Ketcham v. State

ROSE, Justice,

dissenting, with whom McCLINTOCK, Justice, joins.

This case presents a crisp legal question that must be answered by consideration of admittedly ambiguous statutes. The issue is whether appellant committed a criminal act-violated any of the laws of Wyoming-by having sexual intercourse with a 14-year-old girl.1 There are no factual disputes: The intercourse was consensual; appellant was 18 at the time; the girl was 14 at the time; and the two were less than four years apart in age.

The district court determined that appellant violated the indecent-liberties statute, § 14-3-105, W.S.1977, Dec. 1978 Supp., which provides:

“Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.”

We recently upheld this 1957 statute against the charge that it is unconstitutionally vague. Laws 1957, ch. 220, § 8; Sorenson v. State, Wyo., 604 P.2d 1031 (1979). There is no doubt but that the defendant-*1363appellant violated this statute, as recently construed in Sorenson. However, he attacks the indecent-liberties statute by arguing that it was repealed by implication by the sexual-assault statutes. His repeal-by-implication argument also encompasses the contention that, according to any proper resolution of the issue, the indecent-liberties statute must be harmonized with the conflicting sexual-assault statutes.

In 1977, the legislature enacted comprehensive statutes covering, inter alia, rape and statutory rape. Sections 6 — 4-301 through 6-4-313, W.S.1977. These sections very explicitly define a great variety of prohibited acts and categorize four degrees of sexual assault. Section 6-4-303(a)(v), supra, defining second-degree sexual assault, encompasses “statutory rape” when the victim is under twelve years of age. Section 6-4-305, supra, defining fourth-degree sexual assault, includes statutory rape when the victim is under sixteen years of age. It provides:

“An actor who is at least four (4) years older than the victim and who inflicts sexual penetration or sexual intrusion on a victim under the age of sixteen (16) years is guilty of sexual assault in the fourth degree.”

It is agreed by both sides that the aforesaid “statutory-rape” statute could not have been applied against the appellant because he is less than “four (4) years older than” the girl. Appellant charges that this statute is a clear legislative decriminalization of the consensual sexual activity which is the focus of this appeal.

ANALYSIS

The contradiction between the fourth-degree-sexual-assault statute and the indecent-liberties statute is inescapable. The fourth-degree-sexual-assault statute provides for a maximum of a one-year jail sentence for consensual sexual penetration or intrusion (defined in § 6-4-301(a)(viii) and (ix), W.S.19772 with a child under sixteen but not under twelve3 but only if there is a four-year age difference between the defendant and the child. On the other hand, the indecent-liberties statute provides for up to ten years in jail for any person who, under Sorenson, supra, so much as consensually touches the clothed breast of a girl under nineteen and provides no exception for the case when the defendant is close in age-or even younger-than the “victimized” child.

“ ‘[Legislative acts dealing with related matters must be considered in pari materia and the meaning of each such statute be correlated so as to give intelligent meaning to both whenever possible.’ ” State ex rel. Albany County Weed and Pest District v. Board of County Commissioners, Wyo., 592 P.2d 1154, 1157 (1979), citing Kuntz v. Kinne, Wyo., 395 P.2d 286, 288 (1964). Given an ambiguity in the statutes, we must search for the legislative intent. Basin Electric Power Coop. v. State Board of Control, Wyo., 578 P.2d 557, 561 (1978). We are not free to ignore the contradiction between the fourth-degree-sexual-assault ■statute and the indecent-liberties statute.

Appellant urged that we invoke the doctrine of repeal by implication to resolve the conflict. Repeal-by-implication analysis is, *1364of course, only one approach to determining legislative intent. Sutherland, Statutory Construction, Vol. 1A (4th Ed.), § 23.09, p. 223. We recently discussed this doctrine in Nehring v. Russell, Wyo., 582 P.2d 67, 73 (1978), where we said:

“Repeals by implication are not favored. [Citations] and while such implicit repeals have at times been found [Citations], the party so asserting bears ‘the burden of demonstrating beyond question that the legislative body by its later action evinced an unequivocal purpose of effecting a repeal.’ [Citation.] What must be shown is that the latter statute is so repugnant to the earlier one that the two cannot stand together, or that the whole subject of the earlier statute is covered by the latter one having the same object, clearly intending to prescribe the only rules applicable to the subject. [Citations] .. .. ”

I feel that repeal-by-implication analysis is not an appropriate way to resolve the conflict between the fourth-degree-sexual-assault statute and the indecent-liberties statute. The original indecent-liberties statute was enacted in 1957. Laws 1957, ch. 220, § 8.4 The sexual-assault statutes were enacted in 1977. Laws 1977, ch. 70, §§ 1 and 2. In 1978, the indecent-liberties statute was reenacted with inconsequential language changes. Laws 1978, ch. 25, § 1.

