catherine was thirteen years and ten months old. The defendant was twenty.

Section 11-37-8.1 provides as follows: "Definition of guilt of first degree child molestation sexual assault.--A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person thirteen (13) years of age or under."

The first two issues raised by defendant center on interpretation of this statute. The defendant asserts that (1) a person who has passed his or her thirteenth birthday is not thirteen years of age or under within the meaning of § 11-37-8.1, and (2) knowledge of the victim's age is an element of the crime of first-degree child-molestation sexual assault. Additionally, defendant argues that the trial justice erred in denying his motion for new trial.

I

THE VICTIM WAS NOT "THIRTEEN YEARS OF AGE OR UNDER"

The defendant contends that the trial justice erred in denying his motion for judgment of acquittal. That motion was based on defendant's contention that Catherine, aged thirteen years and ten months at the time of the alleged offense, was not a person "thirteen (13) years of age or under" within the meaning of § 11-37-8.1. The defendant takes the position that a person is no longer aged thirteen or under once that person has reached the day before the thirteenth anniversary of his or her birth. 3 After that date, defendant argues, a person is more than thirteen years old and not within the purview of § 11-37-8.1.

In considering defendant's assertion, we have carefully examined the development of the sexual-assault statutory scheme. In 1979 the Legislature repealed its prior laws relating to rape and seduction and enacted chapter 37 of title 11. 4 P.L. 1979, ch. 302, § 1 and § 2. Under chapter 37 as it existed in 1979, sexual penetration of a person "under thirteen (13) years of age" constituted first-degree sexual assault. 5 Sexual penetration of a person "over the age of thirteen (13) years and under the age of consent, sixteen (16) years of age" constituted third-degree sexual assault. 6 (See appendix A.)

Thus, the statutory scheme prohibited sexual penetration of persons "under thirteen" and persons over thirteen and under sixteen. It did not, however, proscribe sexual penetration of persons exactly thirteen years of age. A person who is exactly thirteen years of age is no longer "under thirteen." People v. Dudley, 53 Cal. App. 2d 181, 127 P.2d 569 (1942); Davis v. State, 152 Ga. 320, 110 S.E. 18 (1921); Commonwealth v. Howe, 35 Pa. Super. 554 (1908); see In re Edward, 441 A.2d 543 (R.I. 1982) (a person exactly eighteen years of age is not "under eighteen"). Nor is a person who is exactly thirteen years of age "over thirteen." State v. Linn, 363 P.2d 361 (Alaska 1961); Farrow v. State, 258 A.2d 276 (Del. 1969); Green v. Patriotic Order Sons of America, 242 N.C. 78, 87 S.E.2d 14 (1955); State v. Maxson, 54 Ohio St. 2d 190, 375 N.E.2d 781 (1978); In re Smith, 351 P.2d 1076 (Okla.1960).

Under the sexual-assault statutory scheme as it existed in 1979, therefore, sexual penetration of a person exactly thirteen years of age was prohibited neither by § 11-37-2 defining first-degree sexual assault nor by § 11-37-6 defining third-degree sexual assault. In 1981, however, the Legislature amended the first-degree sexual-assault statute to apply to victims "thirteen (13) years of age or under." P.L. 1981, ch. 119, § 1. At that time, the Legislature made no other changes in the statute and did not amend the third-degree sexual-assault statute.

After this change, first-degree sexual assault was defined as sexual penetration of a person "thirteen (13) years of age or under." Third-degree sexual assault continued to be defined as sexual penetration of a person "over the age of thirteen (13) years and under the age of consent, sixteen (16) years of age." (See appendix A.) In 1984 the Legislature revised chapter 37 of the General Laws and created the present statute, § 11-37-8.1, which was entitled "First Degree Child Molestation Sexual Assault." This revision simply had the effect of removing first-degree child-molestation sexual assault from the provisions of § 11-37-2 but otherwise left the definition of the crime unchanged. P.L. 1984, ch. 59, § 2. (See appendix A.) In short, the Legislature since 1981 defined two separate offenses. First-degree child-molestation sexual assault (punishable by from twenty years to life imprisonment) prohibits sexual penetration, whether voluntary or otherwise, in respect to a child thirteen years of age or under. Third-degree sexual assault (punishable by a maximum penalty of five years imprisonment) prohibits sexual penetration of a victim over the age of thirteen years and under sixteen years. These two statutes must be read in pari materia in order that the interpretation be consistent and harmonious.

