State v. Wilkins

655 S.W.2d 914, 1983 Tenn. LEXIS 712
Tennessee Supreme Court·Decided August 29, 1983·Published·Cited by 52 cases

Opinions

OPINION

COOPER, Justice.

In this appeal the state challenges the trial court’s dismissal of the aggravated rape count of an indictment against defendant. The trial judge held that the definition of aggravated rape in T.C.A. § 39-3703 (now § 39-2-603) is so vague that it violates the due process clauses of our federal and state constitutions. U.S. Const, amend. Y; Tenn. Const, art. 1, § 8. The propriety of this ruling is the sole issue presented for review.

Aggravated rape was first made a distinct statutory offense in Tennessee by § 3 of chapter 429 Public Act 1979. The offense was codified as T.C.A. § 39-3703. In 1980 the original statute was replaced with the present version. Ch. 788, § 2 Pub. Act 1980. Defendant was indicted under the portion of the statute which provides that “[ajggravated rape is unlawful sexual penetration of another accompanied by any one of the following circumstances: ... (2) the defendant causes personal injury to the victim.” T.C.A. § 39-2-603(a)(2). Rape is made a separate offense by T.C.A. § 39-2-604. Sexual penetration and personal injury are defined in T.C.A. § 39-2-602.

Defendant insists that the aggravated rape statute is unconstitutionally vague and overbroad. The objection to the statute is premised on its failure to specify that the proscribed sexual penetration must be accomplished by force or coercion and must be against the will or without the consent of the victim. Because of this omission, defendant insists that the statute fails to give reasonable notice of the conduct prohibited thereby and that it proscribes consensual activity undertaken in private by adults, or within a marital relationship, where one partner suffers personal injury. We recently held that the words of the challenged provision “are sufficiently precise to put an individual on notice of prohibited activities.” State v. Thomas, 635 S.W.2d 114, 116 (Tenn.1982). We reaffirm our holding in Thomas and conclude that, as applied to this defendant, the aggravated rape statute is constitutional.

The fair warning requirement embodied in the due process clause prohibits states from holding an individual criminally responsible for conduct which a person of common intelligence “could not reasonably understand to be proscribed” by an enactment. United States v. Harris, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also State v. McDonald, 534 S.W.2d 650, 651-52 (Tenn.1976), cert. denied 425 U.S. 955, 96 S.Ct. 1733, 48 L.Ed.2d 200, reh. denied 425 U.S. 1000, 96 S.Ct. 2219, 48 L.Ed.2d 826 (1976); Paine v. Fox, 172 Tenn. 290, 112 S.W.2d 1 (1938); State v. Maloney, 108 Tenn. 82, 88, 65 S.W. 871, 872 (1901). A statute meets the requirements of due process, however, if reasonable notice of prohibited conduct is given and the statutory boundaries are sufficiently distinct for judicial administration. State v. Hinsley, 627 S.W.2d 351, 354 (Tenn.1982). The due process prohibition

does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for ‘[i]n most English words and phrases there lurk uncertainties.... Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what statutes may compel or forbid.

[916]*916Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). Absolute precision in drafting prohibitory legislation is not required since prosecution could then easily be evaded by schemes and devices. State v. Netto, 486 S.W.2d 725, 728 (Tenn.1972).

In determining whether a statute violates due process it is appropriate to consider the interpretation given the statute by the highest state court. Wain wright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973). Judicial interpretation by the state supreme court can give sufficiently clear notice of what is proscribed by a statute to satisfy the due process notice requirement. Rose v. Locke, 423 U.S. 48, 52, 96 S.Ct. 243, 245, 46 L.Ed.2d 185 (1975). “ ‘That is not uncertain or vague which by orderly processes of litigation can be rendered sufficiently definite and certain for purposes of judicial decision.’ ” Donathan v. McMinn County, 187 Tenn. 220, 213 S.W.2d 173, 176 (1948). Also, “ ‘[t]he use of common experience as a glossary is necessary to meet the practical demands of legislation.’ ” State v. Netto, 486 S.W.2d 725, 729-30 (Tenn.1972).

We have upheld a statute making it a criminal offense to “ ‘unlawfully sexually molest or fondle’ ” a child. Sissom v. State, 210 Tenn. 556, 360 S.W.2d 227 (1962). In Sissom we concluded that due process was satisfied where a normal person would intend and recognize defendant’s conduct as sexual molesting and fondling. Similarly, a proscription of crimes against nature has been repeatedly upheld. Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340 (1955) (fellatio proscribed by statute); Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973) (sodomy proscribed); Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973), aff’d sub nom. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) (cunnilingus proscribed). In Stephens the court observed that the term crime against nature “is a euphemism for the particular acts that constitute the offense of sodomy at common law. Therefore it is necessary to resort to the common law for a definition of the crime and a description of the acts.” Stephens at 543 (emphasis added).

At common law rape was defined as “the unlawful carnal knowledge of a woman over the age of ten years forcibly and without her consent, or, as otherwise expressed, by force, or forcibly, and against her will, or such knowledge of a female child under the age of ten years, either with or without her consent.” 75 C.J.S., Rape, § 1, p. 461.

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State v. Wilkins, 655 S.W.2d 914, 1983 Tenn. LEXIS 712 (Tenn. 1983).

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