Douglas v. State

130 Nev., Advance Opinion SI
IN THE SUPREME COURT OF THE STATE OF NEVADA

DELBERT ROY DOUGLAS, No. 59084
Appellant,
vs. FILED
THE STATE OF NEVADA,
MAY 0 1 2014
Respondent.
IE K. LINDE
SUP M
ell
CHIEF
I
ERN

Appeal from judgment of conviction for sexual assaurt and
incest. Eighth Judicial District Court, Clark County; David B. Barker,
Judge.
Affirmed.

Philip J. Kohn, Public Defender, and P. David Westbrook, Deputy Public
Defender, Clark County,
for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Stephen B.
Wolfson, District Attorney, Jonathan E. VanBoskerck, Chief Deputy
District Attorney, and Ryan J. MacDonald, Deputy District Attorney,
Clark County,
for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:
Delbert Roy Douglas fathered two children with his daughter,
whom he forced to have sex with him when she was 12 and, again, after

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 she turned 18. He was charged with and convicted of sexual assault and
incest for both rapes. On appeal, Douglas challenges his incest
convictions. He argues that incest requires mutual consent while sexual
assault is, by definition, nonconsensual, making the two crimes mutually
exclusive. We hold, as the majority of courts have held, that incest
condemns sex between close relatives without regard to whether the
intercourse was consensual.
I.
A.
Our review is de novo, State v. Lucero, 127 Nev. „ 249
P.3d 1226, 1228 (2011), and begins with the text of Nevada's incest
statute:
Persons being within the degree of consanguinity
within which marriages are declared by law to be
incestuous and void who intermarry with each
other or who commit fornication or adultery with
each other shall be punished for a category A
felony by imprisonment in the state prison. . . .
NRS 201.180.
Obviously, NRS 201.180 omits any express mutual consent
requirement. But Douglas parses the statute as punishing "[plersons
being within the degree of consanguinity within which marriages are
declared by law to be incestuous and void,. . who commit
fornication . . . with each other" and infers a mutual consent requirement
from its key terms: persons, commit, fornication, and with each other.
"Unlike sexual assault," Douglas argues, "incest is not a crime
perpetrated by one person against another; it is the joint operation of
two or more prohibited persons who, together, 'commit fornication.'
And "fornication," Douglas continues, means "consensual sexual
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 intercourse between two persons not married to each other." Id.
at 8 & n.2 (quoting Merriam-Webster's Online Dictionary,
http://www.merriam-webster.com/dictionary/fornication (last visited, July
20, 2012)).
Nevada's prohibition on incest dates back to 1861. 1861 Laws
of the Territory of Nevada, ch. 28, § 129, at 83. Though the penalty has
changed over time, see 1979 Nev. Stat., ch. 655, § 43, at 1429; 1995 Nev.
Stat., ch. 443, § 83, at 1198; 2005 Nev. Stat., ch. 507, § 31, at 2877, the
words used to describe incest's elements have not varied.' In general,
"[w]ords must be given the meaning they had when the text was adopted."
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 78 (2012). So, we look to references from the late 19th century
to glean the meaning of NRS 201.180.
To Douglas, the phrase "with each other" unambiguously
requires mutual consent. But 19th century scholarly references primarily
defined with as in the "presence" or "company of." Rev. James Stormonth,
Dictionary of the English Language 733 (1877); see also William Dwight
Whitney, The Century Dictionary 6952 (1895) (defining with as "in
company with"). Thus, "with each other" requires only that the charged
party commit the act of incest in the company of the person with whom he

'Section 129 of the 1861 Laws of the Territory of Nevada
criminalized incest in terms identical to NRS 201.180, except for the
reference to the territorial as opposed to the state prison and the omission
of five commas. "Persons being within the degrees of consanguinity, within
which marriages are declared by law to be incestuous and void, who shall
intermarry with each other, or who shall commit fornication or adultery
with each other, shall, on conviction, be punished by imprisonment in the
territorial prison .. . ." 1861 Laws of the Territory of Nevada, ch. 28, §
129, at 83.

