State v. Deyo

State v. Deyo (2004-179)

2006 VT 120

[Filed 22-Nov-2006]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2006 VT 120

No. 2004-179

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit

Anthony Deyo September Term, 2005

John P. Wesley, J.

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro,
for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Defender,
Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. REIBER, C.J. Defendant Anthony Deyo appeals his conviction
of aggravated sexual assault. Defendant was tried and convicted by a jury
of four counts: three counts of sexual assault on his child who was under
the age of sixteen and one count of aggravated sexual assault based on
repeated nonconsensual sexual acts as part of a common scheme or plan.
Defendant appeals the aggravated sexual assault conviction, claiming that
the trial court twice erred in instructing the jury on that count. We
affirm.

¶ 2. On December 27, 2001, the State charged defendant with three
criminal counts of sexual assault on T.D., a minor, for alleged violations
of 13 V.S.A. § 3252(b)(1) (prohibiting sexual acts with a person under the
age of sixteen who is the actor's child). Nearly two years later, on
October 17, 2003, the State amended the information to add a fourth count,
aggravated sexual assault, based on "repeated nonconsensual sexual acts as
a part of the actor's common scheme or plan." 13 V.S.A. § 3253(a)(9).
(FN1) A jury trial was held in December 2003. T.D. testified that between
September and December 2001, when she was thirteen years of age, her father
had sex with her ten to fifteen times. Prior to trial, defendant had
confessed to having sex with his daughter eight to twelve times over the
same period, but he later challenged his confession at trial. Defendant
was convicted of all four counts, and this appeal followed.

¶ 3. On appeal, defendant raises two claims of error in the trial
court's instructions to the jury: (1) in allowing the jury to use one of
the incidents of the charged sexual conduct as a predicate for finding the
element of "repeated" sexual acts for the aggravated charge; and (2) in
instructing the jury that, because the complainant was under sixteen at the
time of the alleged sexual acts, the acts were nonconsensual as a matter of
law.

I.

¶ 4. Defendant first argues that the trial court committed plain
error in violation of double jeopardy principles and legislative intent
because its instructions allowed the jury to convict him of aggravated
sexual assault based on "repeated" sexual acts by finding, in addition to
any acts proved in connection with the three individual counts, that only
one uncharged compounding act had occurred.

¶ 5. The trial court instructed the jury on the count of aggravated
sexual assault, in pertinent parts, as follows:

These elements are as follows: that between September 11th, 2001
and December 31st, 2001, at Rockingham, the defendant, Anthony
Deyo, one, engaged in repeated sexual acts with [T.D.]; two, at a
time when his child, [T.D.], was under the age of 16 years; three,
and that he intentionally engaged in the sexual acts; four, and
that the sexual acts were part of a common scheme or plan. . . .
As distinguished from counts one through three, count four does
not require that you find that particular acts occurred at
particular times. This is in recognition of the difficulty of
determining in retrospect the exact time of occurrence of sexual
acts. Rather, the State charges that in addition to the three
distinct acts, which are the subject of counts one through three,
Anthony Deyo engaged in other sexual acts with [T.D.].

Specifically, the State charges that on other occasions, the
defendant placed his penis in [T.D's] vagina and also that contact
occurred between Anthony Deyo's penis and [T.D.'s] mouth, and that
contact occurred between Anthony Deyo's mouth and [T.D.'s] vulva.
. . . If you find that one or more sexual acts occurred between
Anthony Deyo and [T.D.], in addition to any acts proved in
connection with counts one through three, the State will have met
its burden of proof as to the element of repeated sexual acts.
(Emphasis added.)

¶ 6. After delivering the above charge to the jury, but before
sending the jury to deliberate, the court conferred with counsel about its
instructions pursuant to Rule 30 of the Vermont Rules of Criminal
Procedure. After that conference, the court instructed the jury:

I need to make one more refinement, as to my instruction on count
four, regarding aggravated child sexual assault. . . . [I]t is
important that you be able to unanimously agree that the
particular acts, beyond those charged in counts one through three
did occur, and that you agree unanimously, what those acts were .
. . you all agree on what they were and that they, in fact did
occur. (Emphasis added.)

¶ 7. Defendant did not object to the jury instruction, and so we
review for plain error. V.R.Cr.P. 52(b); State v. Tahair, 172 Vt. 101,
104-05, 772 A.2d 1079, 1082 (2001). To rise to the level of plain error,
any claimed error must both seriously affect substantial rights and have an
unfair prejudicial impact on jury deliberations. In re Carter, 2004 VT 21,
¶ 21, 176 Vt. 322, 848 A.2d 281. Such an error exists "only in
extraordinary situations where it is obvious and strikes at the heart of
defendant's constitutional rights or results in a miscarriage of justice."
State v. Forant, 168 Vt. 217, 220, 719 A.2d 399, 401 (1998) (quotation
omitted).

