Commonwealth v. Smith

728 N.E.2d 272, 431 Mass. 417, 2000 Mass. LEXIS 241
Massachusetts Supreme Judicial Court·Decided May 11, 2000·Published·Cited by 46 cases

Opinions

Lynch, J.

A Plymouth County grand jury indicted the defendant on two charges of incest pursuant to G. L. c. 272, § 17 (incest statute), based on conduct he allegedly engaged in with his daughter.1 The defendant moved in the Superior Court, [418] pursuant to Mass. R. Crim. P. 13 (c), 378 Mass. 871 (1979), to dismiss the indictments, arguing that, because there was no evidence of penile-vaginal penetration, the grand jury lacked sufficient evidence that he had engaged in “sexual intercourse” with his daughter, as required by the incest statute.2 The judge allowed this motion to dismiss, and the Appeals Court affirmed, on the ground asserted by the defendant. See Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999). We granted the Commonwealth’s application for further appellate review. We now affirm the judgment of the Superior Court, although on reasoning different from that relied on by the Appeals Court.

1. Facts and prior proceedings. The charges against the defendant arose from allegations made by his daughter. The Commonwealth presented the grand jury with testimony of the daughter, her boy friend, and State Trooper Leonard C. Coppenrath, to whom the daughter had reported the defendant’s conduct. The daughter testified, in relevant part, that the defendant had fondled her in an inappropriate manner after she was eleven years old and that, after she reached the age of sixteen years, he put his hands down her pants and digitally penetrated her vagina and also had her perform oral sex on him. Her boy friend testified that the daughter reported to him her father’s sexual conduct toward her, in particular the acts of oral sex. The State trooper testified that the defendant, while admitting that he had rubbed sports cream on his daughter’s chest, denied having any further sexual contact with her.

In allowing the defendant’s motion to dismiss the incest indictments, the judge concluded that the alleged acts of digital penetration and oral intercourse did not satisfy the requirement in G. L. c. 272, § 17, of “sexual intercourse” between consanguineous relations. In the absence of a definition of “sexual intercourse” in the incest statute, the judge relied on this court’s construction of this term, and of the related term “unnatural sexual intercourse,” in the context of the rape statutes, G. L. c. 265, §§ 22, 22A, 23. In Commonwealth v. Gallant, 373 Mass. 577, 584 (1977), construing these terms [419] within G. L. c. 265, § 22, this court concluded that, “[b]y sexual intercourse, the Legislature undoubtedly intended the traditional common law notion of rape, the penetration of the female sex organ by the male sex organ, with or without emission,” whereas “unnatural sexual intercourse,” by contrast, refers to “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body.” Because the incest statute explicitly criminalizes “sexual intercourse” but not “unnatural sexual intercourse” between consanguineous relations, the judge concluded that the defendant’s alleged conduct with his daughter did not warrant a finding of probable cause that the defendant had committed the statutory crime of incest and, therefore, dismissed the indictments. A panel of the Appeals Court affirmed, for substantially the same reasons. See Commonwealth v. Smith, supra at 823-824.

2. Discussion. In reviewing a judge’s pretrial decision to dismiss indictments against a defendant, we must determine whether the evidence supported the judge’s factual findings and whether the findings warranted his rulings of law. See Commonwealth v. Aponte, 391 Mass. 494, 504 (1984). The Legislature has not explicitly defined the term “sexual intercourse” in G. L. c. 272, § 17, and in prior cases brought under the statute we have not been required to determine whether this term extends to forms of sexual conduct other than penile-vaginal penetration.3 We conclude that, but for the Legislature’s post-1974 amendments of statutes in G. L. c. 272 that contain the term “sexual intercourse” and its addition of the term “unnatural sexual intercourse” to G. L. c. 272, § 3, the term “sexual intercourse” in the incest statute, G. L. c. 272, § 17, could properly be construed to encompass the acts here alleged to have been engaged in by the defendant with his daughter. However, in light of that legislative activity, we are compelled to limit the meaning of “sexual intercourse” in G. L. c. 272, § 17, to penile-vaginal penetration, with or without [420] emission, and to conclude that the incest indictments against the defendant were properly dismissed.

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Commonwealth v. Smith, 728 N.E.2d 272, 431 Mass. 417, 2000 Mass. LEXIS 241 (Mass. 2000).

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