In re G.T.

758 A.2d 301, 170 Vt. 507, 2000 Vt. LEXIS 136

Opinions

Dooley, J.

G.T. appeals from a family court order adjudicating him to be a delinquent child because he is guilty of statutory rape, that is, he engaged in a sexual act with a person under the age of sixteen years, in violation of 13 V.S.A. § 3252(a)(3). At the time of the alleged offense, G.T. was fourteen years of age. He contends that, as a person within the protection of the statutory rape statute, he cannot be charged with violating the statute. We agree and reverse.

The trial court’s findings are not contested on appeal. G.T. lived across the street from M.N., a twelve-year-old girl. The two had been friends, but had never had sexual contact with each other prior to the incident in question. One night in October 1995, while G.T. and M.N. were watching a television movie in M.N.’s house, G.T. began kissing M.N. on the mouth. G.T. then pulled M.N.’s legs out straight, pulled her shorts down, pulled his pants down, and got on top of her. He continued kissing her with his hands on her shoulders. M.N., who had never previously had intercourse, felt what she believed was G.T.’s penis in her vagina. G.T. asked if it hurt, but did not stop when M.N. said it hurt. Although she was not afraid of him, M.N. was not sure what G.T. would have done if she had pushed him off of her.

G.T.’s actions were interrupted when M.N.’s mother and boyfriend unexpectedly returned to the house. They saw G.T. scramble up off M.N., but did not observe sexual contact. They ordered G.T. out of the house. M.N. began crying and ran upstairs. She revealed to her mother what had occurred.

On these facts, the State alleged that G.T. had committed statutory rape and, therefore, had engaged in a delinquent act. Based upon the above facts, the family court adjudicated G.T. a delinquent child, and this appeal followed.

Some context is necessary to frame the issue before us. A “delinquent child” is a child between the ages of ten and sixteen who has committed a delinquent act. See 33 V.S.A. § 5502(a)(1), (4). A “delinquent act” is defined, in relevant part, as “an act designated a crime under the laws of this state.” Id. § 5502(a)(3). The question we must address is whether the family court properly found that G.T. committed a crime, specifically the crime of statutory rape.

The crime of statutory rape is defined in 13 V.S.A. § 3252(a)(3) as follows:

(a) A person who engages in a sexual act with another person and

(3) The other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both.

G.T. argues that the juxtaposition of the word “person” in the two parts of the statute shows that the Legislature intended that the perpetrator be a person of sixteen years of age or older. Although G.T. recognizes that the plain meaning of the term might not contain that limitation, he argues that the context does require such a limitation.

G.T. also stresses that we have held that statutory rape is a strict liability offense, see State v. Searles, 159 Vt. 525, 528-29, 621 A.2d 1281, 1283 (1993), for which the only elements are the age of the “victim” and the presence of a sexual act. See State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). Thus, under the State’s theory, both G.T. and M.N. have necessarily committed the crime, and all consensual sexual activity between teenagers is a felony for both participants. Given the prevalence of such activity, see Vermont Dep’t of Health, Vermont Youth Risk Behavior Survey 53-54 (1997) (among students in the eleventh grade, the year in which they generally turn sixteen, fifty-six percent of males and fifty percent of females report having had sexual intercourse)¹ and the potential sentence of twenty years in jail,² G.T. argues that such a construction creates absurd, irrational or unjust results.

As G.T. emphasizes, we faced a similar statutory construction determination in In re P.M., 156 Vt. 303, 592 A.2d 862 (1991), a delinquency proceeding in which the male juvenile, who was almost fifteen years old, engaged in inappropriate sexual activity with a young girl who was almost nine years old. In EM., the juvenile was charged with lewd and lascivious conduct with a child under sixteen years of age, in violation of. 13 V.S.A. § 2602, and argued that the perpetrator could not also be a child under sixteen years if the sexual activity was consensual. As in this case, the statute was silent on the age of the perpetrator. Similar to this case, the juvenile argued that it was absurd to believe that the Legislature intended to make teenage ' petting a felony.

