In re R.L.C.

ELMORE, Judge, dissenting.

For the reasons stated below, I respectfully dissent from the majority opinion.

As noted by the majority, the issue on appeal is whether N.C. Gen.Stat. § 14-177 applies to the facts of the instant case. Section 14-177 provides "If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon." N.C. Gen.Stat. § 14-177 (2005). Our courts have interpreted this offense as "broad enough to include all forms of oral and anal sex, as well as unnatural acts with animals." State v. Stiller, 162 N.C.App. 138, 140, 590 S.E.2d 305, 307 (citing State v. Joyner, 295 N.C. 55, 66, 243 S.E.2d 367, 374 *6(1978)), disc. review denied, 358 N.C. 240, 596 S.E.2d 19 (2004).

An interpretation of this statute involves more than simply considering the plain language therein. In interpreting a statute, this Court must first determine the legislature's intent in enacting that statute. State v. Roache, 358 N.C. 243, 273, 595 S.E.2d 381, 402 (2004). All statutes addressing the same subject matter must be interpreted in pari materia and harmonized if possible through a reasonable and fair construction. Faulkner v. New Bern-Craven County Bd. of Educ., 311 N.C. 42, 58, 316 S.E.2d 281, 291 (1984). This rule of interpretation does not require that the two statutory provisions be in the same subchapter or article, only that they "relat[e] to the same subject matter." Id.; see also Gravel Co. v. Taylor, 269 N.C. 617, 620, 153 S.E.2d 19, 21 (1967).5

Where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded. . . . Interpretations that would create a conflict between two or more statutes are to be avoided, and statutes should be reconciled with each other whenever possible.

Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C.App. 589, 593, 551 S.E.2d 873, 876 (2001) (internal quotations and citations omitted). Also, when two statutory enactments are in apparent conflict, the more specific statute controls over the more general one. Furr v. Noland, 103 N.C.App. 279, 281, 404 S.E.2d 885, 886 (1991).

Respondent asserts that the legislative scheme directed at sexual conduct involving minors establishes that the General Assembly did not intend to criminalize sexual acts between minors who are less than three years apart in age. As the crime against nature statute must be viewed in context with other statutes on the same subject matter in Chapter 14, a review of the relevant statutes regulating the sexual conduct of minors is critical to an analysis of respondent's argument.

Our General Statutes contain four offenses specifically directed at sexual conduct involving minors where there is no element of force or coercion: first-degree rape, first-degree sexual offense, statutory rape or sexual offense, and indecent liberties between children. This Court has previously articulated the legislative intent behind the enactment of the first-degree rape statute, N.C. Gen.Stat. § 14-27.2(a)(1):

The General Assembly saw fit to punish as first-degree rape any vaginal intercourse with a child under thirteen by someone at least twelve and at least four years older than the victim. G.S. 14-27.2(a)(1). This legislation protects children under thirteen who, because of their age, are deemed incapable of defending themselves from the sexual advances of others at least four years older than the victim. Children under thirteen are usually physically and emotionally less mature than persons several years older than they are. They do not have the physical or mental ability to repel attack by someone at least twelve and at least four years older than themselves.

State v. Vanstory, 84 N.C.App. 535, 538, 353 S.E.2d 236, 237, disc. review denied, 320 N.C. 176, 358 S.E.2d 67 (1987). The intent behind the legislative enactment of the first-degree rape statute in its current chapter of our General Statutes is indicative of the intent behind the other offenses involving minors in Chapter 14 as well: first-degree sexual offense has an age differential of four years or more. See N.C. Gen.Stat. § 14-27.4(a)(1) (2005). Statutory rape or sexual offense requires that the defendant be at least four years older than the victim. See N.C. Gen. Stat. § 14-27.7A (2005). Indecent liberties between children includes an age differential *7of at least three years. See N.C. Gen.Stat. § 14-202.2 (2005). Where there is force involved, however, the General Assembly did not see fit to include an age requirement. See, e.g., N.C. Gen.Stat. § 14-27.5(a)(1) (2005) (defendant is guilty of second-degree sexual offense if he engages in a sexual act "[b]y force and against the will of the other person[.]"). According to this legislative scheme, our General Assembly has expressed its intent to regulate sexual acts between minors only in those situations involving force or in which the age differential between the minors potentially allows some aspect of coercion, whether psychological or physical. The General Assembly has chosen not to criminalize vaginal intercourse between two minors less than four years apart in age or oral sex between two minors less than three years apart in age.