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 or she intermarries or fornicates. The phrase is indeed unambiguous, 2 but
it does not demand the consent of both parties to support a conviction.
Douglas also argues that the phrase "persons . . . who commit"
requires mutual consent. We disagree. Commit is defined as "to do or
effect," Stormonth, supra, at 99, or "to perpetrate." Whitney, supra, at
1131. Thus, the phrase "persons. . . who commit" sanctions punishment
for those persons who voluntarily carry the incestuous act into execution,
and prevents the prosecution of those who do not. This requirement
shields rape victims and certain minors from prosecution for incest, but it
does not demand mutual consent.
Nor do we agree that fornication signifies consensual sexual
intercourse. Stormonth defines fornication as sexual intercourse "between
unmarried persons." Stormonth, supra, at 215. Whitney similarly defines
it as "illicit sexual intercourse on the part of an unmarried person with a
person of the opposite sex, whether married or unmarried." Whitney,
supra, at 2340. These early definitions focus on marital status of the
participants, not consent.
Though helpful, historical dictionaries are not "perfect
repositories." Note, Looking It Up: Dictionaries and Statutory
Interpretation, 107 Harv. L. Rev. 1437, 1445, 1447 (1994). Douglas
supports his reading of NRS 201.180 with Merriam-Webster's Online
Dictionary, supra, which defines fornication as "consensual sexual
intercourse." But other modern dictionaries do not include "consensual" in

2 See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutory Construction § 47:7, at 304 (7th ed. 2007) (explaining that a
court's reliance on a dictionary to interpret language does not render that
language ambiguous).

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 their definitions of fornication. See, e.g., Webster's Seventh New Collegiate
Dictionary 329 (1969). And Douglas's reference to the online dictionary
provides no prefatory material, or information as to editor, year of
publication, or depth, making it impossible to weigh his definition's
relative credibility.
A more reliable modern resource is Black's Law Dictionary.
See Rugamas v. Eighth Judicial Dist, Court, 129 Nev. 305 P.3d
887, 893 (2013). The definition of fornication offered by Black's is
"voluntary sexual intercourse with an unmarried woman" or "[v]oluntary
sexual intercourse between two unmarried persons." Black's Law
Dictionary 679 (8th ed. 2009). These definitions mirror those provided by
Stormonth and Whitney, except for Black's inclusion of the word
voluntary. See Stormonth, supra, at 215; Whitney, supra, at 2340.
One definition of voluntary is "not impelled." Black's Law
Dictionary 1605 (8th ed. 2009). Under that definition, fornication suggests
mutual consent. But voluntary may also mean "by. . . intention." Id.
Under this definition, a conviction for incestuous fornication requires an
intentional act by the accused, like all crimes in Nevada. NRS 193.190
("In every crime or public offense there must exist a union, or joint
operation of act and intention. ."). But it would not demand mutual
consent.
B.
The majority of courts that have considered statutes like NRS
201.180 have refused to infer a mutual consent requirement. Most states
passed statutes criminalizing incest by the late 1800s. Joel Prentiss
Bishop, Commentaries on the Law of Statutory Crimes § 728, at 442 (2d ed.
1883). Although "[t]hese statutes [were] not precisely the same in all

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 states," they were "substantially so." William Lawrence Clark & William
Lawrence Marshall, A Treatise on the Law of Crimes § 460, at 704 (2d ed.
1905). For the most part, these statutes were worded like NRS 201.180:
They "punish[ed] any persons who, being within the degrees of
consanguinity. .. within which marriages are declared to be incestuous
and void, intermarry or commit adultery or fornication with each other."
Id. By 1905, "in most states," it was the settled law that "the consent of
both parties is not a necessary element of the offense" of incest. Id. at 705;
Recent Case, Incest—Elements of Offense—Relation of Parties, 22 Yale L.J.
625 (1913) ("According to the weight of authority assent of both parties is
not necessary to constitute the crime of incest."); L. S. Tellier, Annotation,
Consent as element of incest, 36 A.L.R.2d 1299 (1954) ("While [incest]
statutes generally forbid persons within specified degrees of consanguinity
or affinity to have sexual intercourse 'with each other' or 'together,' in
most jurisdictions the courts do not regard the words 'with each other' or
'together,' as requiring a mutual consent to the wrongful act in order that
incest may be committed, the purpose of the statutes being to deter the
commission of fornication or adultery with one within the prohibited
degrees of relationship, and to punish the accused regardless of whether or
not the other party consented to the act or whether or not force was used
to overcome the other's resistance.").
Nevada appears to have copied its incest statute from
California. Compare 1861 Laws of the Territory of Nevada, ch. 28, § 129,
at 83, reprinted supra note 1, with 1850 Cal. Stat. 244 ("Persons being
within the degrees of consanguinity, within which marriages are declared
by law to be incestuous and void, who shall intermarry with each other, or
who shall commit fornication or adultery with each other, shall, on

