Wilkinson v. People of the VI

2025 V.I. 4

Opinions

Opinion

For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

LLOYD S. WILKINSON ) S.Ct. Crim. No. 2017-0018 Appellant/Defendant ) Re: Super. Ct. Crim. No. 062/2015 (STT)

)

v )

)

PEOPLE OF THE VIRGIN ISLANDS )

Appellee/Plaintiff. )

)

On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas & St. John Superior Court Judge: Hon. Kathleen Mackay

Argued: July 9, 2019 Filed: January 28, 2025

Cite as 2025 VI 4

BEFORE RHYS S. HODGE, Chief Justice, MARIA M. CABRET, Associate Justice; and IVE ARLINGTON SWAN, Associate Justice

APPEARANCES

Amelia B. Joseph, Esq Territorial Public Defender’s Office St. Croix, U.S.V.I Attorney for Appellant,

Su-Layne Walker, Esq. (Argued) Ian S. A. Clement, Esq Assistant Attorney General St. Thomas, U.S.V.I Attorneys for Appellee

OPINION OF THE COURT

CABRET, Associate Justice

{jl Appellant Lloyd S. Wilkinson (“Wilkinson”) appeals his sentence for first degree unlawful

sexual contact in violation of Title 14 V.LC. § 1708(a)(1), arguing that, following our decision in

Opinion of the Court

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Titre v. People, 70 V.1. 797 (V.I. 2019), his conviction on this charge must be vacated in

accordance with the requirements of 14 V.I.C. § 104 and the Double Jeopardy Clause of the Fifth

Amendment of the United States Constitution. Additionally, Wilkinson appeals his conviction for

first degree rape in violation of 14 V.I.C. §1701(a)(2), arguing that § 1701 is unconstitutionally

underinclusive. Specifically, he contends that § 1701 violates his Fourteenth Amendment right to

equal protection under the law because subsection (c) of the statute creates a marital exemption

from the crime of first degree rape that unreasonably and arbitrarily subjects him to punishment

for his conduct, while others who engage in the same conduct prohibited by the statute are exempt

from punishment merely because they are married to the victim. For the reasons that follow, we

vacate Wilkinson’s conviction for first degree unlawful sexual contact and remand this matter to

the Superior Court for resentencing. Additionally, although we agree with Wilkinson that the

marital exemption provided in the first degree rape statute violates the equal protection clause of

the Fourteenth Amendment, we hold that the appropriate remedy is to strike subsection (c) from

the statute and affirm his conviction for first degree rape under the remaining subsections of §

1701

I. FACTUAL AND PROCEDURAL BACKGROUND

q2 Following a jury trial on October 17, 2016, Wilkinson was found guilty of first degree rape

in violation of 14 V.ILC. § 1701(a)(2), first degree assault in violation of 14 V.I.C. § 295(3), and

first degree unlawful sexual contact in violation of 14 V.I.C. § 1708(a){1), for the rape and assault

of C.D. on the morning of February 11, 2015.! The Superior Court, in its February 2, 2017

' We note that both the February 24, 2015 information and February 2, 2017 judgment and commitment in this case both refer to §§ 1701(2) and 1708(1), rather than to §§ 1701(a)(2) and 1708(a)(1). In 2013, 14 V.LC. § 1701 and 14 V.LC § 1708 were amended to include the existing numbered paragraphs within the statutes’ new subsection “(a).’ Act No. 7517, § 1(c)(3) (Reg. Sess. 2013). Therefore, for clarity and simplicity, throughout this opinion we refer to the statutes by their alphanumerical subsections as they appear in the current version of the Virgin Islands Code

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judgment and commitment, sentenced Wilkinson to a period of thirty years’ incarceration on his

conviction for first degree rape and to a period of five years’ incarceration on his conviction for

first degree assault, to be served consecutively. The court further sentenced Wilkinson to a period

of five years’ incarceration on his conviction for first degree unlawful sexual contact, but stayed

imposition of the sentence. Wilkinson timely filed a notice of appeal

II. JURISDICTION AND STANDARD OF REVIEW

q3 We have jurisdiction over this criminal appeal pursuant to Title 4, Section 32(a) of the

Virgin Islands Code, which provides that “[t]he Supreme Court shall have jurisdiction over all

appeals arising from final judgments, final decrees or final orders of the Superior Court, or as

otherwise provided by law.” Because the Superior Court’s February 2, 2017, judgment and

commitment adjudicates all charges, it is a final order within the meaning of 4 V.ILC. § 32(a)

Williams v. People, 58 V.1. 341, 347 (V.1. 2013). We therefore have jurisdiction over this appeal

Although we generally exercise plenary review over questions of law, including constitutional

questions, where an appellant fails to raise a constitutional issue before the Superior Court, our

review is limited to plain error. Celestine v. People, 73 V.1. 500, 505 (V.I. 2020) (citing Carty v

People, 56 V.1. 345, 354 (V.L 2012))

Il. DISCUSSION

94 On appeal, Wilkinson argues—and the People concede—that pursuant to our decision in

Titre, he is entitled to resentencing to vacate his conviction for first degree unlawful sexual contact

Wilkinson also contends that 14 V.I.C. § 1701 is unconstitutionally underinclusive and therefore,

that the Superior Court erred in convicting him of first degree rape under this statute. Specifically,

he argues that the marital exemption provided in subsection (c) of § 1701 violates his right to equal

protection of the law under the Fourteenth Amendment of the Constitution of the United States. In

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response, the People contend that § 1701{c) does not constitute a martial exemption, but concede

that if it does, then § 1701 would violate the Equal Protection Clause.” Both parties also agree that

if we determine that the first degree rape statute is unconstitutional, the appropriate remedy is to

strike subsection (c) from the statute and uphold the remaining, constitutionally valid provisions

of § 1701. We address each argument in turn

A. Resentencing in Light of Titre v. People

5 The Superior Court’s February 2, 2017, judgment and commitment convicted Wilkinson

of first degree rape, first degree assault, and first degree unlawful sexual contact. The trial court

imposed sentence for the rape and assault charges while staying execution of Wilkinson’s sentence

for unlawful sexual contact in accordance with the law prevailing at the time, as detailed in our

previous decision in Williams v. People, 56 V.1. 821, 834 n.9 (V.I. 2012) (“[T]he proper procedure

is to sentence the defendant for one offense and stay the imposition of any punishment for all the

remaining offenses which arose out of the same act or indivisible course of conduct.”). However,

during the pendency of this appeal, we decided Titre, overruling the previous “merger-and-stay”

approach outlined in Williams, 56 V.1. at 834 n.9, and concluding that the better approach is to

vacate any lesser convictions that would implicate 14 V.I.C. § 104 or the double jeopardy clause

of the Fifth Amendment to the Constitution of the United States. Titre, 70 V.I. at 808-09

