State v. Superior Court of State of Ariz., In and For Santa Cruz County

• Citation: 154 Ariz. 624,744 P.2d 725
• Decision Date: 09 June 1987
• Docket Number: CA-SA,Nos. 2,s. 2
• Parties: The STATE of Arizona, Petitioner, v. SUPERIOR COURT of the STATE OF ARIZONA, In and For the COUNTY OF SANTA CRUZ, and the Honorable Jose M. Lerma, Judge Pro Tempore thereof, Respondents, and Manuel PUIG, Real Party in Interest. 87-0042, 2 87-0046.
• Court: Court of Appeals of Arizona

Page 725

744 P.2d 725

154 Ariz. 624

The STATE of Arizona, Petitioner, v. SUPERIOR COURT of the STATE OF ARIZONA, In and For the COUNTY OF SANTA CRUZ, and the Honorable Jose M. Lerma, Judge Pro Tempore thereof, Respondents and Manuel PUIG, Real Party in Interest.

Nos. 2 CA-SA 87-0042, 2 CA-SA 87-0046.

Court of Appeals of Arizona Division 2, Department A.

June 9, 1987.

Reconsiderations Denied July 7, 1987.

Review Denied Oct. 6, 1987.

[154 Ariz. 625] Jose Luis Machado, Santa Cruz Co. Atty., Nogales, for petitioner.

William Rothstein, Nogales, for real party in interest.

OPINION

HOWARD, Presiding Judge.

The real party in interest in these special actions is the defendant in a criminal case below, who is charged with one count of sexual abuse in violation of A.R.S. § 13-1404, a class 5 felony, and two counts of sexual assault in violation of A.R.S. § 13-1406, class 2 felonies. Following defendant's first trial, the jury delivered guilty verdicts on all charges. Subsequently, on the defendant's motion, the court granted a new trial. In these consolidated special actions, the state challenges rulings made by the trial court on pretrial motions heard in anticipation of the second trial.

THE CONSENT ISSUE

Defendant took the stand at his first trial and testified that he knew the victim was 17 years old at the time the incidents occurred. In defense, he claimed the victim had consented. In a motion in limine filed in anticipation of the retrial, the state sought a determination that, as a matter of law, it may establish lack of consent by proving the victim's minority. The issue raised by the state has not been addressed previously in Arizona. It requires a reconciliation of what appear to be inconsistent provisions in the criminal statutes at Title 13, Chapter 14, 5 A.R.S.

1. The Sexual Assault Charges

Defendant is charged with two counts of sexual assault by information which states that he committed the offenses "by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with [the victim], without her consent, a class 2 felony, in violation of A.R.S. § 13-1406(A)." The state contends that the "without consent" element of sexual assault may be established by proving the victim's minority, because at common law minors are deemed incapable of such consent. A.R.S. §§ 13-1406 and 13-1405 provide as follows:

§ 13-1406. Sexual assault; classifications

A. A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

B. Sexual assault of a person fifteen years of age or older is a class 2 felony, and the person convicted is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served. If the victim is under fifteen years of age, sexual assault is a class 2 felony and is punishable pursuant to § 13-604.01.

(Emphasis added.)

§ 13-1405. Sexual conduct with a minor; classifications

A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

B. Sexual conduct with a minor under fifteen years of age is a class 2 felony and is punishable pursuant to § 13-604.01. Sexual conduct with a minor fifteen years of age or over is a class 6 felony.

To follow the state's argument would mean that any case which involves sexual intercourse or oral sexual contact with a 15-, 16- or 17-year-old victim may, at the sole discretion of the prosecutor, be filed as either a class 2 felony (sexual assault under § 13-1406) or a class 6 felony (sexual conduct with a minor under § 13-1405). We do not believe that the legislature intended such a liberal construction of the revised criminal statutes.