Although we rejected the juvenile’s argument in EM., we found that “age differential is an important factor” in determining whether the juvenile engaged in a delinquent act because “common-sense community standards” must control what is lewd and lascivious conduct. See id. at 308, 592 A.2d at 864. We concluded:

Under the facts of this case, considering the age disparity of the participants, § 2602 is sufficiently certain to inform a person of reasonable intelligence that the conduct engaged in by EM. is proscribed.

Id.

G.T. argues that if we took a similar approach here we would reject prosecution under § 3252(a)(3) because the age differential is much narrower than in P.M., and the State can charge G.T. under § 3252(a)(1), which criminalizes nonconsensual or coerced, compelled participation in a sexual act.

Although EM. is helpful, we do not find it controlling. In P.M., the issue was whether the conduct of the juvenile met the broad and general standard of “lewd and lascivious conduct,” and this Court defined what factors were relevant to that determination. Here the standard, if it applies, is narrow and specific. See In re John C., 569 A.2d 1154, 1156 (Conn. App. Ct. 1990) (criminal statute on impairing the morals of children covered “any person” and, therefore, a minor defendant); In re J.D.G., 498 S.W.2d 786, 789 (Mo. 1973) (rape statute covering “every person” who has intercourse with a female child under the age of sixteen years applies to boy under sixteen). Nevertheless, we concluded that the statute involved in that case, § 2602, “concerns situations where a child is sexually exploited by another person.” We believe that § 3252(a)(3) also concerns those situations.

Although EM. is not controlling, we find three other reasons to follow its approach and question the apparent plain meaning of § 3252(a)(3) in this context. The first is that the Legislature has taken other actions which appear inconsistent with the plain meaning of § 3252(a)(3). Similar inconsistencies form the basis for the decision in Planned Parenthood Affiliates v. Van de Kamp, 226 Cal. Rptr. 361 (Ct. App. 1986), a case discussed at length in EM.

In Van de Kamp, reproductive health care providers sued the California attorney general to overturn his ruling requiring health care providers to report to law enforcement, under the California child abuse reporting law, the names of children under fourteen years of age who they believed had engaged in voluntary, consensual sexual activity with another minor of similar age. The attorney general had ruled that such reporting was required because California law included within the crime of sexual abuse lewd and lascivious conduct upon or with the body of a minor under fourteen years of age and did not require that the perpetrator be fourteen years of age or older. In essence, the attorney general had ruled that every sexually active child under fourteen years of age was a child abuse victim, perpetrator or both, and every medical care provider who learned of this activity in the course of extending medical care was required to report it to law enforcement authorities for investigation of prosecution. The failure of a medical care provider to report, when required by the law, is a crime in California.

The court in Van de Kamp agreed with the providers’ contention that minors would not seek reproduction-related health care if no confidentiality requirements applied and their circumstances were automatically reported for a criminal investigation. Accordingly, it held that the legislature could not have intended that the providers report as child abuse all voluntary sexual activity of minors under fourteen years. It reached that conclusion in part by holding that the underlying criminal statute does not apply to sexual activity between partners who are both under the age of fourteen. See id. at 376-77. Contrary to the characterization in the dissent, this holding is not dicta.

Although the context of this decision is different, the exact conflict that underlies the Van de Kamp decision is present in Vermont. A “child who is sexually abused ... by any person” is an “abused or neglected child.” 33 V.S.A. § 4912(2). Rape of a child is sexual abuse. See id. § 4912(8).³ If any health care provider; school teacher, librarian, principal, or guidance counselor; mental health professional; day care worker; social worker; police or probation officer; or camp owner, administrator or counselor, among others, has reason to believe a child has been abused, that person must report that fact to the Department of Social and Rehabilitation Services (SRS) within twenty-four hours. See id. § 4913(a). Failure to make such a report is a misdemeanor, subject to a fine of not more than $500. See id. § 4913(e).