¶ 8. Defendant argues that the trial court misstated the law when
it instructed the jury that if it found "that one or more sexual acts
occurred between Anthony Deyo and [T.D.], in addition to any acts proved in
connection with counts one through three, the State will have met its
burden of proof as to the element of repeated sexual acts," thereby
allowing the jury to use one of the single charges as a predicate for a
separate aggravated sexual assault conviction based on "repeated" sexual
acts. 13 V.S.A. § 3253(a)(9). Even if that instruction amounted to error,
we do not find plain error.

¶ 9. We view jury instructions in their entirety in assessing for
plain error, Carter, 2004 VT 21, ¶ 21, and we find error in a charge "only
when the entire charge undermines confidence in the verdict, and only in
extraordinary cases . . . ." State v. Carpenter, 170 Vt. 371, 374-75, 749
A.2d 1137, 1139 (2000). There is no plain error "if the charge as a whole
is not misleading." Forant, 168 Vt. at 220, 719 A.2d at 401. Instructions
that misstate the law at one point but correctly state it multiple times
elsewhere, without objection, do not usually give rise to plain error when
reviewed as a whole. See, e.g., Carter, 2004 VT 21, ¶ 22 (no plain error
where jury instruction twice omitted imminence element but explained the
element multiple times elsewhere, including immediately after both
omissions).

¶ 10. The court instructed the jury that they could find the
element of repeated acts to have been proved if they found "one or more"
acts in addition to the other counts; however, in the preceding paragraph
of the jury charge, the court stated: "in addition to the three distinct
acts, which are the subject of counts one through three, Anthony Deyo
engaged in other sexual acts with [T.D.]." After the Rule 30 conference,
the clarifying instruction, while not entirely illuminating, reinforced the
notion that the jury needed to find that more than one additional act
occurred. Moreover, in light of daughter's testimony that her father had
sex with her ten to fifteen times, we discern no prejudice, because that
testimony would have most likely been rejected or accepted in its entirety,
leaving the jury to believe that defendant either did not engage in sex
with his daughter at all or did so at least ten times. This was not plain
error.

II.

¶ 11. Next, defendant argues that the trial court committed plain
error when, on the element that the repeated sexual acts be
"nonconsensual," it delivered the following instruction to the jury: "As
with counts one through three, you must also find that [T.D.] was under the
age of sixteen at the time of any sexual act, making such acts
nonconsensual as a matter of law." Trial counsel and the court had
discussed the instruction at the charge conference and all agreed on the
instruction without further objection, so our review is for plain error.
V.R.Cr.P. 52(b); supra ¶¶ 7-8. We do not find any error.

¶ 12. We are not persuaded by defendant's argument that the court
"relieved the [S]tate of its burden to prove an essential element of
[aggravated sexual assault] beyond a reasonable doubt and improperly
directed the jury to convict Mr. Deyo without finding that the alleged
repeated sexual acts were 'nonconsensual.' " Instead, the trial court
instructed the jury as a matter of law on the meaning of "nonconsensual"
when the complainant is under sixteen years of age. The complainant's age
was not disputed.

¶ 13. Defendant was convicted of aggravated sexual assault for
subjecting the victim "to repeated nonconsensual sexual acts as part of the
actor's common scheme and plan." 13 V.S.A. § 3253(a)(9). The first three
counts-of which defendant was convicted and does not appeal-require only
that the defendant engage in a sexual act with his child under the age of
sixteen. 13 V.S.A. § 3252(b)(1). Section 3252(b)(1) is silent as to
consent, and defendant argues that the trial court wrongly imported the
principles of that statute into the aggravated sexual assault count, which
includes the explicit "nonconsensual" element. We do not agree.

¶ 14. Our paramount goal in interpreting a statute is to give effect
to the Legislature's intent. State v. O'Neill, 165 Vt. 270, 275, 682 A.2d
943, 946 (1996). "The definitive source of legislative intent is the
statutory language, by which we are bound unless it is uncertain or
unclear." In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845
A.2d 332. Where plain and unambiguous, we presume the Legislature intended
the express meaning of that language and we enforce it according to its
terms without resorting to statutory construction. Tarrant v. Dep't of
Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999).