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 conviction, be punished by imprisonment in the State Prison. ."); see
also 5 Nev. Compiled Laws § 10140 (1929) (citing Cal. Penal Code § 285,
where 1850 Cal. Stat. 244 was eventually codified, as a resource for
Nevada's incest statute). In People v. Stratton, 75 P. 166, 167 (1904),
superseded by statute on other grounds as stated in People v. Tobias, 21
P.3d 758, 766 (Cal. 2001), the California Supreme Court considered and
rejected the text-based mutual-consent arguments Douglas reprises here.
In its view, such "reasoning does not commend itself' because it makes
"mutuality of agreement and joint consent ... the essence of the crime" in
an improper judicial revision of the "express declaration of the [statutory]
law." Id. Adding a mutual consent requirement to the statute disserves
its purpose:
The gravamen of the crime of incest, as of rape, is
the unlawful carnal knowledge. In rape it is
unlawful because accomplished by unlawful
means In incest it is unlawful, without regard to
the means, because of consanguinity or affinity.
Where both the circumstances of force and
consanguinity are present, the object of the statute
being to prohibit by punishment such sexual
intercourse, it is not less incest because the
element of rape is added, and it is not less rape
because perpetrated upon a relative. In this, as in
every offense, the guilt of the defendant is
measured by his knowledge and intent, and not by
the knowledge and intent of any other person.
Id., quoted with approval in State v. Hittson, 254 P.2d 1063, 1065 (N.M.
1953); see also Tellier, supra, 36 A.L.1t2d at 1296 (reproducing Hittson as
the lead case for the annotation).
Douglas suggests that the wording of Nevada's incest statute
is unique and distinguishes the cases holding incest does not require
mutual consent. But this is not accurate. Early cases abound, construing
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,
 incest statutes indistinguishable from Nevada's and rejecting the idea that
incest requires mutual consent.
In People v. Barnes, 9 P. 532 (1886), for example, the Supreme
Court of the Territory of Idaho considered Idaho's incest statute—a statute
identical to Nevada's. Compare id. at 532 (reprinting 1875 Revised Laws
of the Territory of Idaho, ch. 10, § 129, at 353), with 1861 Laws of the
Territory of Nevada, ch. 28, § 129 at 83, reprinted supra note 1. In
Barnes, the defendant tendered the same arguments about "fornication"
and "with each other" requiring mutual consent that Douglas does.
Barnes, 9 P. at 534. Quoting contemporary authorities, the Idaho
Territorial Court noted that one defines "fornication" as "the unlawful
knowledge by an unmarried person of another,' which "does not imply
that carnal knowledge must necessarily be mutual," while the other
"defines it to be the voluntary sexual intercourse of one person with
another." Id. These definitions establish that the defendant must act
volitionally but not that the intercourse must occur consensually. As the
Barnes court rhetorically asks: "There must be a voluntary consent of the
will on the part of the one, but may not the other party to the act be the
victim of force or fraud, or a child so young that the law regards her
incapable of giving consent?" Id. The Barnes court's conclusion that
incest does not require mutual consent was not simply policy-based but
text-based as well:
The terms used in the statute are, "Persons being
within the degrees of consanguinity," etc., "who
shall commit fornication with each other."
Evidently the term "fornication" is used in the
ordinary common law meaning. We have been
unable to find any definition of that term in the
common-law authorities which necessarily implies
a consenting mind in both parties to the act. It is
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 maintained that the words "with each other," used
in the statute, imply that the offense is committed
only when both participants therein do so with a
willing mind We are unable to adopt this
construction. We are rather of the opinion
that. . . neither the language of the statute, nor
the true definition of the terms employed, imply
that a mutuality of consent is necessary to
constitute the crime of incest.
Id. at 534-35 (emphasis added).
Addressing statutes with the same wording as NRS 201.180
and coming to the same conclusion as Stratton and Barnes are: McCaskill
v. State, 45 So. 843, 844-45 (Fla. 1908) ("The fact that the defendant, who
had carnal intercourse with his daughter, used some force to overcome the
resistance actually made by her, does not render the act the less
incestuous."); David v. People, 68 N.E. 540, 542 (Ill. 1903) ("the consent of
the female is not necessary to constitute the crime of incest by the male");
Keeton v. State, 549 So. 2d 960, 961 (Miss 1989) ("If this Court has not
before adopted, we here adopt the majority position that consent is not a
necessary element of incest"); Hittson, 254 P.2d at 1065 ("[T]he purpose of
the [incest] statute is to prevent sexual intercourse between close
relatives, and the free act of the one being tried, with knowledge of the
relationship, is all that is required. It is immaterial that the same
testimony would have sustained a conviction for rape."); Signs v. State,
250 P. 938, 940 (Okla. Crim. App. 1926) ("incest is proved, although the
female was incapable of and did not give her consent or voluntarily
participate in the act of intercourse"); State v. Nugent, 56 P. 25, 26 (Wash.
1899) ("If it be true that both parties must be guilty or neither can be,
then it must follow that if the female is under the age of consent, or an
imbecile, the crime cannot be incest. We cannot subscribe to such a

