(specially concurring).
I concur in both the result and the discussion; I write separately to explain more fully the rationale for my view, now agreed upon by the panel. I will first discuss the statute under which defendant was charged and the evidence relied upon to sustain the convictions. This review will demonstrate why defendant cannot be convicted under the charges brought.
NMSA 1978, Section 30-9-ll(B) (Repl. Pamp.1984), as charged in this case, provides that criminal sexual penetration in the second degree (CSP II) consists of all criminal sexual penetration perpetrated by use of force or coercion which results in personal injury to the victim. CSP II is a second-degree felony. CSP III, a third-degree felony, differs only in that personal injury to the victim need not result.
The “force or coercion” requirement is defined in NMSA 1978, Section 30-9-10(A) (Repl.Pamp.1984), and with respect to this case means “perpetrating criminal sexual penetration ... when the perpetrator knows or has reason to know that the victim ... suffers from a mental condition which renders the victim incapable of understanding the nature or consequences of the act. ” (Emphasis added.)
The state makes no claim that defendant used force in the physical sense. Its theory is simple and straightforward. The state contends that as a result of the therapist-patient relationship, a phenomenon known as transference occurred, which satisfied the mental condition requirement of the statute. The state makes no claim that the victim suffered from any mental disorder or mental disease or that he was incapable of understanding the nature of the act. It claims only that transference, a term I describe in more detail later, rendered the victim incapable of understanding the consequences of the act. That consequence was in the form of an emotional disorder known as post-traumatic stress syndrome, which also formed the basis of the personal injury for those counts alleging CSP II.
The question of whether sex between the therapist and his patient under the state’s theory and the facts supporting that theory constitutes rape under the statute is essentially one of statutory construction. Does the operative language embrace the circumstances under which sex occurred here, or did the legislature intend something more constrictive?
In examining the language “suffers from a mental condition which renders the victim incapable of understanding the nature or consequences of the act,” one has little difficulty in applying the statute to the case where, for example, an individual is sexually violated but who, because of severe mental incapacity, has no understanding of the act or its consequences. In that scenario, the victim would not be expected to resist because he or she would have no idea what was happening. The same might be said where the victim was unconscious. Most would readily agree that sexual penetration under those circumstances violates the statute and subjects the perpetrator to criminal liability. But can the same be said where the victim is neither mentally ill nor oblivious to the act, as in the case before us? To answer these questions, it is necessary to look more closely at the facts, which must be viewed in a light favorable to support the verdicts of guilt. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).
Victim was referred to defendant in the fall of 1979 with a history of adolescent problems, confusion about his identity, and confusion about his sexual orientation or preference. He was fourteen years old at the time he first saw defendant. Victim had experimented with homosexuality at around age eleven or twelve. Later, he became sexually involved with a male high school teacher. This relationship extended from the summer of 1979 to the early months of 1980. Because of concerns over this relationship and problems with students at school, victim’s parents sought help.
After a close relationship had developed between victim and defendant through therapy, defendant initiated sexual advances which culminated in the acts for which defendant was charged and numerous other acts not charged. It is important to understand that, although homosexual activity commenced early in the therapy, defendant was not charged with any acts prior to the time victim was over seventeen years old. The counts charged were for acts occurring in 1982 and in 1987. Victim would have been about twenty-two years old in the later year. It can be assumed no charges were filed before the 1982 dates because the statute of limitations barred prosecution. See NMSA 1978, § 30-1-8 (Repl.Pamp.1984). No charges could be filed between 1983 and 1987 because victim terminated the therapy in 1983 and did not return until four years later.