¶ 15. The aggravated sexual assault statute requires that the
repeated sexual acts be "nonconsensual." 13 V.S.A. § 3253(a)(9).
"Nonconsensual" is not defined in the sexual assault statutory scheme, but
the nominal form of its opposite, "consent," is defined as "words or
actions by a person indicating a voluntary agreement to engage in a sexual
act." Id. § 3251(3). Elsewhere, it is commonly understood that
"nonconsensual" means the absence of mutual consent. See Webster's New
International Dictionary 567 (2d Ed. 1959) (defining "consensual" as
"existing or made by mere mutual consent"). We have further refined the
meaning of consent when the complainant is under the age of sixteen and
recognized a minor's inability to consent to sexual relations with an
adult. State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98 (1989)
("consent by a minor is not legally possible"); Northern Security Ins. Co.
v. Perron, 172 Vt. 204, 216, 777 A.2d 151, 160 (2001) ("[M]inors cannot
appreciate the nature and consequences of, and therefore lack the ability
to consent to, sexual activity for purposes of Vermont criminal law.").
Our statements in Thompson and Perron are consistent with the common law
that has existed in Vermont since its founding, and with the common law of
England, on which our common law was based. See 1 V.S.A. § 271 (adopting
the common law of England where such "is not repugnant to the constitution
or laws" of Vermont; substantially unchanged since enacted at R. 1787, p.
30); see also Hazelton, 2006 VT 121, ¶ 28 (tracing development of the
presumption that minors cannot consent to sexual acts). We believe that
the long-settled understanding that minors cannot consent to sexual
activity in all but limited circumstances renders the statutes in question
unambiguously applicable to the facts of this case. The concurrence urges,
however, that the statutes should be construed narrowly, to require proof
of nonconsent in cases where an aggravated sexual assault charge is based
on repeated sexual assaults by an adult on a minor.

¶ 16. It is well settled that statutes in derogation of the common
law are to be construed narrowly. See 3 Sutherland Stat Const § 61.01 (5th
ed. 1992) (citing cases). We have held that, where statutes covering a
subject are more narrow than the common law, the common law remains in
force as to cases outside the scope of the statute. State v. Sylvester,
112 Vt. 202, 207, 22 A.2d 505, 508 (1941). Here, the statutes covering the
subject of consent by minors to sexual activity with adults, while they do
describe certain instances in which minors can give consent, do not do away
with the common law that does not generally recognize consent by minors to
sexual activity. Rather, by specifically enumerating those limited
circumstances in which a minor can consent, the Legislature has only
reinforced its adherence to the common law. Thus, the most reasonable
construction of the statutes is that a minor is legally incapable of
consenting to sexual intercourse with an adult except in the very narrow
circumstances in which the Legislature has explicitly stated that a minor's
consent will be effective. See In re M. and G., 132 Vt. 410, 416, 321 A.2d
19, 23 (1974) ("[T]he general principle is that the legislature may fix the
time at which persons become competent to do any act or perform any
duty.").

¶ 17. If we recognize that under Vermont law a child has no general
ability to consent to sexual acts with an adult, such acts must be
"nonconsensual" as a matter of law except under the exceptional
circumstances defined by the Legislature. Where a statute includes both
children and adults in its potential class of complainants, as does
aggravated sexual assault based on repeated nonconsensual acts, the legal
principle that children cannot consent to sex with adults does not change.
What is required to prove that the sexual contact was "nonconsensual" will
therefore vary depending on the complainant's age. This accords with the
legislative intent behind § 3253(a)(9) which, as we have previously
recognized, is that "repeated sexual assaults during an assaultive course
of conduct or series of exertions of power will result in harsher
punishment." State v. Fuller, 168 Vt. 396, 402, 721 A.2d 475, 480 (1998).
Sexual acts between a child and an adult necessarily involve exertions of
power: "The legislature, among others, would certainly be surprised to find
that sexual assault on a minor does not involve force or aggression, and is
consensual, even though consent by a minor is not legally possible."
Thompson, 150 Vt. at 644, 556 A.2d at 98 (citation omitted). The logic of
Thompson applies, a fortiori, to sexual acts whose victim is the child of
the adult perpetrator; the Legislature, having assigned greater penalties
to such acts than to other sexual assaults on minors, would be doubly
surprised to learn that a minor child can legally consent to sexual contact
with his or her parent.

¶ 18. The concurrence argues that the "most obvious" reason our
construction of the statute is erroneous is that the penalty for aggravated
sexual assault is an "obvious mismatch" with the underlying offense. Post
¶ 33. Aggravated sexual assault is punishable by a maximum term of life
imprisonment or a $50,000 fine. 13 V.S.A. § 3253(b). We do not agree with
the concurrence that this penalty "should give us pause in determining the
scope of the crime." Post ¶ 33. First, it is the Legislature that has
determined the scope of the crime, not this Court. Second, the three
counts of sexual assault of which defendant was convicted each carried a
potential penalty of thirty-five years imprisonment and a $25,000 fine. 13
V.S.A. § 3252(b). This certainly evinces a legislative determination that
sexual assault of a minor is a very serious matter, to be punished severely
even when the contact occurs only once. When the contact occurs more than
once, a doubling in the potential fine and an increase in the maximum
available sentence from thirty-five years to life hardly give rise to "an
obvious mismatch between the punishment and the offense" as the concurrence
would have it. Post ¶ 33. It certainly does not compel a narrow
construction that would ignore the widely accepted principle that minors
cannot consent to sex with adults. The May 2006 amendments increasing the
penalty for sexual assault on one's minor child also militate against the
concurrence's reading.

