State v. Sapps
| Decision Date | 15 April 2002 |
| Docket Number | No. 0103003185., No. 0105005920 |
| Citation | 820 A.2d 477 |
| Parties | In re the Matter of STATE of Delaware v. David SAPPS. |
| Court | Delaware Family Court |
Carole E.L. Davis, Dept. of Justice, Georgetown, for the State.
Merritt Burke, III, William E. Moore, Public Defender's Office, Georgetown, for defendant.
In this opinion, the Court reviews the constitutionality of Title 11, Section 768 of the Delaware Code.2 That statute, entitled "Unlawful Sexual Contact in the Second Degree; Class G Felony", reads as follows:
Sexual contact is defined at Title 11, Section 761(f) as follows:
The particular concern of the Court is whether Title 11, Section 768 violates the equal protection rights of those defendants who are within four (4) years of age of the under sixteen (16) year old victim.3 This particular class of defendant is created by the "teenage defendant" category set forth in Title 11, Section 762(d).4 That Section states the following:
(d) Teenage defendant. — As to sexual offenses in which the victim's age is an element of the offense because the victim has not yet reached his or her sixteenth birthday, where the person committing the sexual act is no more than 4 years older than the victim, it is an affirmative defense that the victim consented to the act "knowingly" as defined in Section 231 of this Title. Sexual conduct pursuant to this Section will not be a crime. This affirmative defense will not apply if the victim had not yet reached his or her twelfth birthday at the time of the act.5
A review of the constitutionality of Title 11, Section 768 necessitates a comparison of the wording, difference in classification of offenses, and difference in consequences between Title 11, Section 768 and Title 11, Section 767.6 The wording of Title 11, Section 767 is as follows:
As one immediately notices, the two (2) statutes differ in the following respects: 1) Title 11, Section 768 only applies where the victim is less than sixteen (16) years of age. 2) Although lack of consent is an element in Title 11, Section 767, lack of consent is not an issue in the under sixteen (16) year old defendant situation of Title 11, Section 768. However, when one factors in the teenage defendant defense noted previously,7 the statutes are actually similar on the consent issue, at least to that class of defendants who are within four (4) years of age of the under sixteen (16) year old victim. 3) Finally, Title 11, Section 767 is a Class A Misdemeanor. Title 11, Section 768 is a Class G Felony.
Thus, here lies the concern of the Court. Whether the victim is thirty (30) years of age or under sixteen (16) years of age, the elements of the crime, with the exception of the age of the victim, are identical for the adult offender as well as the juvenile offender who is within four (4) years of age of the under sixteen (16) year old victim. Given the identical nature of unlawful sexual contact, such as the intentional touching of the buttocks, the adult defendant who touches the buttocks of the unwilling adult victim is guilty of a Class A Misdemeanor. The teenage defendant, however, who intentionally touches the buttocks of the unwilling teenage victim is guilty of a Class G Felony.8
The question becomes whether one can justify the teenager being charged with a felony while the adult, for the identical conduct, disregarding the victim's age, is charged with a misdemeanor. Of course, if the focus is solely on protecting the under sixteen (16) year old victim, as the State would suggest it should be, it makes sense to charge the teenage defendant with a higher level of charge than the adult defendant. But when one focuses on the scope of the intentional touching, be it the touching of an anus, breast, buttocks or genitalia of another person, it is arguable that it does not make as much sense to hold the teenage defendant more accountable than the adult defendant for the same type of contact.
To take this one step further, one questions whether it makes sense to charge the teenage defendant identically as the adult defendant, who has unlawful sexual contact with a sixteen (16) and under victim. In this situation, both the teenage defendant and the adult defendant will receive the identical charge resulting in a Class G Felony. Thus we ask whether the teenager should be held as accountable as the adult for the same type of unlawful touching where in each case the victim is under sixteen (16). Certainly, no one disputes the wisdom of making the adult more accountable for the unlawful touching of a teenage victim compared to the same adult unlawfully touching another adult victim. In the scenario of the adult defendant, the special protection and elevated charge level given in the sixteen (16) and under victim statute makes perfect sense.
The question in this case, however, is whether there is a rational basis, when considering the overall scheme of the Delaware sex statutes, including their historical heritage, to treat a teenage defendant the same as, and even more harshly than, the adult defendant who is guilty of the same unlawful actions.
Relevant to this issue are also considerations of the general purposes of the Family Court, and the related statutory consequences for the juvenile who is adjudicated a delinquent of a felony under Title 11, Section 768. Those related consequences include sex offender registration and notification under Delaware's Megan's Law,9 and the forfeiture of rights to use or possess firearms until age twenty-five (25).10
This particular case is one (1) of a series of cases recently before the Court which have in common the following undisputed facts:
The issues presented in this case originally surfaced in a companion case with the same limited set of undisputed facts.11 Although the Court indicated in the companion case that it would like the parties to file memoranda and that the Court would issue a written decision from which the date of appeal would run, the State chose to file an appeal before any memoranda were written and before the writing of the Court's decision in the companion case.12 The State's appeal in the companion case was eventually dismissed by the Delaware Supreme Court for having been prematurely filed.13 As such, the companion case, as well as other cases involving the above undisputed facts that have been stayed at the Family Court level pending this decision, will be controlled by this decision.
The Court began its review of the Delaware criminal sex-related statutes with the 1915 revised statutes of the State of Delaware. Chapter 149 of those statutes contained four (4) provisions involving unlawful sexual relations. Of the four (4) statutes, one (1) was related to children under seven (7) years of age, another was related to females under sixteen (16) years of age, and a third (3rd) statute was related to females or males under eighteen (18) years of age. The four (4) Sections of the 1915 Code which dealt with the protection of children against unlawful sexual relations were as follows:
4706. Sec. 10. Rape or Carnally Knowing Female Child Under Seven Years; Penalty; Recommendation to Mercy; Effect of:-
Whoever shall commit the crime of rape or who shall carnally know and abuse a female child under the age of seven years, shall be deemed guilty of a felony and shall suffer death; provided, however, that if the jury at the time of rendering their verdict, shall recommend the defendant to mercy, the court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.
4707. Sec. 11. Assault with Intent to Ravish; Penalty:-
Whoever shall, with violence, assault any female with intent to commit a rape, shall be deemed guilty of felony, and shall be fined not less than two hundred nor more than five hundred dollars, shall be whipped with thirty lashes, and shall be imprisoned not exceeding ten years.
4708. Sec. 12. Lewdly Playing with Female Child Under Sixteen Years; Penalty:-
Whoever shall lewdly and lasciviously play or toy with any female child under the age of sixteen years, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding five hundred dollars and shall be imprisoned for a term not exceeding three years.
4709. Sec. 13. Harboring Male or Female Child Under Eighteen Years for Sexual...
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...find under the facts of this case that simply based on his past acts that Mr. Arbaugh is a future threat. See State v. Sapps, 820 A.2d 477, 501 n. 82 (Del.Fam.Ct.2002) (citing Sue Righthand & Carlann Welch, Juveniles Who Have Sexually Offended: A Review of the Professional Literature 30-31 ......
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