If we were to accept the state's position that the Legislature intended in its 1981 amendment of the first-degree sexual-assault statute to include within its provisions not only persons who are exactly thirteen years of age but also those persons who have passed the date on which they attained the age of thirteen, but are not yet fourteen, then we must also determine that the third-degree sexual-assault statute applies only to those persons who are fourteen years of age and over but under sixteen. Otherwise, both statutes would proscribe sexual assault upon persons who are older than exactly thirteen years of age but are not yet fourteen, vesting the state's counsel with unfettered discretion to prosecute under either statute, one of which carries a minimum sentence of twenty years' imprisonment and a potential sentence of life imprisonment, the other carrying a maximum penalty of five years' imprisonment. Sections 11-37-8.2 and 11-37-7.

Further, if we were to accept the state's contention, bearing in mind that the age provision for third-degree sexual assault has remained unchanged, we should find that this would have led to an anomalous result when the two statutes were promulgated in 1979. At that time the first-degree sexual-assault statute provided a penalty for sexual penetration of a person under thirteen years of age. At the same time the third-degree sexual-assault statute provided a penalty for sexual penetration of a person over thirteen years of age. The state would have us construe the term over thirteen as meaning fourteen years of age. In 1979 such a construction would have resulted in there being no prohibition against sexual penetration of a person who had attained the age of thirteen years but was not yet fourteen. Such an intent could not be ascribed to the Legislature. As we have often stated, the Legislature should never be presumed to have intended to enact laws that are absurd, unjust, or unreasonable. Trembley v. City of Central Falls, 480 A.2d 1359 (R.I. 1984); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968); Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968).

It is our conclusion, therefore, that the words "over the age of thirteen (13) years" as used in § 11-37-6, do not in fact mean aged fourteen and over. When the statute was first enacted in 1979, one would have been hard pressed to argue that a person aged thirteen years and ten months was not included within its terms because at that time the first-degree statute was applicable only to persons "under thirteen." Certainly the sexual-assault chapter as it existed in 1979 could not have been construed so as to ascribe to the Legislature an intent to prohibit sexual penetration of persons under thirteen years of age and of persons between the ages of fourteen and sixteen and to omit the prohibition of sexual penetration of persons who are between thirteen and fourteen years of age. This court must assume that the Legislature intended that statutes relating to the same subject matter be construed together to be consistent and to effectuate the policy of the law. Rhode Island Higher Education Assistance Authority v. Rhode Island Conflict of Interest Commission, 505 A.2d 427 (R.I. 1986); Rhode Island State Police Lodge No. 25 v. State, 485 A.2d 1245 (R.I. 1984); Pickering v. American Employers Insurance Co., 109 R.I. 143, 282 A.2d 584 (1971).

Consequently, the only harmonious interpretation of these statutes would be one that construed thirteen years or under to include only those victims who had reached the day prior to their thirteenth birthday or were under that age. The provisions over thirteen...

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24 cases
  • People v. Cornett
    • United States
    • California Court of Appeals Court of Appeals
    • March 23, 2011
    ...years of age or under" applies to "persons under thirteen years of age and to those who are exactly thirteen years old"]; State v. Jordan (R.I.1987) 528 A.2d 731, 734 ["thirteen (13) years of age or under" includes "only those victims who had reached the day prior to their thirteenth birthd......
  • The People v. Cornett
    • United States
    • California Court of Appeals Court of Appeals
    • December 6, 2010
    ...years of age or under" applies to "persons under thirteen years of age and to those who are exactly thirteen years old"]; State v. Jordan (R.I. 1987) 528 A.2d 731, 734 ["thirteen (13) years of age or under" includes "only those victims who had reached the day prior to their thirteenth birth......
  • State v. Yanez
    • United States
    • Rhode Island Supreme Court
    • August 4, 1998
    ...the Institute of the Laws of England 179 (1797). See also United States v. Ransom, 942 F.2d 775, 777 (10th Cir.1991); State v. Jordan, 528 A.2d 731, 732 n. 4 (R.I.1987). Thus English courts, which had generally recognized the mistake of fact defense in criminal prosecutions since 1638, did ......
  • People v. Cornett
    • United States
    • California Supreme Court
    • April 30, 2012
    ...of language similar to “X years of age or younger” to children who have not passed the specified birthday. (See, e.g., State v. Jordan (R.I.1987) 528 A.2d 731, 733, 734 [court constrained to find “ ‘thirteen (13) years of age or under’ ” includes “only those victims who had reached the day ......
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