¶ 19. Further, we do not believe that the Legislature intended to
impose an additional burden of proving an element of force-to prove
aggravated sexual assault, rather than ordinary sexual assault-when the
complainant is a child. To prove sexual assault on a minor, the State need
produce only "a calendar and the person's birth certificate." State v.
Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). But sexual assault
on a minor is limited, by definition, to a class of victims that includes
only minors; aggravated sexual assault based on repeated nonconsensual acts
applies to both adult and child complainants. What makes the sexual
assault aggravated is simply the repeated nature of the conduct. 13 V.S.A.
§ 3253(a)(9) (sexual assault is aggravated where the victim is subjected to
"repeated nonconsensual sexual acts as part of the same occurrence" or to
"repeated nonconsensual sexual acts as part of the actor's common scheme
and plan"). According to defendant's argument, if the victim were an adult
the State would only need to prove that an assault had occurred and that
the assault was repeated to show aggravated sexual assault, whereas if the
victim were a child it would need to prove that the assault was both
repeated and "nonconsensual." We do not believe that the Legislature
intended the State to face that added burden when proving aggravated sexual
assault against a minor. This approach accords with the "enhanced concern
for the protection and well-being of minors and the gravity we attach to
crimes involving the exploitation of minors." Barlow, 160 Vt. at 529, 630
A.2d at 1300.

¶ 20. In this regard, the concurrence argues that our
interpretation creates an unnecessary inconsistency between the aggravated
sexual assault statute and the definition of "consent" in 13 V.S.A. §
3251(3), where the term is defined as "words or actions by a person
indicating a voluntary agreement to engage in a sexual act." On the
concurrence's reading, or so it appears, a child of thirteen is capable of
"voluntary agreement to engage in a sexual act" with her father, insulating
the father from prosecution for aggravated sexual assault unless the
prosecution shows that the daughter did not give her "actual consent." As
we noted in Thompson, this would no doubt surprise the Legislature.

¶ 21. The concurrence places great weight on a line of California
cases which, the concurrence urges, establish the proposition that minors
are legally capable of consent to sexual acts. Those cases, however, arose
from a very different statutory scheme than ours, and are therefore not
persuasive. The first case, whose dicta the concurrence reproduces at some
length, is People v. Hillhouse, 1 Cal. Rptr. 3d 261 (Ct. App. 2003). In
Hillhouse the adult defendant was charged with numerous violations of a
penal code provision criminalizing sexual contact with persons incapable of
giving legal consent because of developmental disability. Id. at 265. The
defendant argued, and the trial court agreed, that the provision did not
apply to his acts because the victim was a minor and was incapable of legal
consent merely by reason of his minority, not "because of" his
developmental disability. Id. at 265-66. Rejecting this nimble
interpretation, the appellate court relied on 1970 statutory amendments
which substantially altered the scheme governing sexual contact with minors
in California. Id. at 268. The court noted that, prior to 1970, the
California Penal Code, like our own statutes at the time of the offenses in
this case, (FN2) had punished sexual contact with minors without regard to
consent. Id. The court further noted that pre-1970 California courts had,
"consistent with the way our Penal Code treated such conduct prior to [the
amendments]," generally held that "the concept that a minor female could
not consent to sexual intercourse justified statutory treatment of the act
in the same manner as other types of nonconsensual sexual intercourse."
Id. In 1970, however, the California Penal Code was amended, and the crime
of having consensual sexual intercourse with a minor was removed from the
general rape statute. Cal. Penal Code § 261.5. The new offense, unlawful
intercourse with a minor, carries lesser penalties than the former
statutory rape crime. Id. (FN3) Nonconsensual sexual acts with minors
are, of course, still punishable under California's general rape statute.
Id. § 261.

¶ 22. The Hillhouse court went on to cite People v. Tobias, 21 P.3d
758 (Cal. 2001), which the concurrence also cites, for the proposition that
the California legislature, when it created a separate crime of unlawful
sexual intercourse with a minor, "implicitly acknowledged that, in some
cases at least, a minor may be capable of giving legal consent to sexual
relations." Hillhouse, 1 Cal. Rptr. 3d at 268 (citing Tobias, 21 P.3d at
762) . It bears stating explicitly, given the concurrence's reliance on
Hillhouse, that the Vermont Legislature has not done so to the same extent.