Here, respondent is two years and ten months older than O.P.M. Therefore, he does not fit into the statutory requirements of first-degree rape, first-degree sexual offense, statutory rape or sexual offense, or indecent liberties between children. As there is no allegation of force, neither does he fit into the requirements for second-degree sex offense. The facts and circumstances of the instant case most closely resemble the essential elements of indecent liberties between children, a misdemeanor offense involving two minors at least three years apart in age. See N.C. Gen.Stat. § 14-202.2 (2005). However, respondent was alleged to have committed the felony of crime against nature. If this Court is to interpret the application of the crime against nature statute according to the intent of the General Assembly, we must consider whether this statute conflicts with the other statutes regulating sexual conduct of minors in Chapter 14.

The General Assembly revised rape offenses and enacted the first-degree rape provisions of Chapter 14 in 1979. See 1979 N.C. Sess. Laws 682, § 1. As stated supra, the intent behind this legislation was, in part, to protect minors under the age of thirteen from the coercive influence of minors several years older than them in the context of sexual intercourse. The General Assembly reaffirmed this statutory purpose with the enactment of the "Indecent liberties between children" statute in 1995. See 1995 N.C. Sess. Laws 494, § 1. This enactment protects a minor from another minor under the age of sixteen and who is at least three years older. The crime against nature statute contains no age requirements whatsoever, in contrast to the age differential element of the indecent liberties with children statute. To the extent that the crime against nature statute is in conflict with the more recent and specific statute on indecent liberties between children, section 14-202.2, it must yield. Also, no other statute in Chapter 14 criminalizes sexual intercourse between minors less than three years apart in age where no force is alleged. Thus, to construe the crime against nature statute broadly to include any age difference between minors is to violate the rule of construction that statutes on the same subject matter are to be interpreted in harmony with each other whenever possible. See Faulkner, 311 N.C. at 58, 316 S.E.2d at 291.

The State points out that the crime against nature statute has been held constitutional on its face. See, e.g., State v. Whiteley, 172 N.C.App. 772, 778-79, 616 S.E.2d 576, 580-81 (2005). The State contends that, based upon Whiteley and Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the crime against nature statute may be applied to regulate any conduct of minors. In Whiteley, this Court noted that following the United States Supreme Court's decision in Lawrence, the application of N.C. Gen.Stat. § 14-177 is unconstitutional when applied to conduct between consenting adults in private. Id. at 779, 616 S.E.2d at 581. However, the application of this statute is permissible where legitimate state interests exist in prohibiting the underlying conduct, including: conduct involving minors, conduct in public, prostitution, or non-consensual, coercive conduct. Id. at 778-79, 616 S.E.2d at 581; see also Lawrence, 539 U.S. at 578, 123 S.Ct. at 2483-84, 156 L.Ed.2d at 525. The defendant in Whiteley argued that in order for the application of the crime against nature statute to be constitutional as applied to his act of cunnilingus with another adult, the jury must find beyond a reasonable doubt it was non-consensual. Whiteley, 172 N.C.App. at *8779, 616 S.E.2d at 581. This Court agreed, holding that section 14-177 was unconstitutional as applied to the facts because the jury did not find that the sexual act, committed by two adults in a private residence, was non-consensual. Id. at 780, 616 S.E.2d at 581.

We agree with the State that conduct involving minors is a legitimate state interest explicitly acknowledged in Lawrence. However, we disagree with the State that all conduct between minors may be regulated by the crime against nature statute, without regard to the circumstances. The State may punish sexual intercourse or sexual offenses where the victim is under thirteen years old and the defendant is at least twelve years old and at least four years older than the victim, or indecent liberties where the defendant is under the age of sixteen and the victim is at least three years younger. Also, the State may punish statutory rape, where the victim is thirteen, fourteen, or fifteen and the defendant is at least four years older. But our General Assembly has dictated that there is no legitimate state interest in the regulation of minors less than three years apart in age, absent the use of force. Where, as here, the two minors are less than three years apart in age and there is no evidence of force, the General Assembly did not intend that the conduct be criminalized.

In sum, I would hold that the General Assembly did not intend that the conduct of respondent and O.P.M. be subject to criminal regulation. Accordingly, I would reverse the juvenile adjudication and disposition orders entered by the trial court.

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