Additionally, as we have previously explained, the rule announced in Titre applies retroactively to

> Although the briefs of the parties on appeal frame the issue in terms of whether § 1701(c) violates the Equal Protection Clause, this is not entirely accurate. Subsection (c) of § 1701, standing alone, clearly cannot violate the Equal Protection Clause, because subsection (c), read in isolation from the preceding subsections, neither proscribes any conduct nor provides for any form of punishment. Indeed, without subsections (a) and (b), subsection (c} would be meaningless and without legal effect, purporting to provide an affirmative defense to a nonexistent crime. More precisely then, the issue is whether § 1701, as a whole, violates the Equal Protection Clause as a result of the inclusion of the marital exemption provided in subsection (c) of the statute

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all pending cases, including this appeal. Celestine, 73 V.I. at 511. Accordingly, we remand this

matter to the Superior Court for resentencing in accordance with our decision in Titre

B. Marital Exemption for First Degree Rape

{6 Wilkinson argues on appeal that 14 V.I.C. § 1701(c) creates a marital exemption’ to the

crime of first degree rape that violates his rights under the equal protection clause of the Fourteenth

Amendment because he is subject to punishment for his conduct “while others ... who engage in

the same conduct escape punishment merely because they are married to the victim,” despite the

lack of any rational basis for distinguishing between these two groups. (Appellant’s Br. at 13.) The

People assert that § 1701(c) does not constitute a marital exemption to the rape statute and therefore

does not violate the equal protection clause. Thus, our first task is to ascertain the meaning and

effect of § 1701(c)

q7 Section 1701(a) of title 14 codifies the elements of the crime of rape in the first degree,

including § 1701(a)(2)—the subsection under which Wilkinson was convicted—which provides

“Whoever perpetrates an act of sexual intercourse or sodomy with a person...when the person's

resistance is forcibly overcome... is guilty of rape in the first degree and shall be imprisoned not

less than 10 years nor more than 30 years . ” In turn, § 1701(c) provides that “[s]pousal consent

shall be an affirmative defense in the event the persons are legally married pursuant to the

provisions of title 16, chapter 1 of the Virgin Islands Code.”

48 Our interpretation of any statute begins with the plain and ordinary meaning of the statutory

language. Thomas v. People, 69 V.I. 913, 923 (V.I. 2018). “If the statutory language is

3 The term “marital exemption” is used in this context, as it has often been used by jurists and legal scholars, to describe a statutory provision that exempts married persons from punishment for raping or sexually assaulting their spouses.

ie 701(b) provides for heightened punishment of repeat offenders and is not relevant to the issues raised in

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unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed.”

In re L.O.F., 62 V.1. 665, 661 (V.I. 2015). However, “[t]echnical words and phrases and such

others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and

understood according to their peculiar and appropriate meaning.” Willis v. People, 71 V.1. 789

797 (V.I. 2019) (quoting Thomas, 69 V.I. at 923). In analyzing a statute, “we must give effect to

every provision, making sure to avoid interpreting any provision in a manner that would render

it—or another provision—wholly superfluous and without an independent meaning or function of

its own.” Thomas, 69 V.I, at 924 (internal quotation marks omitted). Additionally, even “where a

statutory scheme is plain and internally consistent, no statute should be read literally if such a

reading is contrary to its objective and this Court must consider whether applying the statute's

literal language leads to absurd consequences or is otherwise inconsistent with the Legislature's

intent.” Heyliger v. People, 66 V.1. 340, 350 (V.I. 2017)

49 Here, the People assert, in somewhat conclusory fashion, that the relevant language

“spousal consent shall be an affirmative defense...”-— does not create a marital exemption to the

rape statute. The People concede that the language of § 1701(c) “may not be ideal,” but insist that

it cannot constitute a marital exemption because the synopsis of the legislative act adding

subsection (c) describes the act as “adding protection for spouses, men and women, who are the

victims of actions that constitute rape or unlawful sexual contact in aggravated domestic violence

instances.” Act No. 7517, preamble. However, the descriptive synopsis or preamble included in a

legislative bill, much like the titles and headings of the statute itself, while potentially probative of

the legislature’s intent, is not a part of the statute and therefore does not carry the force of law. See

1 V.LC. § 45(a)(2)-(3) (“The following matter does not constitute part of the law ... the descriptive

headings or catchlines, other than the section numbers contained therein, immediately preceding

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the texts of the individual sections of this Code; [and] any descriptive headings or catchlines

immediately preceding the texts of any subsections or paragraphs of sections of this Code.”); Den

v. Urison, 2 N.J.L. 212, 219-20 (1807) (observing that the “preamble cannot restrain or control”

the “expressed intentions of the [l]egislature” as indicated by the words of an Act that are contained

in one or more of its enactment clauses,” but that the preamble may be consulted to gain insight

where the intention of the legislature, based on the language appearing in an enactment clause, is

equivocal); Jn re Allen, 1 V.I. 212, 227-28 (D.V.I. 1929) (observing that “[w]here a statute is of

doubtful meaning and susceptible upon its face of two constructions the court may look into prior

and contemporaneous [legislative] acts, the reasons which induced the act in question, the

mischiefs intended to be remedied [by it], the extraneous circumstances, and the purpose intended

to be accomplished by it, to determine its proper construction,” but also that “where the

[legislative] act is clear upon its face, and when standing alone it is fairly susceptible of but one

construction, that construction must be given it,” and further emphasizing that “reasons for and the

significant circumstances leading up to the enactment may be noticed in confirmation of the

meaning conveyed by the words used” in it).°

q10 Although the People fail to offer any suggestion as to how the language of § 1701(c) might

be interpreted in a manner that would not create a marital exemption to the rape statute, at least

one such possible interpretation may be drawn from the plain and literal meaning of the statutory

language itself. Putting aside the legal and historical underpinnings of the notion of spousal or