¶ 23. The statutory scheme relevant to the instant case reflects a
legislative determination that, apart from an exceedingly narrow exception
for married people under age sixteen, minors cannot consent to sexual acts
in Vermont. Even that exception does not squarely support the
concurrence's position, given that minors under sixteen cannot
independently consent to the marriage underlying their later ability to
consent to sex with their adult spouse. See supra, n.2. Like the
statutory scheme in California before the 1970 amendments, our statutes
severely penalize sexual contact by adults with minors without regard to
consent and do not contain the carefully drawn, age-specific exceptions now
contained in the California Penal Code. (FN4) Absent the relatively clear
legislative direction that compelled the result in Hillhouse, we cannot
agree with the concurrence's conclusion that the Vermont Legislature has
wholly abrogated the common-law notion that minors cannot consent to sexual
contact with adults. See Record v. Vt. State Highway Bd., 121 Vt. 230,
236-37, 154 A.2d 475, 480 (1959) ("[W]e are not to presume that the
legislature intended to work any change in the common law beyond what the
statute itself declares in either express terms, or by unmistakable
implication.") (citing State v. Hildreth, 82 Vt. 382, 384, 74 A. 71, 72
(1909)). (FN5)

¶ 24. Defendant also argues that 13 V.S.A. § 3254 comprehensively
defines nonconsent for purposes of the sexual assault statute, and that the
principle of "expressio unius est exclusio alterius" (the expression of one
thing is the exclusion of another) means that where the Legislature defined
particular circumstances in which nonconsent would be presumed, it did not
intend to include others. Grenafege v. Dep't of Employment Sec., 134 Vt.
288, 290, 357 A.2d 118, 120 (1976). Section 3254 instructs that in a
prosecution for any crime in the sexual assault or lewd and lascivious
statutory schemes:

(1) Lack of consent may be shown without proof of resistance;
(2) A person shall be deemed to have acted without the consent of
the other person where the actor:
(A) Knows that the other person is mentally incapable of
understanding the nature of the sexual act or lewd and lascivious
conduct; or
(B) Knows that the other person is not physically capable of
resisting, or declining consent to, the sexual act or lewd and
lascivious conduct; or
(C) Knows that the other person is unaware that a sexual act or
lewd and lascivious conduct is being committed; or
(D) Knows that the other person is mentally incapable of
resisting, or declining consent to, the sexual act or lewd and
lascivious conduct, due to mental illness or mental retardation as
defined in section 3601 of Title 14.

13 V.S.A. § 3254. Defendant's argument is unconvincing, because § 3254 is
not an exhaustive list of situations in which lack of consent may be found.
Further, the maxim defendant cites has less force when its use would result
in derogation of a long-settled common law principle. See 3 Sutherland
Stat Const § 61.02; accord Record, 121 Vt. at 236-37, 154 A.2d at 480.
Section 3254(1) is an open-ended instruction that proof of resistance is
not required to withstand a consent defense when that defense is otherwise
available. Section 3254(2) simply describes four instances in which, based
on some particular knowledge on the part of the actor, that actor is deemed
to have acted without consent. We are not persuaded by the argument that,
in creating § 3254, the Legislature intended to comprehensively define
nonconsent.

¶ 25. Finally, defendant urges us to apply the rule of lenity on
the grounds that even if it is arguable that the nonconsensual element does
not apply when the complainant is under sixteen years of age, the lack of
clear direction from the Legislature means that we should construe the
statute in defendant's favor. State v. Sidway, 139 Vt. 480, 484, 431 A.2d
1237, 1239 (1981). We do not find this argument compelling. When
statutory provisions unambiguously cover a defendant's conduct, the rule of
lenity does not apply. See id. (holding that the hit-and-run statute
applied to a defendant despite her claim that she lacked knowledge that she
had caused damage). The legal principle that children cannot consent to
sexual acts with adults has long been stable, and is not changed by the
Legislature's use of the term "nonconsensual" in the modern aggravated
sexual assault statute.

¶ 26. It was not error to instruct the jury that sexual acts between
an adult and his minor child under age sixteen were nonconsensual as a
matter of law. The fair administration of justice does not require that a
jury be instructed that the consent defense is available to an adult
charged with aggravated assault for repeatedly sexually assaulting his
thirteen-year-old child.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

¶ 27. DOOLEY, J., concurring in part and dissenting in part. In
these two cases, State v. Deyo, 2006 VT 120 and State v. Hazelton, 2006 VT
121, the majority has adopted a convoluted construction of the sexual
assault statutes to avoid the obvious conclusion that they say what they
mean and mean what they say. To reach this construction, we must also hold
that the Legislature adopted the same crime twice, although it used
entirely different language in doing so. The construction is inconsistent
with basic canons of statutory construction as well as a presumption that
the Legislature did not enact duplicative statutes. Thus, I dissent from
Part III of the majority opinion in Hazelton, and, although I concur in the
result, I disagree with the analysis in Part II of the majority opinion in
Deyo.

