State v. Sullivan

• Decision Date: 12 November 1980
• Docket Number: No. 63808,63808
• Citation: 298 N.W.2d 267
• Parties: STATE of Iowa, Appellant, v. Timothy SULLIVAN, Appellee.
• Court: Iowa Supreme Court

Page 267

298 N.W.2d 267

STATE of Iowa, Appellant, v. Timothy SULLIVAN, Appellee.

No. 63808.

Supreme Court of Iowa.

Nov. 12, 1980.

Thomas J. Miller, Atty. Gen., Douglas F. Staskal, Asst. Atty. Gen., and Allan L. Goode, Asst. Webster County Atty., for appellant.

C. Joseph Coleman of Mitchell, Coleman, Perkins & Enke, Fort Dodge, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, McCORMICK, McGIVERIN, and SCHULTZ, JJ.

REYNOLDSON, Chief Justice.

The State's appeal requires us to interpret and determine the constitutionality of subsection 709.4(2), The Code 1979. Trial court, sustaining defendant's motion to dismiss a third-degree sexual abuse charge grounded upon this statute, held it unconstitutionally vague. We affirm in part, reverse in part, and remand.

July 12, 1978, defendant was charged by trial information with sexual abuse in the third degree, a violation of section 709.4, Code Supp. 1977. Conforming to a court ruling, the State later filed a bill of particulars that alleged defendant violated subsection 709.4(2). ¹

This appeal presents a facial constitutional attack on subsection 709.4(2), thus there are no controlling facts before us. We briefly refer to the alleged evidence the State was prepared to present, disclosed by papers filed here as part of the record, only to show the context in which the charge arose. The allegedly retarded 25-year-old victim was purported to have the mentality of an eight-to-ten-year-old person. She was described as knowing "that people get married and have babies, but ... doesn't know how they have babies." Defendant was alleged to have picked her up off the street in his truck, taken her to his mobile home where he had intercourse with her, and then dropped her back on the street, crying, with a vaginal laceration that required four sutures.

November 1, 1978, defendant moved to dismiss the charges against him, alleging subsection 709.4(2) was unconstitutional because it "is framed in terms which are impermissibly vague, in that its prohibitions are not clearly defined and causes persons of ordinary intelligence to guess at what is prohibited." By separate paragraph defendant specifically claimed the second portion of subsection 709.4(2), which prohibits a sex act with a person who "lacks the mental capacity to know the right and wrong of conduct in sexual matters," was "of such an intangible nature that it violates the due process clause of the Constitution of the United States."

June 27, 1979, trial court sustained the motion to dismiss, determining that, "Section 709.4(2) fails to pass constitutional muster and must fall as unconstitutionally vague." Trial court held there was no fixed answer to the "right and wrong" provision that would guide conduct in this area. More broadly, trial court found the statute had no "fixed standard which is clearly ascertainable," and that a standard which required a person "to search another's thought process to arrive at a conclusion which is subject to varied interpretation (could not) provide notice of the conduct prohibited."

The State's appeal brief asserted trial court erred in declaring subsection 709.4(2) unconstitutional in its entirety when only the second portion of the subsection was challenged. It pointed out the county attorney never so limited the prosecution, and that the bill of particulars specified defendant was charged with violating subsection 709.4(2), not merely the second clause in that subsection.

Defendant filed an application for limited remand in which he alleged defendant was charged under the latter provision in subsection 709.4(2) and that this was the only provision trial court held unconstitutional. The State filed a "Partial Resistance" in which it agreed to the remand to trial court for the sole purpose of clarifying which portion of subsection 709.4(2) trial court intended to declare unconstitutional. The State challenged the various factual assertions and legal arguments contained in the application. Our order of remand was strictly limited:

It is hereby ordered that this case shall be remanded to the district court of Webster County for the following limited purpose: The district court shall promptly file a supplemental order stating whether its order of July 3, 1979, insofar as that order holds that section 709.4(2), The Code, is unconstitutionally vague, applies to the entirety of that statute or only to the final clause of the statute, to wit, that part of the statute making it unlawful to participate in a sex act with a person who "lacks the mental capacity to know the right and wrong of conduct in sexual matters."