The 1978 legislative action, Laws 1978, ch. 25, contains this preamble:

“AN ACT to amend W.S. 14-1-101 through 14-9-106 and renumber as W.S. 14-1-101 through 14-7-104 relating to children; providing for a revision of Title 14 of the Wyoming statutes to eliminate obsolete or fully executed statutes, to conform conflicting statutes, to eliminate duplicitous or archaic language; conforming the numbering of sections and subsections to a uniform numbering system; providing that other acts adopted by the legislature during the same session in which this act is adopted shall prevail to the extent that such acts are in conflict with this act; and providing for an effective date.”

Had the 1978 legislative activity been merely a codification or renumbering, the following language from Sutherland, supra, at § 23.14, p. 242, would suggest that the 1978 reenactment of the indecent-liberties statutes should be ignored.

“By its very nature a codification usually consists of a mere reiteration of the existing laws and is usually intended to state them in a more concise and related form. Therefore a code is generally presumed to have no altering or repealing effect upon the existing law, unless the intent is clearly expressed.”

If we ignore the 1978 reenactment, appellant has a good argument that the indecent-liberties statute-insofar as it conflicts with the fourth-degree-sexual-assault statute-was repealed by implication in 1977.

On the other hand, if the 1978 legislative enactment was a “comprehensive revision,” then it would have served to reenact the indecent-liberties statute even if that statute had been repealed by implication in 1977, Sutherland, supra, § 23.13, p. 238.

I do not believe that the appellant has unequivocably demonstrated that the 1977 sexual-assault statute repealed the indecent-liberties statute by implication and that the indecent-liberties statute was not reenacted in 1978. Nor do I believe that *1365the State has unequivoeably demonstrated that any conflict between the fourth-degree-sexual — assault statute and the indecent-liberties statute was impliedly addressed by the legislature in 1978 when it overhauled Title 14 dealing with children, but without any consideration of the overlapping sexual-assault statutes concerning statutory rape.

Therefore, I am still left with the problem of resolving the conflict between the indecent-liberties statute, which would criminalize the conduct which is the focus of this appeal, and the fourth-degree-sexual-assault statute, which would decriminalize the same conduct.

I conclude that repeal-by-implication analysis does not produce a clear resolution of the conflict between these two statutes.

A possible hint of legislative intent behind the four-year requirement of the fourth-degree-sexual-assault statute may be gleaned by noting that the fourth-degree-sexual-assault statute criminalizing intercourse (or similar sexual activity) with a child under 16, only if the defendant is more than four years older than the “victim,” appears to track the Model Penal Code with respect to the age specifications. § 213.3(1) of the Model Penal Code provides:

“(1) Offense Defined. A male who has sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse, is guilty of an offense if:
“(a) the other person is less than (16) years old and the actor is at least (4) years older than the other person; or
Model Penal Code, American Law Institute, 1962.

The Model Penal Code refers us to discussions in the Fourth Tentative Draft (American Law Institute 1955), and at pages 253-254 of this draft the topic, “Youth of the Male,” is discussed:

“The rationale of statutory rape is victimization of immaturity. It seems necessary, therefore, to recognize that immature males may themselves be victims of adolescence rather than engaged in exploitation of others’ experience ... The most convenient way to give effect to the victimization rationale is to require a substantial age differential in favor of the male... Certainly, existing statutory provisions under the rape label as applied to sexual experimentation by a girl just under and a boy just over 16 seem harsh and unreasonable.”

We have no way of knowing whether the similarity between Wyoming’s fourth-degree-sexual-assault statute and the reproduced portion of the Model Penal Code is intentional or coincidental. Nonetheless, the above comment explaining the Model Penal Code provides a highly plausible legislative intent behind the requirement of a four-year age differential in our fourth-degree-sexual — assault statute. Indeed, it seems obvious that a requirement of a certain age difference for statutory rape prosecution reflects a policy designed to exclude from criminalization consensual sexual activity among minors closely related in age. No doubt, an impetus for such a policy is the awareness that sexual activity among minors is not uncommon.

Thus, while the Model Penal Code comments may provide some perspective from which to view the four-year age differential requirement of our fourth-degree-sexual-assault statute, Model Penal Code comments are, of course, inconclusive as they apply to our statute. And, of course, our sexual-assault and indecent-liberties statutes lack published commentary.