¶ 28. The consideration of these cases and issuance of these
opinions at the same time offers a unique opportunity to reach a consistent
and coherent construction of the statutes as related to sexual assault on a
minor. Unfortunately, the majority fails to reach the correct construction
because it concludes, without any support in the statutory language or
evidence of legislative intent, that the Legislature intended to adopt the
common law doctrine that a minor cannot consent to a sexual act. Under the
language of the statutes, that conclusion is wrong.

¶ 29. In approaching this dissent, I am reminded of the well-worn
maxim that when a decision uses the word "clearly," it is a certain signal
that the opposite is true. Here, the majority states in Deyo that the
"statutes in question unambiguously" apply to this case. 2006 VT 120, ¶
15. The one thing that is clear about the issue before us is that the
statutes do not unambiguously state the rule that the majority reaches.
The wording chosen is a strong signal of this point.

¶ 30. The majority's point expressed over and over again in various
statements is that because the common law stated that a minor, (FN6) or a
person under ten years of age, cannot consent to a sexual act, therefore a
statute using the term "consent" or any of its derivatives must adopt the
common law rule. If the majority actually adopted the common law rule,
that position would be consistent with the statutory construction rule,
cited and centrally relied upon by the majority, that the "common law is
changed by statute only if the statute overturns the common law in clear
and unambiguous language." Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d
1301, 1303 (1986). But the rule the majority adopts is actually the
following based on the current version of the relevant statute: A person
under sixteen years of age cannot consent to a sexual act with another
person unless: (1) the person is fifteen years of age and the other person
is under nineteen years of age, or (2) the persons are married. This rule
is so different from the common law rule that its relationship to the
common law rule is barely recognizable. The enormous difference is a
demonstration that the Legislature has covered "the entire subject matter"
statutorily and the common law is no longer determinative. Id.

¶ 31. With that overview in mind, I will return to the beginning.
There are three primary statutes involved in these cases; at the time of
the offense they existed in the following versions. The first is 13 V.S.A.
§ 3252(a), the basic sexual assault statute. It provides:

(a) A person who engages in a sexual act with another person and
(1) Compels the other person to participate in a sexual act:
(A) Without the consent of the other person; or
(B) By threatening or coercing the other person; or
(C) By placing the other person in fear that any person will
suffer imminent bodily injury.

Id. The second is the statutory rape statute, also contained in § 3252(a).
It provides:

(3) The other person is under the age of 16, except where the
persons are married to each other and the sexual act is
consensual[.]

Id. The third is the aggravated sexual assault statute, 13 V.S.A. §
3253(a). It provides in relevant part:

(a) A person commits the crime of aggravated sexual assault if
the person commits sexual assault under any one of the following
circumstances:

. . .

(9) The victim is subjected by the actor to repeated nonconsensual
sexual acts as part of the same occurrence or the victim is
subjected to repeated nonconsensual sexual acts as part of the
actor's common scheme and plan.

Id. The maximum penalty for aggravated sexual assault is life
imprisonment. Id. § 3253(b).

¶ 32. The statutes are closely related, and must be construed in
pari materia, a point on which the majority seems to agree. In developing
a complete and consistent construction when applied to minor victims, it is
appropriate to start with the aggravated sexual assault statute, the
subject of Deyo. The majority construes § 3253(a)(9) to adopt the common
law rule that a minor cannot consent to sexual contact. (FN7) Thus, if the
defendant performs repeated sexual acts with a minor in the same occurrence
or part of a common scheme or plan, defendant has committed aggravated
sexual assault. Under our decision in State v. Fuller, 168 Vt. 396, 402,
721 A.2d 475, 480 (1998), "repeated" means twice.

¶ 33. The majority responds to some reasons why its construction
might be erroneous-I consider these below-but ignores the most obvious one.
Aggravated sexual assault is a life imprisonment crime, essentially the
maximum penalty under our law. This penalty applies to the most heinous of
crimes, like murder. To hold that it applies to consensual sexual activity
of a male of nineteen years or older and a female under fifteen years is
wholly disproportionate to other offenses for which the penalty is
reserved. I don't think it is an answer to the extreme nature of the
punishment that sexual conduct must occur twice or that conduct that is
consensual in fact is deemed nonconsensual by the law. While I recognize
that the Legislature, and not this Court, determines the range of
permissible punishment for an offense, the obvious mismatch between the
punishment and the offense should give us pause in determining the scope of
the crime.

