People v. Worrell

340 N.W.2d 612, 417 Mich. 617

• Court: Michigan Supreme Court
• Decided: November 21, 1983
• Docket: 68630, (Calendar No. 11)
• Status: Published

Opinions

Kavanagh, J.

The dissent in this case, as the decision of the Court of Appeals, is based on the premise that a charge of statutory rape or criminal sexual conduct is made out by evidence of penetration of a female under the statutory age without regard to her consent. This is not disputed. The law traditionally has held that the consent of a person of such tender years to such acts will not be recognized and accordingly that consent is no defense to such a charge.

Likewise, consent is no defense to a charge of attempt to effect such sexual penetration.

However, proof of penetration or attempt to penetrate will support conviction of the crime of assault with intent to effect such connection only if the assault be made out.

The cases cited by the Court of Appeals and the dissent, by and large, posit assault¹ and hence do not address the question presented here. People v McDonald, 9 Mich 150 (1861), is the only case brought to our attention which involves consensual sexual activity and a charge Of assault with intent to commit statutory rape. The Court said that since consent is no defense to the crime of statutory rape, neither is it a defense to a charge of assault with intent to commit the crime. While it is true that the consent of the minor is irrelevant to a charge of statutory rape or attempt to commit statutory rape, it is relevant to a charge of assault with intent to commit statutory rape._

" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ 3 Cyc, p 1020.

" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.’ 2 Bishop, Criminal Law (7th ed), § 23.” People v Carlson, 160 Mich 426; 125 NW 361 (1910).

If the other person is a willing partner to the physical act, there can be no assault because there is no reasonable apprehension of immediate injury. The McDonald Court apparently viewed the offense there charged as an attempted statutory rape. Yet no reason is given for ignoring the ordinary meaning of the word assault. We are not persuaded by the reasoning of McDonald. Instead, we feel constrained to accord the word assault in our present statute, MCL 750.520g; MSA 28.788(7), its commonly understood meaning, for to define assault as does the dissent makes the offense identical to attempted criminal sexual conduct in the third degree. This would make MCL 750.520g(l); MSA 28.788(7)(1) and MCL 750.92; MSA 28.287 redundant, and their provisions for penalties of ten years and five years, respectively, equally applicable with no principled basis for distinction. We will not ascribe such an intention to the Legislature.

Assault and consent are mutually exclusive. There can be no assault without proof of force or threat thereof. Accordingly, while consent will not amount to a defense to the charge of criminal sexual conduct or attempt to commit it, it is a defense to every charge of assault.

The suggestion that to require proof of force or offer of force in every charge of assault somehow reduces the protection of children of tender years intended by this legislation is chimerical. Persons of all ages are equally protected under our assault laws. The consent of persons under 16 years to sexual intercourse is legally ineffective. The consent of persons under 13 years to any sexual contact is equally ineffective legally.

This is the protection the Legislature ordained. We are not free to enforce our own values in the name of construction even to provide some perceived greater protection.

Because the sexual activity here is not claimed to be other than consensual, there is no evidence to support a verdict of assault, and hence it was error to instruct on it.

This conviction is set aside, and the defendant discharged because the refusal of the jury to find the defendant guilty of criminal sexual conduct or attempted criminal sexual conduct precludes his retrial on those charges.

Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Kavanagh, J.

1 People v Courier, 79 Mich 366, 368; 44 NW 571 (1890). "Sexual intercourse is sufficient, and if an assault is made, with the design of sexual intercourse with a child under the statutory age, the crime of an assault with intent to carnally know and abuse the child is committed.” (Emphasis supplied.) People v Carlson, 160 Mich 426; 125 NW 361 (1910).