> The enactment clause of legislation “denote[es] that an act is taking effect as law[; t]he most common enacting words are ‘Be it enacted that Black’s Law Dictionary 606 (9th ed. 2009) © The People also argue that because Act No. 7517 eliminated from the first degree rape statute the requirement that the victim be “a person not [the perpetrator’s] spouse,’ we should conclude, despite the addition of § 1701(c), that the Legislature intended to eliminate any marital exemption from the statute. Curiously, while it is true that prior to the 2013 amendments, several sections of title 14, chapter 85, including § 1700 (aggravated rape in the first degree), § 1700a (aggravated rape in the second degree), § 1702 (rape in the second degree), and § 1703 (rape in the third degree) contained the “person not his spouse” language, it appears that § 1701 never included such language

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matrimonial consent, in the ordinary usage of the English language, devoid of context, the term

spousal consent may reasonably be interpreted literally, to mean simply the consent of the spouse

Consent, in turn, is defined as: “[C]ompliance in or approval of what is done or proposed by

another;... the voluntary agreement or acquiescence by a person of age or with requisite mental

capacity who is not under duress or coercion and [usually] who has knowledge or

understanding Merriam—Webster's Dictionary of Law 97 (Collector's ed. 2005). Similarly,

Black’s Law Dictionary defines consent as “A voluntary yielding to what another proposes or

desires; agreement, approval, or permission regarding some act or purpose, esp[ecially] given

voluntarily by a competent person; legally effective assent.” Black's Law Dictionary 380 (11th ed

2019). Thus, interpreting the term spousal consent literally, § 1701(c) would essentially provide

that a married individual cannot be punished for “perpetrat[ing] an act of sexual intercourse or

sodomy with [his or her spouse]” under the circumstances described in § 1701(a)(2) if he or she

proves that his or her spouse voluntarily agreed to engage in that act

qi1 Upon closer examination however, this literal interpretation of § 1701(c) fails to withstand

scrutiny under the canons of statutory construction as it either leads to absurd results that the

Legislature could not have intended, or alternatively, renders § 1701(c) superfluous or without

meaning when paired with the language of § 1701(a)(2). We have previously observed that consent

is a defense to first degree rape. In Williams v. Gov't of the V.L, 55 V.I. 721 (V.I. 2011), the

appellant argued that the trial court erred in failing to instruct the jury separately on the defense of

consent. However, we explained that in cases of first-degree rape, “the concept of consent is

inherently addressed in the elements of the crime charged.” /d. at 729 (citing United States v

Martin, 528 F.3d 746 (10th Cir. 2008)). “Although the language of section [1701{a)(3)] is devoid

of the words ‘consent’ and ‘lack of consent,’” the statutory language, ‘when the person's resistance

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is prevented by fear of immediate and great bodily harm,’ is synonymous with a ‘lack of consent.’”

Id. at 729-30. Therefore, we concluded that the trial court’s jury instruction sufficiently stated the

law and was not plainly erroneous. /d. at 732

ql2 Here, the distinguishing element of first degree rape under § 1701(a)(2)—specifically

"when the person's resistance is forcibly overcome’”—just like the distinguishing element of §

1701{a)(3) as discussed in Williams, necessarily implies a lack of consent. Conversely then, a

showing of consent necessarily negates the element of overcoming forcible resistance in §

1701(a)(2) just as consent necessarily negates the element of preventing resistance by fear in §

1701(a)(3). Thus, because a showing of consent negates an essential element of the crime, consent

constitutes a classic, common law defense to first degree rape in violation of §§ 1701(a)(2) and

1701(a)(3)

413 Yet, if consent constitutes a general defense to first degree rape irrespective of any marital

relationship between the perpetrator and the victim, then the literal interpretation of § 1701{c)}—

providing that the victim’s voluntary agreement to the sexual act constitutes an affirmative defense

to a charge of first degree rape in the event that the perpetrator and the victim are legally married

produces an absurd result, insofar as consent must be presented as an affirmative defense in cases

of spousal rape, but remains an ordinary, common law defense to rape in all other cases. As

affirmative defenses -- in contrast to ordinary, common law defenses -- require a defendant to

affirmatively plead and prove a set of facts to defeat the legal consequences of his or her otherwise

unlawful conduct, this literal interpretation of § 1701(c) would seemingly shift the burden of proof

as to an essential element of the crime in spousal rape cases from the prosecution to the defendant;

effectively requiring the accused to prove his or her innocence. Given that the presumption of

innocence is axiomatic to our system of criminal justice, there can be no doubt that the Legislature

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did not intend to produce this absurd result in enacting § 1701{c). See Milligan v. People, 69 V.1

779, 786 n.4 (V.I. 2018) (collecting cases affirming the essential, fundamental role of the

presumption of innocence in the criminal justice system)

ql4 Additionally, if the term spousal consent is interpreted literally, then the provisions of §

1701(c) are facially irreconcilable with the provisions of § 1701(a)(2), rendering one of the two

provisions superfluous and devoid of any real meaning or effect. Because a showing of consent

negates any showing that the victim’s resistance was forcibly overcome and vice versa, the statute

cannot simultaneously require that the prosecution prove that the victim’s resistance was forcibly

overcome and that the defendant prove that his or her spouse consented. Simply put, the statute

cannot place the burden of proof as to an essential element of the crime on both the prosecution

and the defendant at the same time. Giving effect to the literal meaning of § 1701(c) by requiring

defendants to affirmatively prove consent in spousal rape cases would effectively relieve the

prosecution of its burden to prove that the victim’s resistance was forcibly overcome and,

consequently, render § 1701(a)(2) a nullity. Conversely, upholding the prosecution’s burden to

prove that element would necessarily eliminate any requirement that the defendant affirmatively

prove consent, essentially reading the word “affirmative” out of § 1701(c). In turn, if spousal

consent—literally meaning the voluntary agreement of the spouse—merely constitutes a

traditional, common law defense to rape, then the word “spousal” in the term spousal consent is

also bereft of any meaningful effect because, as we explained in Williams, consent constitutes a

defense to rape regardless of the existence of any marital relationship between the perpetrator and

the victim. In effect, § 1701(c)—providing that “Spousal consent shall be an affirmative defense

in the event the persons are legally married pursuant to the provisions of title 16, chapter 1 of the