¶ 34. On this point, the recent amendment to the sexual assault
statutes is relevant. While narrowing the crime of statutory rape, the
Legislature lowered its maximum penalty to twenty years in prison from
thirty-five years. 13 V.S.A. § 3252(f)(2). At the same time it
established a mandatory minimum sentence for aggravated sexual assault, the
offense involved in Deyo. That mandatory minimum sentence is normally ten
years in jail, but in special circumstances it can be reduced to five yeas
in jail. Id. § 3253(c)(1),(2). A person subject to the mandatory minimum
cannot have the sentenced reduced "for probation, parole, furlough, or any
other type of early release" until the minimum is served. Id. §
3253(c)(1). Thus, while reducing the penalty for one incident of statutory
rape, the Legislature has made even harsher the sentence for repeated
nonconsensual sexual acts.

¶ 35. The second major objection to the majority's conclusion is it
creates unnecessary inconsistencies in statutes that must be read in pari
materia. The word "consent," or its derivatives, is used three times in
the statutes that define the crime of sexual assault and aggravated sexual
assault, the statutes we are considering. It is also defined in § 3251(3)
and § 3254. In general, the usage in these statutes is wholly inconsistent
with the definition the majority has adopted.

¶ 36. The first inconsistency is with the definition of "consent" in
13 V.S.A. § 3251(3): "words or actions by a person indicating a voluntary
agreement to engage in a sexual act." Nowhere does the definition convey
that voluntary agreement by a minor is not consent, the holding of the
majority. Indeed, the plain meaning of the words is to the contrary. The
majority has no explanation for this inconsistency other than that the
common law, not the statute, defines consent. Where the Legislature has
taken on itself the responsibility of defining consent, that explanation is
wrong.

¶ 37. The second, and most important, inconsistency is that the one
usage from which the meaning of consent can be determined on the exact
question before us is contrary to the majority's holding. Thus, the
statutory rape provision, § 3252(a)(3), provides that a person commits
sexual assault if the "other person is under the age of 16, except where
the persons are married to each other and the sexual act is consensual."
(Emphasis supplied.) Obviously, the use of the term "consensual" does not
depend upon the age of the victim; if it did, the statute would be
nonsensical. It means exactly as the definition in § 3251(3) provides.
(FN8)

¶ 38. The current statute carries forward the usage from the former
rape statutes, 13 V.S.A. §§ 3201 & 3202, now repealed. The statutory rape
provision, § 3201, criminalized sexual acts by a person over sixteen years
of age with a female under the age of sixteen "with or without her
consent." (FN9) The companion provision applicable to a defendant under
the age of sixteen years, § 3202, made it a misdemeanor to "carnally know"
a female under sixteen years of age "with her consent," and a felony if "by
force and against her will." At least as to a minor defendant under
sixteen years of age, the consent of the minor victim determined whether a
crime had been committed. The use of the term "consent" makes clear that
it means consent in fact without regard to her age.

¶ 39. Again, the recent amendment to the statute undercuts the
majority's position. The Legislature narrowed the offense of statutory
rape so that consensual sexual activity between a child at least fifteen
years of age and another person of eighteen years of age or less is not
statutory rape. 13 V.S.A. § 3252(c)(2) (2006). In doing so, the
Legislature again used the term "consensual" in a context that makes clear
it means consent in fact. Thus, under the amendment a fifteen year old is
capable of consenting to sexual activity with an eighteen year old, but in
the absence of such consent, the sexual activity is statutory rape. Again,
the Legislature used the exact term the majority is construing in a way
inconsistent with the majority's construction and in a statute that must be
read in pari materia with the statute the majority is construing. (FN10)

¶ 40. Despite the statutory language, virtually all of the
majority's rationale is based on cases that apply and explain the statutory
rape provision, at least as it existed at some time in the past. The
primary precedent is State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98
(1989), stating that "consent by a minor is not legally possible." The
language is a description of why consent is not generally a defense to
statutory rape. It is not a quote from or construction of the statutory
rape statute, or any other statute. No Vermont statute has ever stated
that consent by a minor to a sexual act is legally impossible. Indeed, the
statutory rape statutes have consistently made clear that consent of the
minor victim is possible under specific circumstances and can be a full
defense, making the statement in Thompson wrong if read as a description of
those statutes. The majority has confused the rationale for a statute with
its terms and acted as if the court-derived rationale is statutory
language. Thompson and the other similar cases are not "decisions
interpreting the very words we are called on to construe in this case," as
the majority claims. Deyo, 2006 VT 120, ¶ 23 n.5. They do not provide
support for the majority's construction of consent as it is used in §
3253(a)(9). This conclusion is made particularly clear by the recent
amendment that makes the efficacy of consent dependent both on the age of
the victim and the age of the perpetrator.