All in all, I am not confident that I can determine the legislative intent behind these two conflicting statutes. Since this is so, it seems appropriate that I make resort to our well-established rule that, “all doubts as to the construction [of penal statutes] are resolved in favor of the defendant.” Horn v. State, Wyo., 556 P.2d 925, 927 (1976). See, also, Title Guaranty Company of Wyoming, Inc., v. Belt, Wyo., 539 P.2d 357, 360 (1975); Brown v. Jarvis, 36 Wyo. 406, 256 P. 336, 337 (1927); State v. *1366Hall, 27 Wyo. 224, 194 P. 476, 488 (1920); and State v. Thompson, 15 Wyo. 136, 87 P. 433, 434 (1906).

Note should also be taken of a footnote in a recent United States Supreme Court decision:

“This view is consistent with the settled rule that ‘ambiguity concerning the ambit of a criminal statute should be resolved in favor of lenity,’ [citations] .... ” Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 1440 (fn. 10), 63 L.Ed.2d 715 (1980).

I would, therefore, have held that Wyoming law does not prohibit consensual sexual activity between a 14-year-old and an older person who is within four years in age.

Having arrived at this legal conclusion, I would have then held that appellant did not violate the laws of this state and that, therefore, his probation should not have been revoked.

The majority opinion presents a number of additional issues which should be addressed:

(1) The majority points out that the validity of the indecent-liberties statute was not addressed to the trial court and suggests that under Madrid v. State, Wyo., 592 P.2d 709, 710 (1979), the requirements for this court to notice plain error have not been met. I disagree. The error is clear from the record. The district court’s ruling is at variance with the correct interpretation of Wyoming law. Without the complained-of error, appellant would not be returned to jail; therefore, in losing his liberty he is being materially prejudiced. In applying an inapplicable law to take away appellant’s liberty, the district court denied appellant due process, thus giving constitutional dimensions to the court’s error.

(2) The majority argues that in a probation-revocation proceeding, the evidence need not prove violation of the conditions of probation beyond a reasonable doubt. I am baffled by the relevance of this proposition. There are no factual disputes in this case. The only dispute between the majority and the dissent in this case concerns questions purely of law.

(3) Even though the trial judge may have great discretion in determining if the evidence established that the probationer violated the condition of his parole, where the district court judge makes an error of law— as he did in this case-he will be said to have abused that discretion. “... An abuse of discretion has been said to mean an error of law committed by the court.... ” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

(4) The majority opinion points out that appellant agreed to the following condition of probation:

“ T will demean myself while at large in a law-abiding manner and live a worthy, respectable life, obey all local, state and federal laws, and conduct myself as a good citizen.’ ”

As I have explained above, I believe the State failed to demonstrate that appellant violated any applicable law. The district court did not base its probation revocation on the grounds that appellant’s behavior was not that of a “good citizen” or that appellant failed to live “a worthy, respectable life.” Had the district court revoked probation on such subjective grounds, the appellant would have likely successfully challenged the revocation on constitutional grounds. The appellant’s behavior in helping the girl to run away from her parents may offend us, but' since the State made no claim that the conduct was criminal, I see no legal significance to be ascribed to appellant’s behavior in helping the girl run away from home.

I would have reversed the revocation of probation for the simple reason that I do not believe appellant’s behavior was criminal under Wyoming law.

. It seems inappropriate to refer to the girl as the victim. She testified that she liked the appellant and had tried to avoid testifying against him, but that she had been told by the prosecuting attorney that she had to so testify. I v/ill refer to her as “the girl” in this opinion.

. These subsections read as follows:

“(a) As used in this act:
* * # * * ⅝
“(viii) ‘Sexual intrusion’ means any intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue or penis, into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse;
“(ix) ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission;”

. Section 6-4-303(a)(v), W.S.1977, reads:

“(a) Any actor who inflicts sexual penetration or sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituted sexual assault in the first degree:
“(v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim;”

. Section 8, ch. 220, Session Laws of Wyoming 1957, reads:

“It shall be unlawful for any person, including but not limited to parent, guardian or custodian knowingly to take immodest, immoral or indecent liberties with any such child or knowingly to cause or encourage any such child to cause or encourage another child to commit with him or her any immoral or indecent act.
“Any person who shall violate the provisions of this Section shall be deemed guilty of a felony and upon conviction thereof shall be fined in a sum of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) or imprisoned in the penitentiary not to exceed ten (10) years, or by both such fine and imprisonment.”