Since territorial days, the crime of rape was defined as either nonconsensual sexual intercourse or sexual intercourse with a consenting female under the age of majority. See, e.g., Arizona Code ch. 10, § 47 (Howell 1864) (age of consent was 10 years) (superseded); Revised Statutes of Arizona § 9-423 (1887) (age of consent was 14 years) (superseded); A.R.S. § 13-611 (1955) (age of consent was 18 years). In 1962, the Arizona legislature redefined the general crime of rape and divided it into two degrees, each of which carried a different sentence. First-degree rape was defined to include situations in which intercourse was forcibly or otherwise nonconsensually accomplished. A.R.S. § 13-611(A) (1962). Second-degree rape included acts of sexual intercourse with a victim under the age of 18 years "under circumstances not amounting to rape in the first degree." A.R.S. § 13-611(B) (1962). Second-degree rape carried a sentence considerably less than that imposable for first-degree rape. A defendant's belief, however reasonable, that the second-degree rape victim was over the age of 18 years was no defense to the charge. State v. Superior Court of Pima County, 104 Ariz. 440, 454 P.2d 982 (1969).

The 1977 enactment of our revised criminal code included a substantial revision of the sexual offense statutes. The term "rape" was eliminated, and what were formerly first- and second-degree rape situations are now defined separately in A.R.S. §§ 13-1405 and 13-1406 as quoted above. A major addition to the criminal code was A.R.S. § 13-1407, which provides a defense to certain sexual offenses in certain circumstances. Specifically, § 13-1407(B) provides:

It is a defense to a prosecution pursuant to §§ 13-1404 and 13-1405, in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.

By its terms, the defense created under § 13-1407(B) is not available to a defendant charged with sexual assault. Section 13-1407(B) is applicable only where the charge is sexual abuse or sexual conduct with a minor, where the 15-, 16- or 17-year-old minor consented, and the defendant reasonably believed the minor was 18 or older. We believe that the legislature's decision to create a defense to certain charges, based upon a reasonably mistaken belief as to the age of a consenting victim, but to make such a defense unavailable as against a charge of sexual assault, reveals an intent that the "without consent" element of sexual assault requires proof of something more than mere incapacity to consent due to the victim's minority.

Our construction is consistent with A.R.S. § 13-1401(5), where the legislature broadened the definition of "without consent" beyond traditional views of force but chose not to include the victim's minority or incapacity to consent. That section provides:

§ 13-1401. Definitions

In this chapter, unless the context otherwise requires:

* * *

* * *

5. "Without consent" includes any of the following:

(a) The victim is coerced by the immediate use or threatened use of force against a person or property.

(b) The victim is incapable of consent by reason of mental disorder, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant.

(c) The victim is intentionally deceived as to the nature of the act.

(d) The victim is intentionally deceived to erroneously believe that the person is the victim's spouse.

A.R.S. § 1-211(C) tells us that penal statutes must be construed "according to the fair import of their terms, with a view to effect their object and to promote justice." In a proper situation, we may apply the doctrine of expressio unius est exclusio alterius. State v. Allred, 102 Ariz. 102, 425 P.2d 572 (1967). The legislature has defined "without consent" in § 13-1401(5). It appears that it necessarily meant to exclude minority or such incapacity from that general definition. Intercourse or oral sexual contact perpetrated without the victim's consent, regardless of the victim's age, may constitute the crime of sexual assault. If the victim is a minor, nonconsensual intercourse or oral contact may also be charged under § 13-1405 as sexual conduct with a minor. ¹ In that event, the age of the minor victim determines the class of the offense. ² Thus, where a victim is younger than 15, the state can charge a defendant under § 13-1405 and, without the requirement of proving lack of consent, achieve the same result. Compare A.R.S. §§ 13-1405(B) and 13-1406(B). It is only where a victim is 15, 16 or 17 that the charge involving sexual intercourse or oral sexual contact will turn on whether the acts were consensual. If they were, the defendant will not be guilty of sexual assault under § 13-1406 because that offense requires proof that the contact was in fact nonconsensual.

Other state legislatures have specifically defined their offenses to reach the result sought by the prosecutor in the instant case. For example, in Oregon, the statutes provide that a person is incapable of consenting to a sexual act if he is under 18 years of age. O.R.S. 163.315. Thus, the Oregon courts have held that an allegation of the victim's minority has the effect of an allegation that there is no consent with regard to all sexual offenses charged. State v. Landino, 38 Or.App. 447, 590 P.2d 737 (1979). The Landino court quoted the drafters of the revised Oregon criminal code as follows:

The effect of the draft is to provide that consent by a person deemed incapable of consenting to a sexual act would not be a defense to a prosecution for either rape, sodomy, sexual abuse or sexual misconduct, whereas consent by a person not deemed incapable of consenting to a sexual act would be a good defense to a...