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 doctrine. It is illogical, and in disregard of the fundamental principle that
each must answer for the consequences of his own act, and his own guilt
does not depend upon the conduct or mental condition of another.").
DeGroat v. People, 39 Mich. 124 (1878), on which Douglas
relies, and State v. Jarvis, 26 P. 302 (Or. 1891), are the exceptions to the
rule established by the cases just cited. They address statutes similar to
NRS 201.180 and deem mutual consent an element of incest. But no court
outside Michigan or Oregon has cited either decision approvingly since the
end of the 19th century, while many have considered and rejected their
holdings. See Stratton, 75 P. at 167 (DeGroat and Jarvis are products of
"judicial construction" not proper statutory interpretation); David, 68 N.E.
at 542-43 (rejecting DeGroat and Jarvis); State v. Freddy, 41 So. 436, 437-
38 (La. 1906) (construing a differently worded statute but rejecting the
rule in DeGroat and Jarvis; "the aim of the [incest] statute is to prevent
the unnatural sexual intercourse, and this intercourse exists none the less
if accomplished against the will of one of the parties, and the act is none
the less incest because it happens also to be rape"); Hittson, 254 P.2d at
1064-65 (rejecting DeGroat and Jarvis); Signs, 250 P. at 940 (citing
DeGroat and Jarvis as exceptions to the better-reasoned general rule);
State v. Winslow, 85 P. 433, 435 (Utah 1906) (construing a differently
worded statute but rejecting Dc Groat and Jarvis; "the great weight of
authority is to the effect that when the incestuous fornication is shown to
have been committed by the defendant with full knowledge of the
relationship between himself and the other participant, though he used
force in the accomplishment of his object, he may, nevertheless, be
convicted of the crime of incest"); Nugent, 56 P. at 26 (rejecting DeGroat
and Jarvis as "illogical").

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 Two courts that started down• the Dc Groat and Jarvis path,
State v. Thomas, 4 N.W. 908, 910 (Iowa 1880); Noble v. State, 22 Ohio St.
541, 545 (1872), considered statutes worded differently from NRS 201.180,
and, more to the point, did not stay the course. Thomas was a 3-2 decision
from which, to the extent it supported the mutual consent rule contended
for here, the Iowa Supreme Court soon retreated. See State v. Hurd, 70
N.W. 613, 615 (Iowa 1897) ("A person may be convicted of incest though
he accomplish his purpose by such force as to render him also guilty of
rape." (quoting headnote 1 to Smith v. State, 19 So. 306, 306 (Ala. 1896)));
see also State v. Chambers, 53 N.W. 1090, 1092 (Iowa 1893) ("Guilt may
exist and is none the less enormous, because the act was without the
consent of the female. To hold otherwise is to say that the crime of incest
cannot be committed with one who, from infancy or other cause, is
incapable of consenting to the act."). And Noble's passing reference to
incest being "committed by two willing parties," 22 Ohio St. at 545, was
later dismissed as dictum in State v. Robinson, 93 N.E. 623, 624 (Ohio
1910) ("The question whether consent is an essential ingredient of the
crime [of incest] was not presented in the case of Noble v. State."). See also
id. ("[Tin the great majority of states it is held that the consent of both
parties is not essential, and that a defendant may be convicted of incest
though he use such force as makes it rape. We think the better reason is
with the majority."). 3