Trial court's ruling following remand, filed April 3, 1980, stated that "(t) he ruling entered on July 3, 1979, although not specifically so limited, intended only to rule upon the constitutional issue as to the final clause, to wit: 'lacks the mental capacity to know the right and wrong of conduct in sexual matters.' "

The record and briefs now before us present the following issues: (1) whether trial court erred in holding the last portion of subsection 709.4(2) unconstitutionally vague and therefore void; and (2) if it is unconstitutional, whether the remainder of the statute remains viable and supports the charge as limited by the bill of particulars.

I. Constitutionality of the "right or wrong" provision in subsection 709.4(2).

Trial court's supplemental ruling makes clear it found only the following portion of subsection 709.4(2) unconstitutionally vague: "lacks the mental capacity to know the right and wrong of conduct in sexual matters."

The State contends this clause simply restates, in a different way, the essential meaning of "consent," the operative word in the first part of the challenged subsection. The State asserts the total subsection, interpreted in light of our prior decisions, merely requires one who would engage in a sex act with another to ascertain that the other participant is not suffering from a mental defect or incapacity that would prevent him or her from knowing and understanding the nature and consequences of the contemplated act.

Defendant argues it is not possible for a reasonable person to read the last part of the subsection and understand what specific conduct is prohibited; that the "right and wrong of conduct in sexual matters" invokes different standards in different people and is too indefinite to serve as a basis for a criminal charge.

The principles we apply in this type of case are well established. We briefly refer to only a few. The person mounting the constitutional challenge on a legislative enactment carries the heavy burden to rebut a strong presumption of constitutionality. See Miller v. Iowa Real Estate Commission, 274 N.W.2d 288, 291 (Iowa 1979); State v. Kueny, 215 N.W.2d 215, 216 (Iowa 1974). If a statute can be made constitutionally definite by a reasonable construction, this court is under a duty to give the statute that construction. State v. Williams, 238 N.W.2d 302, 306 (Iowa 1976) (quoting United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996-97 (1954)).

The specificity due process requires of a penal statute, Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972), need not be apparent from the face of the statute but may be ascertained by reference to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage. See Williams v. Osmundson, 281 N.W.2d 622, 625 (Iowa 1979); State v. Williams 238 N.W.2d at 307; State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975); State v. Willis, 218 N.W.2d 921, 923 (Iowa 1974) (quoting Kueny, 215 N.W.2d at 217). Judicial decisions from other jurisdictions may be helpful. Kueny, 215 N.W.2d at 218.

In ascribing meaning to a criminal statute, "courts may properly consider the evil sought to be remedied and the objects or purposes the legislative enactment seeks to obtain." State ex rel. Fulton v. Scheetz, 166 N.W.2d 874, 877-78 (Iowa 1969); see § 4.6, The Code. Subsection 709.4(2) was enacted in 1977, as a part of the Iowa Criminal Code revision (see 1976 Session, 66th G.A., ch. 1245, § 904).

One commentator believes new subsection 709.4(2) "corresponds to the prerevised statute 698.3 (§ 698.3, The Code 1975) and existing case law, but the language is modernized." J. Roehrick, The New Iowa Criminal Code: A Comparison 77 (1977). See also J. Yeager & R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 205, at 59 (1979), commenting that the language of new subsection 709.1(2), a definitional subsection corresponding to subsection 709.4(2), was distilled from State v. Haner, 186 Iowa 1259, 173 N.W. 225 (1919). The Haner court interpreted the former version of the statute and described the legislative intent behind its provisions:

(T)he protection of the law ... includes ... those who, while having some degree of intellectual power and some capacity for instruction and improvement, are still so far below the normal in mental strength that they can offer no effectual resistance to the approach of those who take advantage of their weakness to have or attempt sexual intercourse with them. This would ... include those who by reason of mental inferiority are incapable of knowing or realizing the moral quality of their act and are therefore also incapable of giving rational consent.

On the other hand, it manifestly does not include those who are endowed with mental capacity to know the right and wrong of their conduct in sexual matters, but yield to intercourse under the influence of temptation or passion or inclination to vice.

186 Iowa at 1262, 173 N.W. at 226 (emphasis supplied).

An overview of section 709.4 in light of Haner discloses an intent to protect certain persons from nonconsensual sex acts. Generally, subsection one prohibits the use of force or the commission of a sex act against the will of the other participant. Subsection two protects...