Virgin Islands Code”—-would stand for nothing more than the unremarkable proposition, already

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implicit in the language of § 170i(a)(2), that “consent shall be a defense.” Accordingly, because

the literal interpretation of §1701(c) either produces absurd results or renders significant portions

of the other statutory language superfluous, we do not hesitate to reject it as applied to prosecutions

under § 1701 (a)(2)

415 Instead, we must turn to the peculiar historical and legal meaning of the term “spousal

consent”. That is, a wife’s automatic, continuous, and irrevocable consent to sexual contact with

her husband implied solely by virtue of her marriage. Although shocking and offensive to the

modern conscience, this conception of spousal or matrimonial consent has, until recent decades,

largely persisted and survived in American criminal codes and judicial opinions as a kind of

vestigial remnant of archaic, draconian notions of matrimonial and property rights derived from

the common law of old England.’ The origins of the concept of spousal consent trace back to a

treatise written by the seventeenth century English jurist, Matthew Hale, in which he discussed the

crime of rape and potential defenses. He opined: “But the husband cannot be guilty of a rape

committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract

the wife hath given up herself in this kind unto her husband, which she cannot retract.” 1 MATTHEW

HALE, HISTORY OF PLEAS OF THE CROWN 629 (Giles Jacob ed. 1716). It is worth noting that Hale

cited no authority for this supposed rule, that no support for this rule has been found in the work

of earlier jurists, and that even Blackstone, writing in the following century, made no mention of

7 Since the 1980's, with a single exception discussed below, every court that has considered a challenge to this type of marital exemption, whether as a matter of common law or in the context of a constitutional challenge to a criminal statute, has struck down these marital exemptions for violating equal protection rights or for simply lacking any defensible justification in the modern common law. Nonetheless, as of 2011, only fourteen states had completely abolished all forms of marital immunity for sexual offenses, eschewing any distinction in the treatment of sex offenses committed between married persons and those committed between non-married persons, while thirty-five states and the District of Columbia retained some form of marital exemption—often eliminating marital exemptions for crimes involving forcible sexual penetration, but preserving marital immunity for other sexual crimes not involving penetration. See John F. Decker & PeterG. Baroni, "No" Still Means "Yes": The Failure of the "Non-Consent" Reform Movement in American Rape and Sexual Assault Law, 101 J. CRIM. L. & CRIMINOLOGY 1081, 1155 (2011)

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matrimonial consent despite discussing other statements made by Hale. See State v. Smith, 426

A.2d 38, 41 (N.J. 1981) (discussing the history of the marital exemption to the crime of rape at

English common law). Nonetheless, beginning with a decision of the Supreme Judicial Court of

Massachusetts in 1857, courts across the nation adopted and incorporated Hale’s concept of

matrimonial consent into the common law of their respective jurisdictions. See People v. Liberta,

474 N.E.2d 567, 572 (N.Y. 1984) (citing Commonwealth v Fogerty, 74 Mass. 489 (1857))

(examining the history of the adoption of the marital consent doctrine by various jurisdictions in

the United States). Since the time of Hale and even into the modern era, legal commentators have

repeatedly restated the spousal consent rule, albeit without any discussion of its merits. See Smith

426 A.2d at 41 (collecting sources)

ql6 Thus, given the long history of the use of the term “spousal consent”—or equivalent terms

such as matrimonial consent—in the common law of England and of the states and territories of

the United States, the canons of statutory construction compel us to interpret the term “spousal

consent” as used in § 1701(c) according to its peculiar and appropriate legal meaning: a wife’s

irrevocable consent to sexual contact with her husband implied by law solely by virtue of her

marriage. Interpreting the statute in accordance with this historical, legal meaning of spousal

consent, the meaning and effect of § 1701{c) may fairly be summarized as follows: an individual

may not be found guilty of first degree rape if that individual affirmatively proves that the victim

is his or her spouse because the law deems a spouse to have consented to such sexual conduct by

virtue of his or her marriage.* Thus, there can be no question that § 1701(c) constitutes a marital

® Because spousal consent, used in the historical, literal sense of the term, is implied by law upon proof of marriage regardless of whether the victim spouse voluntary agreed to engage in the particular sexual conduct at issue, the historical interpretation avoids the problems and contradictions in the statutory scheme—-particularly with respect to burdens of proof—-that arise from the literal interpretation discussed above. There is no logical contradiction in

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exemption to the crime of first degree rape, as it provides married individuals immunity from

punishment for otherwise unlawful sexual conduct, upon a simple showing that the individual is

legally married to his or her victim.

C. Equal Protection

417 Having established that § 1701(c) creates a marital exemption to the crime of first degree

rape, we must next determine whether the marital exemption provided in subsection (c) renders §

1701 unconstitutionally underinclusive in violation of the Equal Protection Clause of the

Fourteenth Amendment. Wilkinson argues that the first degree rape statute is unconstitutionally

underinclusive because he is subject to punishment under the statute for his conduct, while others

who engage in the same conduct prohibited by the statute avoid punishment merely because they

are married to their victims. (Appellant’s Br. at 13.) The People concede that, if § 1701(c)

constitutes a marital exemption to the crime of first degree rape, that exemption violates the Equal

Protection Clause of the Fourteenth Amendment and should be stricken from the statute

(Appellee’s Br. at 9.) Despite this concession, given the “great gravity and delicacy” with which

we must approach any potential invalidation ofa legislative enactment, we must carefully examine

Wilkinson’s argument to ascertain, for ourselves, whether the first degree rape statute, with its

marital exemption, violates the Equal Protection Clause. See Azille v. People, 59 V.1. 215, 227

requiring the prosecution to prove that the victim’s resistance was forcibly overcome, while also requiring the accused to prove that he or she is married to the victim in order to avail himself or herself of the affirmative defense of spousal consent

