State v. Kummer
| Decision Date | 02 February 1981 |
| Docket Number | No. 80-892-CR,80-892-CR |
| Citation | 301 N.W.2d 240,100 Wis.2d 220 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Cory A. KUMMER, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Steven D. Phillips, Asst. State Public Defender, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Dorothy H. Dey, Asst. Atty. Gen., on brief, for plaintiff-respondent; Chris Heikenen, Asst. Atty. Gen., argued.
Cory Kummer, the defendant, seeks reversal of his conviction of second-degree sexual assault of a person over the age of twelve years and under the age of fifteen years on the ground that sec. 940.225(2)(e) and sec. 940.225(4), Stats.1977, are unconstitutional. This court granted defendant's petition to by-pass the court of appeals, sec. 808.05, Stats.1977; Rule 809.60, Stats.1977, and we affirm the conviction.
Sec. 940.225(2)(e), Stats.1977, provides:
Sec. 940.225(4), Stats.1977, provides:
The facts may be briefly stated. The defendant was charged with second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats.1977. Before trial the defendant moved to dismiss the information alleging that sec. 940.225(4) defining "consent" is unconstitutional because it establishes a conclusive presumption of nonconsent when the victim is under fifteen years of age. The motion was denied. Defendant then sought a pre- trial ruling on the admissibility of evidence he claimed would show that the young woman consented to the sexual activity on which the charge was based. This motion was denied.
At trial the evidence was undisputed that the defendant had had sexual contact with a young woman who was approximately fourteen years, ten months old. The defendant presented no defense to the jury, although he made an offer of proof to establish consent of the young woman. Both the defendant and the young woman testified in the offer of proof. While their testimony differed with regard to certain details, both witnesses stated that there was a mutual agreement to have sexual intercourse, that the defendant had not pressured or threatened the young woman to have intercourse with him, that they loved each other, and that they wanted to get married. The jury heard none of the testimony offered to show consent. Although remarking at the time of sentencing that "from all appearances and from the 'offer of proof,' the victim did consent to the act," the trial court refused to permit the introduction of the evidence, ruling that, as a matter of law, the young woman was incapable of consenting to sexual intercourse. The jury was instructed that Wisconsin law provides that a person under the age of fifteen cannot consent to sexual contact. 1 The defendant was found guilty of second-degree sexual assault.
The defendant argues that sec. 940.225(2)(e), Stats.1977, makes the victim's nonconsent an element of second-degree sexual assault when the victim is over twelve and under fifteen years of age; that sec. 940.225(4), Stats.1977, establishes a conclusive presumption that a victim under the age of fifteen is incapable of consent as a matter of law; and that the statutory creation of a conclusive presumption is unconstitutional because such a presumption invades the fact-finding province of the trier of fact and relieves the prosecutor of proving "beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). See also In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). 2
The state's position is that sec. 940.225(2)(e) and sec. 940.225(4) define second-degree sexual assault as sexual contact or sexual intercourse with a person over twelve and under fifteen years of age; that non-consent is not an element of the offense; and that sec. 940.225(4) does not create a presumption as to the capability of a person over twelve and under fifteen years of age to consent.
Given the structure of defendant's argument, the defendant's constitutional objection to the statute fails if nonconsent is not an element of the offense. 3 The question whether nonconsent is an element of the crime is a question of statutory construction which is a question of law. We begin our analysis of the issue, as did the circuit court, by considering the language of sec. 940.225, Stats.1977.
The constitutional challenge focuses on sec. 940.225(2)(e) and sec. 940.225(4). Both are inartfully drafted. Nevertheless we find in reading sec. 940.225(2)(e) and (4), Stats., that the legislature has divided sexual assault involving victims "under the age of 18 years" into several categories including:
1. First-degree sexual assault (Class B felony): sexual contact or sexual intercourse with a person 12 years of age or younger. Sec. 940.225(1)(d), (4), Stats.1977.
2. Second-degree sexual assault (Class C felony): sexual contact or sexual intercourse with a person "over the age of 12" and "under 15 years of age." Sec. 940.225(2)(e), (4), Stats.1977.
3. Second-degree sexual assault (Class C felony): sexual contact or sexual intercourse with a person "who is 15 to 17 years of age" without consent of that person. Sec. 940.225(2)(e), (4), Stats.1977. 4
The defendant urges that although the legislature may have intended this result its accomplishment falls short of the intent. We disagree with the defendant and conclude that the statute does not require proof of nonconsent where the victim is under fifteen years of age. This construction is supported by the language of secs. 940.225(1)(d), 940.225(2)(e) and 940.225(4) and the general statutory context in which these subsections appear and the legislative history of the offense of statutory rape.
Sec. 940.225(1)(d), Stats.1977, defines first-degree sexual assault, a Class B felony, and proscribes sexual contact or sexual intercourse with a victim twelve years of age or younger. The provision is silent as to the consent of the victim or the lack thereof. 5 Sec. 940.225(2)(e), Stats.1977, defines second-degree sexual assault, a Class C felony, and proscribes sexual contact or sexual intercourse with a person over the age of twelve years and under the age of eighteen "without consent of that person, as consent is defined in sub. (4)." Sec. 940.225(2)(e) is the only subsection of sec. 940.225 which specifically refers to sub. (4) when the word "consent" is used. Sub. (4) states that consent means "words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact." Sub. (4) then describes who is competent to give consent. "A person under fifteen years of age is incapable of consent as a matter of law. ... (while) "(a) person who is 15 to 17 years of age (is) presumed capable of consent but the presumption may be rebutted by competent evidence ...." Thus sub. (4) excludes those under the age of fifteen from the group of persons capable of giving consent and establishes a rebuttable presumption as to the capability to consent of a person between the ages of fifteen and seventeen.
The legislature did not set forth a presumption relating to consent and persons under fifteen years of age, i. e., the statute does not state that if a person is under the age of fifteen she or he is presumed not to have consented. The legislature set forth a policy determination that a person under the age of fifteen is not competent to give consent and that sexual contact or sexual intercourse with such a person is a criminal offense. Reading sec. 940.225(2)(e) and sec. 940.225(4) together yields the conclusion that consent is not an element of the offense of second-degree sexual assault if the victim is under fifteen years of age.
Reading sec. 940.225(4) to create a conclusive presumption that a person under fifteen years of age is incapable of consent strains the statutory language. First, the statutory language that "(a) person under fifteen years of age is incapable of consent as a matter of law" does not use the words "presume" or "presumption." In comparison the statute uses the word "presumption" in reference to the capability of a person who is fifteen to seventeen years of age to consent. The statute states that fifteen to seventeen year old persons "are presumed incapable of consent but the presumption may be rebutted by competent evidence ...." Sec. 940.225(4), Stats.1977.
Second, the statutory mandate that "(a) person under fifteen years of age is incapable of consent as a matter of law" does not set forth a presumption as that word is defined in the rules of evidence or as that word is generally understood. The rules of evidence state that "except as otherwise provided by statute" a presumption is a procedural device which "imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." Rule...
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...Determining the statutory elements of a crime is a question of law; therefore, our review is de novo. See State v. Kummer, 100 Wis.2d 220, 224-25, 301 N.W.2d 240, 243 (1981). Additionally, we review challenges to the constitutionality of a statute without deference to the decision of the ci......
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