The commissioner of SRS is required to commence an investigation within 72 hours of receiving the report. See id. § 4915(a). Normally the investigation must include a visit to the child’s place of residence and an interview with the child, see id. § 4915(b)(1), (2), and determine the “identity of the person responsible for such abuse or neglect.” Id. § 4915(b)(4). If the abuse is substantiated, the commissioner or a designee “shall promptly inform a parent or guardian of the child.” Id. § 4916(e)(1). The written records of the SRS investigation are placed in a registry of substantiated child abuse cases indexed by the name of the child, during the child’s minority, and by the name of the perpetrator. See id. § 4916(a), (g). Registry information may be provided to persons designated by the commissioner, see id. § 4916(d), and is available to day care providers for background checks on job applicants and staff. See In re Selivonik, 164 Vt. 383, 385 n.2, 670 A.2d 831, 833 n.2 (1995). Thus, placement of information in the registry represents a substantial stigma for the perpetrator, see id. at 387, 670 A.2d at 834, and a substantial privacy invasion for the abused child.

Under the State’s theory in this case, if two persons under sixteen years of age commit consensual, mutual sexual acts with each other, they are both guilty of statutory rape. Thus, under the child abuse reporting laws, any of the listed professionals who learn of the acts must report them to SRS or risk prosecution. SRS must notify each child’s parents and list both children in the child abuse registry as victims and perpetrators. In Selivonik, we noted the irony of maintaining confidential the fact and detail of a juvenile delinquency adjudication, while placing and disseminating information about the same juvenile in the child abuse registry. See id. Here the tension goes beyond irony. We seriously doubt that the Legislature intended to label a juvenile under sixteen years of age who engages in a sexual act a child abuser for life.

There is another strong indication that the Legislature did not intend this result. The State of Vermont, with approval of the Legislature, has accepted funds under the Family Planning Services and Population Research Act of 1970, P.L. 91-572, 84 Stat. 1504 (Dec. 24, 1970) (codified as 42 U.S.C. §§ 300 to 300a-5, 3505a, 3505b). Among the Act’s stated objectives are “to assist in making comprehensive voluntary family planning services readily available to all persons desiring such services” and “to develop and make readily available information ... on family planning ... to all persons desiring such information.” Id. § 2(1) and (5) (emphasis added). The program, also known as Title X of the Public Health Service Act, has served teenagers since its inception. See Planned Parenthood Federation of America, Inc. v. Heckler, 712 F.2d 650, 652 (D.C. Cir. 1983). Indeed, since enacting Title X, Congress has “frequently expressed its increasing concern about the still unmet family planning needs of sexually active teenagers,” amending the statute in 1978 to require that Title X projects offer “‘a broad range of acceptable and effective family planning methods and services (including . . . services for adolescents).’” Id. (quoting 42 U.S.C. § 300(a) and citing congressional committee reports from 1974 and 1975).

Notwithstanding statutory language encouraging family involvement in the provision of family planning services to teenagers, the federal courts have invalidated regulations requiring Title X grantees to notify parents or guardians before providing contraceptives to unemancipated minors. See id. at 660-61; New York v. Heckler, 719 F.2d 1191, 1196 (2d Cir. 1983). The D.C. Circuit put particular emphasis on Congress’s finding that “confidentiality [is] essential to' attract adolescents to the Title X climes,” without which the availability of family planning services to teenagers would be “severely undermined.” Planned Parenthood, 712 F.2d at 660. Under current federal regulations, a recipient of Title X funds may not require, whether pursuant to state law or otherwise, that parents give consent, or even be notified of, the services being provided. See County of St. Charles v. Missouri Family Health Council, 107 F.3d 682, 685 (8th Cir.), cert. denied, 522 U.S. 859 (1997); Does v. Utah Dep’t of Health, 776 F.2d 253, 255-56 (10th Cir. 1985); Parents United for Better Schools, Inc. v. School Dist. of Philadelphia Bd. of Educ., 978 F. Supp. 197, 208-09 (E.D. Pa. 1997).

At best, the State’s interpretation means that family planning providers are put in the position where they must abet the commission of a felony and may not disclose their assistance. At worst, they are placed between directly conflicting legal requirements: to disclose child abuse that they reasonably believe is occurring, and to comply with federal confidentiality requirements. We must question a statutory construction that would create such a conflict.