° While there is arguably a distinction to be drawn between statutes like § 1701(c) that establish a marital exemption as an affirmative defense, and those that expressly define sexual crimes as crimes committed against ‘‘a person not his spouse,” there is ultimately little, if any, practical difference. In the former case, the accused bears the burden of proving that he or she is married to the victim, while in the latter, the prosecution must prove that the accused is not married to the victim as an element of the crime. In the end however, the result is the same no matter where the burden of proof lies: the law allows the married individual to avoid punishment for nonconsensual sexual conduct perpetrated upon his or her spouse

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(V.I. 2012) (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-46 (1936)

(Brandeis, J., concurring))

q18 |The Equal Protection Clause of the Fourteenth Amendment prohibits any state from

“deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST

amend. XIV. The Revised Organic Act of 1954 specifically extends the protections of the

Fourteenth Amendment's Equal Protection Clause to the Virgin Islands. 48 U.S.C. § 1561. “The

Equal Protection Clause guarantees United States citizens a ‘right to be free from invidious

discrimination in statutory classifications and other governmental activity,” Fleming v. Cruz, 62

V.I. 702, 716 (V.I. 2015), and “is essentially a direction that all persons similarly situated should

be treated alike.” Webster v. People, 60 V.1. 666, 673 (2014) (quoting Lawrence v. Texas, 539 U.S

558, 579 (2003)). Generally, unless the challenged statute draws inherently suspect classifications

warranting heightened scrutiny such as those based upon race, alienage, and national origin,

“legislation is presumed to be valid and will be sustained if the classification drawn by the statute

is rationally related to a legitimate state interest.” City of Cleburne vy. Cleburne Living Ctr., 473

U.S. 432, 440 (1985) (citations omitted). Because no suspect class is implicated by § 1701, the

statute is only subject to rational basis review

q!9 | While the Equal Protection Clause does not prohibit the territorial Legislature from

enacting laws that treat different classes of people in different ways, it denies the Legislature “the

power to legislate that different treatment be accorded to persons placed by a statute into different

classes on the basis of criteria wholly unrelated to the objective of that statute.” Eisenstadt v. Baird,

405 U.S. 438, 447 (1972). Additionally, the Equal Protection Clause demands that classifications

must “be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and

substantial relation to the object of the legislation, so that all persons similarly circumstanced shall

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be treated alike.” /d. (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). In the

specific context of equal protection challenges to statutory classifications based upon marital

status, the relevant question “is whether there is some ground of difference that rationally explains

the different treatment accorded married and unmarried persons” under the challenged statute. /d.;

see also Liberta, 474 N.E.2d at 573

20 For the reasons discussed below, we conclude that there is no rational basis for treating

marital rape differently from nonmarital rape in the eyes of the law. As poignantly summarized by

the New York Court of Appeals, “[t]he various rationales which have been asserted in defense of

the exemption are either based upon archaic notions about the consent and property rights incident

to marriage or are simply unable to withstand even the slightest scrutiny.” /d. Accordingly, we

declare the marital exemption to the crime of first degree rape codified at 14 V.1.C. § 1701(c)

unconstitutional, as it violates the Equal Protection Clause of the Fourteenth Amendment

q21 Wilkinson’s equal protection argument is drawn, almost entirely, from Liberta, in which

the New York Court of Appeals held that the marital exemption in New York’s forcible rape statute

violated the Equal Protection Clause. While Liberta was the first decision to strike down a statutory

marital exemption for sexual offenses on equal protection grounds, courts in other jurisdictions

have since followed the paradigm set by the New York Court of Appeals in declaring their own

respective marital exemptions unconstitutional.'° See, e.g., Williams v. State, 494 So. 2d 819, 826

(Ala. Crim. App. 1986) (declaring marital exemption to forcible sodomy statute unconstitutional);

Merton v. State, 500 So.2d 1301, 1302-05 (Ala. Crim. App. 1986) (declaring marital exemption

i The Liberta decision, itself, drew heavily upon the reasoning of the Supreme Court of New Jersey in State v. Smith, 426 A.2d 38, 41 (NJ. 1981), in which that court became the first to reject the marital exemption as a matter of common law. Several courts in other jurisdictions have similarly followed the approach of the Smith court. See, e.g., State \ Rider, 449 So. 2d 903, 904 (Fla. Dist. Ct. App. 1984); Commonwealth v. Chretien, 417 N.E.2d 1203, 1207-10 (Mass 1981); State v. Willis, 394 N.W.2d 648, 650-51 (Neb. 1986); Shunn v. State, 742 P.2d 775, 778 (Wyo. 1987)

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to forcible rape statute unconstitutional); People v. M.D., 595 N.E.2d 702, 708 (Ill. App. Ct. 1992)

(declaring marital exemption to criminal sexual assault statute unconstitutional). We, in turn,

follow the lead of these persuasive decisions in critically evaluating the various rationales that

have been put forth to justify the different treatment of marital rape and nonmarital rape in the

criminal law

422 There are three traditional justifications for exempting married men from punishment for

sexual offenses committed against their wives. The first is Hale’s conception of implied

matrimonial consent outlined above, in which the law deems a wife to have perpetually and

irrevocably consented to sexual intercourse with her husband at the time of their marriage. Hale’s

implied consent theory, in turn, appears to be derived from the other two archaic common law

doctrines traditionally offered to justify the marital exemption: that a woman was the property of

her husband and that the legal existence of a woman was “incorporated and consolidated into that

of her husband.” Liberta, 474 N.E.2d at 573 (quoting 1 WILLIAM BLACKSTONE'S COMMENTARIES

430 (1966 ed.))