I provide the dates and victim’s ages to make clear we are not dealing with CSP as relates to victims under or within certain age limits. For example, CSP in the first degree occurs when criminal sexual penetration is perpetrated on a child under thirteen years of age. § 30-9-ll(A)(l). CSP II may consist of criminal sexual penetration perpetrated on a child thirteen to sixteen years of age when the perpetrator is in a position of authority over the child and uses the authority to coerce the child to submit. § 30-9-ll(B)(l). Although not in effect at the time, the legislature has added a new section making all criminal sexual penetration not covered by the prior section a fourth-degree felony where perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child. NMSA 1978, § 30-9-11(D) (Cum.Supp.1990). See Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990). (construing new provision to permit as a defense perpetrator’s good faith belief that victim was over age of sixteen). We are concerned only with the criminal sexual penetration by force or coercion as that term is defined: when the perpetrator knows or has reason to know the victim suffers from a mental condition which renders him incapable of understanding the nature or consequences of the act.
I stated earlier that the state relied on the transference phenomenon that exists in a therapist-patient relationship as the mental condition that rendered victim incapable of understanding. What does this term mean?
Based on expert testimony in this case, literature in the mental health field, and limited case law, “transference,” as relates to the therapist-patient relationship, is the emotional reaction which the patient in therapy has toward the therapist. The patient unconsciously attributes to the therapist those feelings which he may have suppressed toward others close to him, such as parents. It is through the skillful management of the feelings that the therapist assists the patient in becoming well. See generally Simmons v. United States, 805 F.2d 1363 (9th Cir.1986); L.L. v. Medical Protective Co., 122 Wis.2d 455, 461, 362 N.W.2d 174, 177 (Ct.App.1984); Coleman, Sex Between Psychiatrist and Former Patient: A Proposal For A “No Harm, No Foul” Rule, 41 Okla.L.Rev. 1 (1988); W. Masters & V. Johnson, Principles of the New Sex Therapy, AmJ.Psychiatry 133:5 (1976). The therapist can readily tell when transference has occurred. “Inappropriate emotions, both hostile and loving, directed toward the [therapist] are recognized as constituting ... the transference.” L.L. v. Medical Protective Co., 122 Wis.2d at 461, 362 N.W.2d at 177 (quoting M. Heller, Some Comments to Lawyers on the Practice of Psychiatry, 30 Temp.L.Q. 401, 401-02 (1957)). The development of the transference may be marked by signs that the patient identifies with the therapist, i.e., the patient learns to think, style, and model himself after the therapist. Id. 122 Wis.2d at 461, 362 N.W.2d at 177 (quoting from D. Dawidoff, The Malpractice of Psychiatrists 6 (1973)). Dr. Martin Orne, a psychiatrist-psychologist who testified for the state, recited an example of this emulation when he observed a patient of his change his brand of cigarettes to an offbeat foreign brand used by Dr. Orne. In the case before us, victim’s acquiring a Fiat automobile similar to the one driven by defendant was recognized as a sign that transference was occurring in the therapeutic relationship.
Sex between the therapist and his patient, whether it be heterosexual or homosexual, resulting from the transference phenomenon, has been the subject of much debate in the mental health area and has spawned civil litigation for malpractice, e.g., Simmons v. United States; Vigilant Insurance Co. v. Employers Insurance of Wausau, 626 F.Supp. 262 (S.D.N.Y.1986); L.L. v. Medical Protective Co.; see also W. Masters & V. Johnson, supra; Stone, The Legal Implications of Sexual Activity Between Psychiatrist & Patient, Am.J.Psychiatry 133:10 (1976).
Based on my own research, I found only one reported case in which a psychiatrist was convicted for statutory rape of his patient, see People v. Bernstein, 171 Cal.App.2d 279, 340 P.2d 299 (1959); however, that case did not address the issue of whether sex between the therapist and his patient met the statutory requirements; it dealt with evidentiary questions. This issue is squarely before us and must be answered.
The narrower issue is whether the statutory language in question should be construed strictly so as to limit CSP to those situations where the perpetrator sexually penetrates a mentally impaired individual who is incapable of ever knowing what has occurred, or, should construction be expanded to permit the facts and circumstances of the case before us. I am compelled to hold for the strict construction. I explain why.