The second reason is that the State’s construction of 13 V.S.A. § 3252(a)(3) involves a breadth of prosecutorial discretion that raises serious concerns about whether the resulting prosecutions are consistent with equal protection of the law. In this case, the prosecutor was candid that he believed G.T. had violated § 3252(a)(1), which provides:

(a) A person who engages in a sexual act with another person and

(1) Compels the other person to participate in a sexual act:

(A) Without the consent of the alñer person; or

(B) By threatening or coercing the other person

commits a felony. He chose to charge the case under § 3252(a)(3) because it creates a strict liability offense which is easy to prove. Because sexual conduct is private, prosecution necessarily arises from complaints. The prosecutor added at argument that the Windham County State’s Attorney’s office receives numerous complaints to prosecute teenagers under § 3252(a)(3), usually from parents, but does so only when there is evidence of coercion or a lack of true consent. Thus, the prosecutor’s office brings delinquency proceedings only when it believes the juvenile has acted without the consent of the other juvenile in violation of § 3252(a)(1)(A) or by coercing the other juvenile in violation of § 3252(a)(1)(B), but it never charges the juvenile committed either crime. Instead, it charges that the juvenile committed a violation of § 3252(a)(3) so that it does not have to prove the presence of the exact elements it found to justify the prosecution. Thus, the prosecutor determines what crime the juvenile has committed, but charges in such a way as to ensure that the juvenile never has the opportunity to show that he or she did not commit the crime found by the prosecutor.

Although we have only a limited record here, we note that the selective enforcement of the underlying statute has the hallmarks that other courts have relied upon to find discriminatory prosecution. See, e.g., People v. Acme Markets, Inc., 334 N.E.2d 555, 558 (N.Y. 1975) (discriminatory enforcement found where Sunday sales law was unenforced, save upon complaint); State v. Vadnais, 202 N.W.2d 657, 659-60 (Minn. 1972) (exclusion of class of violators intended to be included was discriminatory enforcement). We are not, however, suggesting that we should impose limits on prosecutorial discretion; we are questioning instead a statutory interpretation that necessarily results in this kind of enforcement administration. It is one thing to give discretion in enforcing a legislatively defined crime; it is quite another to give to prosecutors the power to define the crime. See In re P.M., 156 Vt. at 315, 592 A.2d at 868 (Dooley, J., dissenting). As Professor Sanford H. Kadish observed in his seminal work on police discretion:

One kind of systematic nonenforcement by the police is produced by criminal statutes which seem deliberately to overcriminalize, in the sense of encompassing conduct not the target of legislative concern, in order to assure that suitable suspects will be prevented from escaping through legal loopholes as the result of the inability of the prosecution to prove acts which bring the defendants within the scope of the prohibited conduct. A prime example are laws prohibiting gambling. . . .

Insofar as such laws purport to bring within the condemnation of the criminal statute kinds of activities whose moral neutrality, if not innocence, is widely recognized, they raise basic issues of a morally acceptable criminal code. Moreover, these laws are in effect equivalent to enactments of a broad legislative policy against, for example, undesirable gambling, leaving it to the police to further that policy by such arrests as seem to them compatible with it. From one point of view such statutes invite a danger cognate to that of defining a crime by analogy, augmented by the fact that it is the policeman who is defining criminal conduct rather than a court. That no actual abuse has been demonstrated in police administration of an overdrawn statute, such as gambling, would not seem to answer the moral and precedential objections to this tactic, any more than the fact that courts in states where the doctrine of common law crimes exists have not in recent years abused it would answer the objections to this doctrine.

S. Kadish, Legal Norm, and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 909-11 (1962). The preferable response to this kind of discretion is to reduce it by narrowing the ambit of the statute. See N. Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 U.C.L.A. L. Rev. 1, 12 (1971).

The third reason to question the plain meaning of § 3252(a)(3) is that prosecution for consensual sexual acts between juveniles raises important privacy concerns that implicate constitutional rights. The United States Supreme Court has held that “the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults,” Carey v. Population Servs. Int'l, 431 U.S. 678, 693 (1977), in striking down a New York statute which prohibited distribution of contraceptive devices to minors. Although the Court explic itly did not decide whether minors have a constitutional right to engage in consensual sexual behavior, see id. at 694 n.17, an outright prohibition on sexual activity appears inconsistent with the rationale for the decision. See In re Pima County Juvenile Appeal, 790 P.2d 723, 733-34 (Ariz. 1990) (en banc) (Feldman, J., dissenting).