{23 However, these antiquated doctrines simply have no place in modern society, let alone in

the law of the Virgin Islands, as they are repugnant and antithetical to our shared values and to our

contemporary understanding of personal liberty and basic human rights. Indeed, in refusing to

adopt the amatory torts of alienation of affections and criminal conversation, this Court has

previously recognized, together with the vast majority of American jurisdictions, that legal

theories, precepts, and doctrines grounded in the draconian idea that wives are the property of their

husbands must be eschewed and excised from the law wherever they are found. See Matthew 1

Herman, 56 V.1. 674, 683-84 (V.I. 2012) (refusing to recognize the amatory torts “because they

are based on antiquated concepts of women as property and are destructive to existing marriages”)

Page 17 of 26

As the Supreme Court of the United States has observed: “Nowhere in the common-law world

indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate

legal identity and the dignity associated with recognition as a whole human being.” Trammel

United States, 445 U.S. 40, 52 (1980)

424 Rape, particularly forcible rape, is “a degrading, violent act which violates the bodily

integrity of the victim and frequently causes severe, long-lasting physical and psychic harm,” and

the suggestion that the law should ever imply an individual’s consent to rape is plainly absurd

Liberta, 474 N.E.2d at 573 (citations omitted). Such an implied consent rule would effectively

give one spouse the control over the other spouse's bodily integrity. Weishaupt v. Commonwealth,

315 S.E.2d 847, 402 (Va. 1984). The Supreme Court of the United States has described the crime

of rape as “highly reprehensible, both in a moral sense and in its almost total contempt for the

personal integrity and autonomy of the female victim and for the latter's privilege of choosing

those with whom intimate relationships are to be established.” Coker v. Georgia, 433 U.S. 584,

597 (1977). The fact that an individual perpetrates a rape against his or her spouse rather than

against a stranger does not make those actions any less reprehensible or, in any way, lessen the

catastrophic damage inflicted upon the personal integrity and autonomy of the victim. Thus, we

unequivocally reject these traditional justifications for the marital exemption to the crime of rape,

as they fail to provide any rational explanation for allowing a married individual to escape

punishment for rape merely because the victim is his or her spouse

425 Additionally, there are four, more modern rationales that courts have examined in recent

years as potential justifications for retaining the marital exemption. The first of these, as argued

by the prosecution in Liberta, is that the marital exemption protects against government intrusion

into marital privacy. 474 N.E.2d at 574. However, every court to consider the issue has found that

Page 18 of 26

the right to marital privacy, first recognized by the United States Supreme Court in Griswold \

Connecticut, 381 U.S. 479, 485 (1965), protects only private, consensual, marital relations and

does not extend to violent sexual acts. See, e.g., Cotner v. Henry, 394 F.2d 873, 875 (7th Cir. 1968)

(“The import of the Griswold decision is that [only] private, consensual, marital relations are

protected from regulation by the State through the use of a criminal penalty.”); State v. Bateman,

547 P.2d 6, 9-10 (Ariz. 1976) (holding that marital privacy rights are not violated by husband's

conviction for forcing an act of sodomy upon his wife); Williams, 494 So.2d at 828; People v

M.D., 595 N.E.2d at 190-91; Liberta, 474 N.E.2d at 573-74. Thus, while the government certainly

has a legitimate interest in protecting spouses’ marital privacy rights, there is no rational

connection between the protection of these interests and the legislative determination that a

married individual should be allowed to rape his or her spouse with impunity. “Just as a husband

cannot invoke a right of marital privacy to escape liability for beating his wife, he cannot justifiably

rape his wife under the guise of a right to privacy.” Liberta, 474 N.E.2d at 574

426 The next argument in favor of the marital exemption is that it promotes reconciliation of

spouses and avoids disruptions to the marriage that would be caused by criminal proceedings. This

argument defies reason. It is absurd to suggest that prosecuting an individual for the crime of

forcible rape against his or her spouse would cause any more disruption of a marriage than had

already been caused by the violent act itself. Weishaupt, 315 S.E.2d at 405. Furthermore, if a

marriage has already degraded to the point where sexual relations are accomplished by forcible,

nonconsensual intercourse, it is doubtful that there is anything left of the harmony of the marital

relationship to reconcile. /d.; see also Trammel, 445 U.S. at 52 (“When one spouse is willing to

testify against the other in a criminal proceeding—whatever the motivation—their relationship is

almost certainly in disrepair; there is probably little in the way of marital harmony... to preserve.)

Page 19 of 26 927 Another rationale asserted by proponents of the marital exemption focuses on the difficulty

of proving marital rape and suggests that the marital exemption furthers the government’s interest

in preventing prosecutions based upon the fabricated complaints of vengeful or vindictive spouses

As explained by the Supreme Court of Colorado in People v. Brown, the only modern case

upholding a marital exemption in the face of an equal protection challenge: “the marital exception

averts difficult emotional issues and problems of proof inherent in this sensitive area. Otherwise

juries would be expected to fathom the intimate sexual feelings, frustrations, habits, and

understandings unique to particular marital relationships.” 632 P.2d 1025, 1027 (Colo. 1981)

Clearly, the “inherent problems of proof” to which the court alluded in Brown, are the well-known

difficulties associated with proving lack of consent that have been discussed and debated by jurists

and legal scholars for decades. However, as other courts have noted, proving lack of consent is

often the most difficult aspect of prosecuting any rape case in which the alleged perpetrator has

had a prior consensual sexual relationship with the victim, regardless of whether they were married

or unmarried. See People v. M.D., 595 N.E.2d at 712; Williams, 494 So. 2d at 829; Liberta, 474

N.E.2d at 574. Additionally, there is no reason to believe that married persons are any more likely

to file false complaints than unmarried persons. And, as the court observed in Liberta: “The

criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling

any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not

criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than

homicides would go unpunished.” 474 N.E.2d at 574. Thus, although the government undoubtedly

has an interest in ensuring that criminal convictions are based upon credible evidence, we can

discern no manner in which providing a marital exemption for first degree rape rationally furthers

that interest

Page 20 of 26

§28 = The final rationale often advanced in support of the marital exemption is that it results from

a legislative determination that marital rape somehow constitutes a less serious crime than

nonmarital rape, and is therefore adequately addressed by the possibility of prosecuting the

offending spouse under other criminal statutes, such as assault statutes, which carry appropriately

less severe penalties. However, there is no evidence to suggest that marital rape has less severe

consequences, either for the victim or for society, than nonmarital rape, and therefore no logical

basis for classifying marital rape as a less serious offense. In fact, “numerous studies have shown

that marital rape is frequently quite violent and generally has more severe, traumatic effects on the

victim than other rape,” because the perpetrator is someone with whom the victim once shared a

loving, trusting, intimate relationship. See Liberta, 474 N.E.2d at 574-75 (collecting sources)

Furthermore, the very existence of our first degree rape statute and the severe penalties prescribed

therein demonstrates legislative recognition that the nature of the harm caused by forcible rape is

categorically different, and more severe, than that caused by ordinary assault. See People v. M_D.,