The rules of statutory construction mandate that penal statutes be strictly construed and be of sufficient certainty so that a person will know that his act is criminal when he commits the act. State v. Collins, 80 N.M. 499, 458 P.2d 225 (1969); State v. Grijalva, 85 N.M. 127, 509 P.2d 894 (Ct.App.1973). The rationale for the rule of strict construction is that statutes which do not give reasonable notice of what conduct is proscribed are void for vagueness under the Due Process Clause of the United States Constitution. In State v. Brecheisen, 101 N.M. 38, 42, 677 P.2d 1074, 1078 (Ct.App.1984) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)), we said that the United States Supreme Court has described the void-for-vagueness doctrine as requiring “ ‘that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” See also State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990). While the statute as written is not being challenged as void for vagueness, the argument is made that an expansive interpretation as advocated by the state would lead to that result. I agree.
If the mental condition requirement can be satisfied by transference, how will ordinary people understand what conduct is prohibited, and how can arbitrary and discriminatory enforcement be avoided or discouraged? We know from the state’s experts that transference occurs in relationships outside the therapeutic context. For example, Dr. Carl Adams, a psychologist called by the state, acknowledged that transference can occur between parent and child, teacher and student, coach and athlete, and so on. When asked how he would distinguish sexual penetration in those settings from the therapist-patient context, Dr. Orne said the difference is intensity. He said that transference can be so intense in therapy that the patient will not be able to withhold consent. Accepting this as correct, then do we limit prosecution to the more intense relationship while turning away from prosecuting the less intense one, and where does one draw the line? In law enforcement, this encourages arbitrary and discriminatory enforcement.
The Model Penal Code of the American Law Institute (A.L.I.) adopts a standard similar to Section 30-9-10(A). It punishes intercourse where the perpetrator “knew that [the victim] suffers from a mental disease or defect which renders [the victim] incapable of appraising the nature of [the victim’s] conduct.” A.L.I. Model Penal Code and Commentaries, § 213.1 at 322 (1980). According to the commentary, this language was intended to constrict the reach to instances of severe mental incapacity. It adds that “[b]y specifying that the [victim] must lack ability to assess the ‘nature’ of [the victim’s] conduct, the statute is intended to avoid questions of value judgment and of remote consequences of immoderate acts.” Id. The A.L.I. indicates that this standard has been adopted by a number of jurisdictions and, in footnote 132, lists New Mexico among those. It should be noted, however, that the statute identified is NMSA 1953, Section 40A-9-20(A)(4), predecessor to Section 30-9-10(A)(4), with which we are concerned in this case. However, in comparing the earlier version with the version applicable to this case, it appears that only “mental disease,” as found in the earlier code, has been changed to “mental condition” in the newer version. Although arguably that change might be construed as intending to broaden the mental state of the victim, in my opinion it does not broaden it to the reach necessary to accommodate the state’s theory in this case.
It is also interesting to note that the A.L.I., in commenting on the Michigan code, had this to say:
Moreover, some cases covered by the Michigan law are more closely akin to breach of professional responsibility than to the law of rape. Thus, for example, a psychiatrist may take advantage of a well-known dependency phenomenon to persuade a patient who is already enamored of him to engage in intercourse. No doubt such behavior is reprehensible, and it should certainly raise the issue of his fitness to practice medicine. But it is far from clear that seduction of this sort should be subject to criminal sanctions____
A.L.I. Model Penal Code and Commentaries § 213.1 at 332.
In sum, I would hold that the theory upon which the state prosecuted defendant does not state a crime for CSP II or CSP III under the statute as currently worded. This is not to say that the legislature, if it chooses to do so, could not enact legislation to cover the situation presented by this case. In fact, Minnesota has done so. See Minn.Stat. § 609.345(l)(j) (a person who engages in sexual contact with another is guilty of criminal sexual conduct if the actor is a psychotherapist and the complainant is a patient or former patient and the sexual contact occurred by means of therapeutic deception. Consent by the complainant is not a defense). It is equally clear that the reprehensible conduct of defendant may well be subject to other sanctions or remedies: loss of license to practice, civil liability for damages for malpractice, and criminal fraud. See generally Coleman, supra, 41 Okla.L.Rev. 1, 21 n. 119; see also Don Moran v. People, 25 Mich. 356 (1872) (where physician fraudulently represented to patient that carnal connection was part of medical treatment, but judiciary could not strain existing criminal law to bring such cases within it).