We have not had occasion to determine the extent to which privacy is protected generally under the Vermont Constitution, see State v. Barlow, 160 Vt. at 528, 630 A.2d at 1300, although other states have found such protection even in the absence of a specific privacy provision. See, e.g., Powell v. State, 510 S.E.2d 18, 22 (Ga. 1998). In Barlow, a statutory rape case involving an adult defendant, we did not decide whether minors have a right to privacy in sexual matters under the Vermont Constitution because we concluded that the state had a compelling interest in protecting minors that was served by the statute at issue. 160 Vt. at 528, 630 A.2d at 1300. We noted concerns about the dangers of pregnancy, venereal disease, damage to reproductive organs, the lack of considered consent, heightened vulnerability to physical and psychological harm, and the lack of mature judgment among the many significant interests of the state. See id. (citing State v. Munz, 355 N.W.2d 576, 585 (Iowa 1984)). We also stressed our concern for protecting the well-being of minors from exploitation. See id. at 529, 630 A.2d at 1300 (quoting State v. Searles, 159 Vt. at 528, 621 A.2d at 1283.

Although we again do not decide whether sexual privacy is protected by the Vermont Constitution, we do not believe that Barlow is necessarily inconsistent with such protection for consensual sexual activity between minors. In a case relied upon in Barlow, the Florida Supreme Court found that a minor’s right to privacy did not protect an adult from statutory rape prosecution, even though the minor consented to the sexual activity. See Jones v. State, 640 So. 2d 1084, 1087 (Fla. 1994). When the court confronted a similar question in a case where the sexual activities were between juveniles under the age of consent, the court found that the State failed to demonstrate the compelling state interest to justify this application of the statutory rape statute, noting that the statute was “not being utilized as a shield to protect a minor, but rather. . . as a weapon to adjudicate a minor delinquent.” B.B. v. State, 659 So. 2d 256, 260 (Fla. 1995). But see J.A.S. v. State, 705 So. 2d 1381, 1385 (Fla. 1998) (statutory rape charge of fifteen-year-old boy for having consensual sex with twelve-year-old girl did not violate boy’s privacy rights).⁴

We have avoided construction of a statute that threatens its constitutionality. See, e.g., Central Vermont Ry. v. Department of Taxes, 144 Vt. 601, 604, 480 A.2d 419, 421 (1984); see also Jones v. United States, 526 U.S. 227, 239 (1999) (courts should avoid construing statutes in a manner to create serious constitutional problems, whenever possible). However we ultimately decide whether the sexual privacy of juveniles is protected under the Vermont Constitution, we must take into account the constitutional question in construing 13 V.S.A. § 3252(a)(3) in the case before us.

We return to the statutory construction question before us. We have expressed the plain meaning rule as a presumption, Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999), recognizing that in some circumstances the literal meaning of the words employed cannot prevail. We are faced with the unique confluence of three factors that weigh heavily against the plain meaning rule: (1) statutes that deal with the same subject matter should be construed together to harmonize them, see, e.g., In re 1650 Cases of Seized Liquor, 168 Vt. 314, 321, 721 A.2d 100, 105 (1998) (we “consider the purpose of the statute and look to the broad subject matter of the law, its effects, consequences and reason and spirit of the law”); Central Vermont Hosp., Inc. v. Town of Berlin, 164 Vt. 456, 459, 672 A.2d 474, 476 (1995); (2) statutes should be construed so as not to reach absurd results manifestly unintended by the Legislature, see Roddy v. Roddy, 168 Vt. 343, 347, 721 A.2d 124, 128 (1998); and (3) statutes should be construed to avoid constitutional difficulties, if possible, see supra. In exceptional circumstances, we must narrow the reach of a broadly-worded statute to make it consistent with other statutes or to avoid serious questions of constitutionality. State v. Read, 165 Vt. 141, 148-49, 680 A.2d 944, 948-49 (1996); In re P.M., 156 Vt. at 307-08, 592 A.2d at 864. We believe this is such a case.