595 N.E.2d at 712; Williams, 494 So. 2d at 829; Liberta, 474 N.E.2d at 574-75. Therefore, because

we cannot discern any rational justification that would support a legislative determination that

marital rape is a less severe crime than nonmarital rape, this theoretical legislative determination

does not constitute a rational basis for granting a certain class of individuals immunity from

punishment under the first degree rape statute merely because they are married to their victims

429 Upon close inspection, each potential rationale for the marital exemption that we have

considered, whether traditional or modern in origin, is utterly devoid of merit. Not one provides a

rational basis for drawing a distinction between individuals who are married to the victims of their

nonconsensual sexual acts and those who are not. Indeed, we cannot conceive of any justification

for allowing individuals to escape punishment for rape solely because they are married to their

Page 21 of 26

victims. As Justice Holmes wrote: “It is revolting to have no better reason for a rule of law than

that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which

it was laid down have vanished long since, and the rule simply persists from blind imitation of the

past.” Oliver Wendell Holmes, The Path of the Law, 10 HARv. L. REV. 457, 469 (1897)

Accordingly, because the marital exemption provided in § 1701(c) bears no rational relationship

to any legitimate government interest, 14 V.I-C. § 1701 is unconstitutionally underinclusive in

violation of the Equal Protection Clause of the Fourteenth Amendment

D. Plain Error & Remedy

430 Although we have determined that § 1701 is unconstitutionally underinclusive, because

Wilkinson failed to raise his equal protection argument before the Superior Court, we review the

judgment of the trial court only for plain error. Virgin Islands Rule of Criminal Procedure 52(b)

states: “A plain error that affects substantial nghts may be considered even though it was not

brought to the court’s attention.” The Supreme Court of the United States has explained that the

identical provision in Federal Rule of Criminal Procedure 52(b) “defines a single category of

forfeited-but-reversible error.”'' United States v. Olano, 507 U.S. 725, 732 (1993). Under this rule,

the error “may be considered” only if it is plain and affects substantial rights. /d. In this context,

“considering” an error specifically means correcting that error by either vacating a judgment of

the Superior Court and remanding for a new trial or reversing the judgment outright unless certain

'' “Though we are mindful that decisions of federal courts interpreting a rule of federal procedure represent persuasive rather than binding authority in the context of this Court's interpretation of an identical Virgin Islands rule, we see no reason to depart from well-established federal jurisprudence on this issue.” Yearwood Enterprises, Inc. v. Antilles Gas Corp., 69 V.I. 863, 869-70 (2018) (citing Antilles Sch. v. Lembach, 64 V.1. 400 (V.I. 2016) (‘[C]ourts do not state that borrowed rules incorporate the construction given them by the highest court of [the] jurisdiction from which they were borrowed. Instead, courts typically view such earlier constructions of borrowed rules as [being] persuasive, not mandatory.”))

Page 22 of 26

criteria are satisfied.'? /d. (“More precisely, a court of appeals may correct the error (either vacating

for a new trial, or reversing outright) only if it meets these criteria.”).!>

431 Similarly, since our earliest decisions, this Court has consistently described the plain error

doctrine as a rule establishing conditions precedent to the exercise of our discretion to reverse a

judgment of the Superior Court. See Murrell v. People, 54 V.1. 338, 365 (2010) (“This Court has

recently set forth the four elements that must be met in order to reverse a conviction under the

plain error standard of review.”); Webster, 60 V.1. at 676 (“[W]e will only exercise our discretion

to reverse [a defendant’s] conviction if the Superior Court's error was plain and affected [the

defendant’s] substantial rights, and affirming [the defendant’s] conviction would seriously affect

the fairness, integrity, or public reputation of judicial proceedings.”) (internal quotation marks

omitted); Wallace v. People, 71 V.1. 703, 711 (V.1. 2019) (“For this Court to reverse under a plain

error standard of review, four conditions must be met.”’). Even in those cases in which we have

described the plain error rule less precisely in terms of “noticing” or “correcting,” rather than

reversing an error not raised in the Superior Court, we have borrowed this language directly from

decisions of the United States Supreme Court, and therefore must interpret these terms according

to their technical and precise meaning as provided by that tribunal in opinions such as Olano. See

Davis v. People, 69 V.I. 619, 675 (2018) (citing Olano, 507 U.S. at 732) (when the four plain error

" In Olano, the Supreme Court explained that the phrase “may be noticed,” as it was then used in Rule 52(b), bears a specific and precise meaning. “Noticing” an error in this context doctrine means correcting that error by vacating or reversing a judgment of the lower court. 507 U.S. at 732. In 2002, the language of Rule 52(b) was amended to repiace the more archaic phrase “may be noticed” with the phrase “may be considered,” as part of the general restyling of the Criminal Rules to make them more easily understood. However, these changes were expressly intended to be stylistic only. Thus, because these two phrases are interchangeable in this context, the Supreme Court’s analysis of the meaning and effect of the previous version of Rule 52(b) is equally applicable to the current, restyled version of the rule, and therefore equally applicable to the identical Virgin Islands rule as well '3 Indeed, as originally stated in United States v. Atkinson—the seminal decision in which the Supreme Court first articulated the plain error doctrine, and from which the language of Rule 52(b) is derived—the plain error doctrine was described as providing an exception to the general rule that “[t]he verdict of a jury will not ordinarily be set aside for error not brought to the attention of the trial court.” 297 U.S. 157, 159 (1936)

Page 23 of 26

factors are satisfied, “the Court may then exercise its discretion and notice the error’); Nanton v

People, 52 V.1. 466, 475 (2009) (citing Olano, 507 U.S. at 732) (To correct an error which was

not raised at trial, this Court must find: (1) an error; (2) that is plain; (3) that affected substantial

rights.” (internal quotation marks omitted); Williams v. People, 56 V.I. 821, 830 (2012), overruled

on other grounds by Titre v. People, 70 V.1. 797 (2019) (“[A]n appellate court may, in its

discretion, correct an error not raised at trial only where [the plain error criteria are satisfied].”)