3 The decision in People v. Harriden, 1 Parker's Criminal Reports 344
(N.Y. 1852), has likewise failed the test of time. As noted in People v.
Wilson, 135 N.Y.S.2d 893 (Nassau Cnty. Ct. 1952), Harriden was
effectively overruled by People v. Gibson, 93 N.E.2d 827, 828 (N.Y. 1950),
permitting Wilson to uphold a verdict of guilt as to both rape and incest for
the same sexual assault. Id. at 897. So, too, with State v. Shear, 8 N.W.
continued on next page...
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 C.
"It would seem a strange rule of law, that a man indicted for
incest might escape conviction and secure an acquittal, by satisfying the
jury that he overcame the woman by force and violence." Straub v. State,
27 Ohio C.C. 50, 55 (Ohio Ct. App. 1904). Yet, this is the rule Douglas
champions and DeGroat and Jarvis endorse. Such a rule is supported
neither by the text of NRS 201.180 nor the majority of cases to have
interpreted comparable texts. And adopting the rule in DeGroat and
Jarvis would thwart the evident purpose of the prohibition against
incest—protecting families and the welfare of children, and preventing
genetic mutations. Leigh B. Bienen, Defining Incest, 92 Nw. U.L. Rev,
1501, 1536 (1998) ("The goals incorporated within traditional incest
statutes include: the orderly regulation of marriage, the prevention of
biologically harmful inbreeding. . . and the setting out of punishment for
sexual behavior perceived as deviant or exploitative."). Most incest
convictions involve sexual contact between an adult and a minor whose
legal and psychological capacity to consent is, at best, debatable. See
People v. Facey, 499 N.Y.S. 2d 517, 520 (App. Div. 1986). Making consent
an element of incest leaves NRS 201.180 unusable in the context in which
its application seems most apt.
"A textually permissible interpretation that furthers rather
than obstructs the document's purpose should be favored." Scalia &

...continued
287 (Wis. 1881): To the extent Shear could be read for the proposition that
incest and rape were mutually inconsistent, it was abrogated by Porath v.
State, 63 N.W. 1061, 1064 (Wis. 1895), which held that in a case "founded
on a single transaction, a count for incest may be joined with one for rape."

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 Garner, supra, at 63. If the Legislature wanted to make mutual consent
an element of incest, it would have been easy to do but it did not; courts
should not add things to what a statutory text states or reasonably
implies. Id. at 93. Absent clear textual instruction otherwise, we decline
to presume that a legislature acting in this environment would sanction
lack of consent as a defense to incest, particularly when the defense would
primarily serve those accused of assaulting the children whose
accessibility, due to family ties, is greatest. See Facey, 499 N.Y.S. at 520.
D.
The rule of lenity requires that we liberally interpret an
ambiguous criminal law in favor of the accused. Lucero, 127 Nev. at ,
249 P.3d at 1230. But the principle applies only after this court has used
every interpretive tool at its disposal and "a reasonable doubt persists."
Moskal v. United States, 498 U.S. 103, 108 (1990). And given the analysis
above, this court is not left with reasonable doubt as to the meaning of
MRS 201.180.

Our reading of NRS 201.180 disables Douglas's remaining
arguments. While the jury instructions—to which Douglas did not
properly object—did not make mutual consent an element of incest or
define "fornication" in terms of "consent," this was not error, plain or
otherwise, since the crime of incest does not require mutual consent. See
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
Douglas's double jeopardy challenge also fails. Sexual assault
and incest each "contains an element not contained in the other." Jackson
v. State, 128 Nev. , 291 P.3d 1274, 1278 (2012). Incest requires
familial relationship, MRS 201.180, while sexual assault does not. NRS
200.366. And sexual assault makes nonconsent of the other party a clear
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 condition for conviction, NRS 200.366(1), while incest does not. Also, the
text of neither statute suggests that a conviction under one precludes a
conviction under the other. Thus, Douglas's convictions for both incest
and sexual assault did not violate double jeopardy.
We affirm.
(;'Cile-eA ovp
) J.
Pickering

, C.J.
Gibbons

--Leguic

Hardesty

Parraguirrt
e

\frs
Douglas

J.
Saitta

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