Even if it could be said that the state’s theory comes within the purview of the statute, the evidence presented, considered in the light most favorable to the state, would not support a conviction. The state’s experts testified that victim, although aware of the nature of the act, did not understand its consequences. According to Dr. Adams, the psychologist called by the state, victim would not have understood that he would suffer at a later date from post-traumatic stress disorder resulting from one or more of these episodes with defendant. The question is, does this meet the proof necessary under the statutory language? I would hold that it does not.
That victim knew what was happening is not in question. He testified that “I allowed it to happen.” Although the state offered proof that on occasion defendant placed victim under hypnosis, it does not appear to be the state’s theory that victim was forced by reason of hypnosis to do something against his will. The purpose of this evidence, as I understand it through the testimony of Dr. Orne, was to simply show that hypnosis facilitated the act perpetrated by defendant, but that the real cause was the transference phenomenon.
With the state relying upon victim’s inability to understand the consequences of the act, the question is, does a later-suffered emotional disorder satisfy the requirement? In People v. Easley, 42 N.Y.2d 50, 396 N.Y.S.2d 635, 364 N.E.2d 1328 (1977), the court said that an understanding of coitus encompasses more than a knowledge of its physiological nature. It said that an appreciation of how it will be regarded in the framework of the societal environment and taboos to which the person will be exposed may be far more important. In other words, whether there is an awareness of the social or other costs of one’s conduct is a legitimate area of inquiry in determining whether one is so mentally defective that the protective shield of the penal law is invoked. Here, victim testified that, while he did not understand the “full spectrum” of what homosexuality entailed, he said he was uncomfortable and thought it was wrong.
There are many consequences that flow from intercourse, be it heterosexual or homosexual. In the heterosexual context, pregnancy, in either context, venereal disease. While these possible consequences of course must be considered by responsible sexual partners, be they male-and-male or male-and-female, the proper inquiry when discussing the ability to understand the nature or consequences of the act presents something different. In my view, in talking about the mental condition of the victim and his or her ability to understand, the proper inquiry should be more immediate and focus on that person’s ability to make a moral judgment as to whether he or she should allow this to be done.
We said in State v. Jimenez, 89 N.M. 652, 556 P.2d 60 (Ct.App.1976), that absence of consent is not an element of the crime as defined by the legislature. In that case, the defendant argued that absence of consent on the part of the victim was an inherently necessary element of the offense. Of course, if the victim is capable of understanding the nature or consequences of the act, then the factfinder never reaches the question of consent because there is no crime of rape. Thus, absence of consent would apply only where the victim is capable of understanding. If the victim is incapable of understanding, then you never reach the question of absence of consent.
The significance of Jimenez is that it makes clear that in order for there to be CSP II or III under the sections charged, the victim must be so mentally impaired as to be unable to understand the nature or consequences of the act. This does not contemplate, in my opinion, an awareness, as was true in this case, of the act, but a lack of appreciation of some future consequences. To allow such testimony to support a conviction would change the meaning of the statute. Additionally, it would permit a partner to sex to change it from consensual to CSP, as was the case here, by claiming later that such partner was unaware that the act would have an emotional effect on him or her. The same could be said of venereal disease or pregnancy.
The evidence shows victim left therapy in 1983 and did not return until 1987. According to Dr. Adams, victim had some reservations “because ... he knew what was going to happen.” The state charged defendant with eight counts of CSP for 1987. How can it be said that victim suffered from a mental condition which rendered him incapable of understanding the nature or consequences of the acts that occurred when, by his own admission, he knew what was going to happen? Surely, this is not rape.
For the reasons above, I concur in reversal with directions to dismiss the CSP counts.