(citing United States v. Marcus, 560 U.S. 258, 262 (2010)). Thus, the plain error doctrine is only

implicated in cases in which we must determine whether to exercise our discretion to vacate or

reverse a judgment of the Superior Court based on an error that was not raised in the proceedings

below. Olano, 507 U.S. at 732

432 In this case, there is no doubt that the Superior Court committed error by convicting

Wilkinson pursuant to an unconstitutional statute. See Webster, 60 V.I. at 677 (“[BJasing a

conviction on an unconstitutional statute is both ‘plain’ and an ‘error.’”) (quoting United States v.

Knowles, 29 F.3d 947, 951 (Sth Cir. 1994)); see also United States v. Coil, 442 F.3d 912, 916 (Sth

Cir. 2006) (“A conviction based upon an unconstitutional statute is both ‘plain’ and ‘error.’’’)

Crutchfield v. State, 627 P.2d 196, 199 (Alaska 1980) (“If the regulation is unconstitutional, [the

defendant’s] conviction, to the extent that it is based on the regulation, constitutes plain error.”)

And, because Wilkinson failed to raise this error before the Superior Court, we may only exercise

our discretion to reverse his conviction if the four elements of the plain error standard are satisfied

Wallace, 71 V.I. at 711. However, we need not reach this issue here because we conclude, for the

reasons discussed below, that the appropriate remedy for the Superior Court’s constitutional error

is not to reverse Wilkinson’s conviction, but rather to sever subsection (c) from § 1701 and affirm

Wilkinson’s conviction under the resulting, constitutionally valid statute. In other words, because

Page 24 of 26

the constitutional error presented in this case may be remedied without reversing or otherwise

disturbing the judgment of the Superior Court, we need not determine whether to exercise our

discretion to reverse Wilkinson’s conviction under the plain error doctrine.'4

733 A determination that one subsection of a statute violates the constitution does not

automatically render the entire statute unconstitutional. United States v. Jackson, 390 U.S. 570,

585 (1968). “Unless it is evident that the legislature would not have enacted those provisions which

are within its power, independently of that which is not, the invalid part may be dropped if what

is left is fully operative as a law.” /d. When a court determines that a statute is unconstitutionally

underinclusive, the court may either strike the statute in its entirety, or extend the coverage of the

statute to those who were formerly excluded. Liberta, 474 N.E.2d at 170 (citing Califano v.

Westcott, 443 U.S. 76, 89 (1979). Additionally, “{iJn any case where a court must decide whether

to sever an exemption or instead declare an entire statute a nullity it must look at the importance

of the statute, the significance of the exemption within the over-all statutory scheme, and the

effects of striking down the statute.” Jd. We have already discussed the severity of the crime of

rape and the important interests protected by the statutory proscription of forcible sexual conduct

Given the great importance of the first degree rape statute, declaring § 1701 a nullity in its entirety

would certainly have a catastrophic effect on the public interest and safety. And while we are

4 Although we need not decide the issue here, we note that there is also good reason to conclude that this error was “plain” within the meaning of Rule 52(b). Although we have never specifically addressed the constitutionality of 14 V.LC. § 1701, in Castor v. People, 57 V.1. 482 (V.1. 2012), in the context of reviewing an appellant’s convictions for first degree aggravated rape (14 V.I.C. § 1700) and first degree sexual assault (14 V.I.C. § 1708), we noted that courts in other jurisdictions have held that marital exemptions violate the Equal Protection Clause by treating married and unmarried persons differently without a rational basis for doing so. 57 V.I. at 490 n.4 (citing Liberta, 474 N.E.2d at 573-74). Moreover, the relevant law governing the rational basis review of a statute challenged under the Equal Protection Clause is well-established in the decisions of both this Court and the United States Supreme Court, Eisenstadt y. Baird, 405 U.S. 438, 447 (1972) (Equal Protection Clause forbids legislatures from according different treatment “to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute”), and “‘it is expected that [the Superior Court] knows and applies settled law.” Webster, 60 V.I. at 677 (quoting Hightree v. People, 55 V.1. 947, 954 (V.I. 2011))

Page 25 of 26

reluctant to expand the scope of any criminal statute, due to the danger of usurping the role of the

Legislature, the overriding policy concerns involved in this case compel us to do so to avoid the

disastrous consequences that would flow from even the temporary elimination of the crime of first

degree rape in this jurisdiction. /d.

434 We have no doubt that the Legislature would elect to retain a first degree rape statute that

applies equally to married and unmarried individuals, rather than to eliminate the statute entirely

Therefore, § 1701(c) is hereby severed and stricken from the remainder of 14 V.LC. § 1701

Consequently, spousal consent no longer constitutes an affirmative defense to the crime of first

degree rape. In turn, because we sever only subsection (c) and uphold the constitutionality of the

remaining subsections of § 1701, which remains a fully operative criminal statute, Wilkinson’s

conviction for first degree rape in violation of § 1701(a)(2) must be affirmed.'>

IV. CONCLUSION

935 Because Wilkinson’s convictions for both first degree rape and first degree sexual assault

arise from the same act or course of conduct, we remand this matter to the Superior Court for

resentencing in accordance with our decision in Titre v. People, 70 V.I. 797 (V.I. 2019)

Additionally, because 14 V.I.C. § 1701 unreasonably and arbitrarily subjects Wilkinson to

punishment for his conduct, while allowing others who engage in the same conduct prohibited by

the statute to escape punishment merely because they are married to their victims, the statute is

unconstitutionally underinclusive in violation of the Equal Protection Clause. However, because

'S Wilkinson cannot claim that our decision to retain the remainder of the first degree rape statute, and consequently affirm his conviction thereunder, denies him due process of the law. While the due process clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State (see Bouie v City of Columbia, 378 U.S. 347 (1964)), Wilkinson did not fall within the exemption that we have stricken, and therefore his actions were clearly prohibited by the statute as it existed when he committed the rape

Page 26 of 26

we sever and strike the marital exemption provided in 14 V.LC. §1701(c) and uphold the

remaining, constitutionally valid portions of the statute, we affirm Wilkinson’s conviction for first

degree rape in violation of 14 V.LC. § 1701(a)(2)

Dated this 28th day of January, 2025

BY THE COURT

/s/ C ar 5

& MARSA M ae Asséciate Justice

ATTEST

VERONICA J. HANDY, ESQ Clerk of the Court do

By Deputy Clerk \|

pated __ 1 AB-QOAD