Our analysis parallels that of the Maryland Court of Appeals in Schochet v. State, 580 A.2d 176, 183 (Md. 1990), which found that a broadly worded statute criminalizing fellatio did not apply to consensual, noncommercial, heterosexual activity between adults in the privacy of the home. The court noted that the “very broad and sweeping nature” of the language, with no specifics, renders the statute “reasonably susceptible to different constructions” and susceptible to constitutional challenge, and narrowed it to avoid the constitutional question. See id.; see also People v. Lino, 527 N.W.2d 434, 441 (Mich. 1994) (Levin, J., concurring) (accepting similar construction of Michigan statute).

In order to make § 3252(a)(3) consistent with the child abuse reporting statute and the legislatively-approved family planning services for minors, and to avoid the real possibility of discriminatory enforcement and interference with the privacy rights of defendant and the asserted victim, we construe subsection (a)(3) as inapplicable in cases where the alleged perpetrator is also a victim under the age of consent. We agree with the Florida Supreme Court that the statute is intended as a shield for minors and not a sword against them.

We emphasize that we reach this result as a fair construction of the relevant legislation as it is currently worded. The Legislature has the power to specifically address the issue before us by amendment to the statute. If it decides that juveniles are both perpetrators and victims of statutory rape when they engage in consensual intercourse, it can clarify the apparently inconsistent child abuse reporting and family planning laws.

Meanwhile, unlike the dissent, we doubt that our decision -will have any effect on other cases because, as discussed above, the prosecutor has made clear that he will bring cases like this only where he believes there has been nonconsensual or coerced sexual acts between persons under the age of sixteen, conduct that is a crime under 13 V.S.A. § 3252(a)(1). We also doubt that we impose upon prosecutors by forcing them to prove the crime they believe occurred, rather than allowing them to rely on the relaxed burden of proof under § 3252(a)(3).⁵ This decision, however, will bring needed clarity to the obligation to report child sexual activity as child abuse under the child abuse reporting statutes.⁶

Reversed.

Footnotes

1

The term “sexual act” in § 3252 is broader than sexual intercourse, including “any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another,” 13 V.S.A. § 3251(1). No data are available on the percentage of juveniles who have committed a sexual act by their sixteenth birthday.

2

We agree with the dissent that a fifteen-year-old juvenile does not face a penalty of twenty years in jail. However, the juvenile can be placed in a “treatment, rehabilitative, or educational institution or facility,” 33 YS.A. § 5529(a)(3), and the adjudication of delinquency becomes part of the juvenile’s record available to the court in a future sentencing proceeding. Id. § 5536(b)(3).

3

To avoid the conflict between the reporting law and the coverage of statutory rape, the dissent suggests that we interpret rape, as defined in § 4912(8), as not including statutory rape, and the professional’s duty to report abuse, a term explicitly defined in § 4912(2), as sufficiently discretionary to allow the professional not to report statutory rape in some instances. If these are the proper interpretations of the statutes involved, they deviate far more from the plain meaning of the Legislature’s words than the deviation from the language of 13 YS.A. § 3252(a)(3) accepted in this opinion.

4

The dissent suggests that we ignore B.B. and recognize J.A.S. because the facts here are closer to those in the latter case. Our task is neither to resolve the tension between Florida decisions nor to determine whether it would be constitutional to prosecute G.T. on the facts before us. Instead, our responsibility is to construe 13 VS.A. § 3252 in light of the factual circumstances that would be covered by alternative interpretations. If we construe the statute to allow prosecution based on the facts in J.A.S., we must also construe it to allow prosecution on the facts of B.B.

5

On this point, we apparently differ with the dissent, which argues that there will be cases in which the State will not be able to prove coercion or lack of consent despite an age difference between the juveniles. The one example before us shows to the contrary since the juvenile court found the elements of coercion, despite not having to make these findings under § 3252(a)(3), so that the prosecutor would have prevailed under § 3252(a)(1)(B). In essence, the dissent seeks to define a crime, different from that in either § 3252(a)(1) or 3252(a)(3), a crime that the State never has to prove. This reinforces our point that the dissent’s construction of the statute necessarily creates an overly-broad concept of prosecutorial discretion.

6

G.T.’s motion to vacate his delinquency adjudication is denied as moot.