¶ 41. We are not the first court to face the need to make our
rhetoric on statutory rape consistent with the statutory language. This
question is discussed in detail in People v. Hillhouse, 1 Cal. Rptr. 3d 261
(Ct. App. 2003), where defendant argued that the statutory crime covering
victims incapable of giving consent to sexual acts because of a disability
did not apply to a minor victim because the victim was otherwise "incapable
of giving legal consent to sexual acts." Id. at 263. In rejecting
defendant's argument, the court discussed the dicta in court decisions that
minors cannot consent to sexual acts:

In any event, even if we were inclined to do so, we perceive no
need to interpret the language of these provisions restrictively,
because in our view their plain language creates no impermissible
overlap or conflict with the statutory provisions governing sexual
contact with minors. Both the trial court and [defendant] have
focused on the concept of "legal consent," reasoning that a
minor's inability to give legal consent to sexual conduct due to
age means that the Legislature could not have meant to include
them among those who are unable to give legal consent due to
mental disability. However, although common parlance (even that
indulged in by courts) tends to suggest that minors cannot consent
to sexual contact, none of the statutory provisions which
specifically govern that contact says such thing. To the
contrary, the concept of consent, whether legal or actual, is
actually irrelevant to the determination of whether those statues
have been violated.

The statutes . . . make no reference to a minor's ability or
inability to consent to sexual contact. They merely implement a
public policy making the described acts criminal without regard to
such consent.

Id. at 267-68; see also Donaldson v. Dep't of Real Estate, 36 Cal. Rptr. 3d
577, 588 (Ct. App. 2005) (the phrase "age of legal consent" has "passed
into lay usage and been incorporated into folk law"). Hillhouse exactly
describes the situation before us in this case. (FN11)

¶ 42. The third inconsistency is with the provisions of § 3254, a
statute that provides guidance to determine whether there has been consent,
but again fails to mention that a minor cannot consent to a sexual act as
the majority holds. The majority's response to defendant's reliance on
this section is that "§ 3254 is not an exhaustive list of situations in
which lack of consent may be found." Deyo, 2006 VT 120, ¶ 24. I agree
that § 3254 is not exhaustive and is not intended to comprehensively
address the meaning of lack of consent. Id. The latter function is
assumed by the definition of consent in § 3251(3), which as discussed above
is wholly inconsistent with the majority's holding. The section is,
however, instructive.

¶ 43. In part, the section deals with the exact issue before us-the
capacity of the victim to consent. Thus, § 3254(2)(A) provides that the
defendant acted without consent where the defendant "[k]nows that the other
person is mentally incapable of understanding the nature of the sexual act
or lewd or lascivious conduct." There is no reason from the language why
the lack of mental capacity cannot be caused by young age. Thus, if the
majority's conclusion is correct, it is a glaring omission for the statute
not to state that the perpetrator's knowledge is irrelevant if the lack of
capacity is based upon young age and consent is impossible. (FN12) See
Hillhouse, 1 Cal. Rptr. 3d at 266-67 (emphasizing that the similar
California statute concerning mental incapacity nowhere indicates that the
victim must be an adult). Obviously, the statute relates to consent, in
fact, and not consent in law as would be required by the majority's
holding.

¶ 44. The third major objection to the majority's construction of
"consent" is to the consequences of this construction as reached in
Hazelton. The holding of Hazelton is that with respect to a victim under
sixteen years of age, § 3252(a)(1)(A) and § 3252(a)(3), two of the statutes
quoted above, set forth the same crime so that a defendant cannot be
convicted under both. This is true primarily because the element of
consent required for a conviction under § 3252(a)(1)(A) is met as a matter
of law by the victim's age. Thus, the conclusion of Deyo that consent of a
minor is legally impossible is now extended to hold that the Legislature
improperly enacted two separate identical crimes and conviction of only one
is valid. What Hazelton really demonstrates is that the holding of Deyo is
wrong, and the crimes are separate.

¶ 45. I believe that we have rejected the majority's analysis in the
early case of State v. Wheat, 63 Vt. 673, 22 A. 720 (1891). In Wheat, the
prosecution charged defendant with assault with intent to commit rape by
assaulting the victim to carnally know and ravish her against her will. At
trial, the prosecution met its proof burden by showing that the victim was
under fourteen years of age, then the cut-off age for statutory rape. This
Court reversed, holding that the prosecution had to prove that defendant
acted without the consent of the victim, irrespective of the victim's age.
We held:

The offense of having carnal knowledge of a female person against
her will, is distinct from that of having carnal knowledge of one
under the age of fourteen with her consent, although both offenses
are rape. In the first offense, the question of age is not
involved. In the second offence, it is the age of the victim
which eliminates the element of consent.

Id. at 675, 22 A. at 720. Under the majority's analysis in Hazelton, the
question of age is centrally "involved" to the point that it is
determinative.

¶ 46. The majority's reading of Wheat is that the result only
occurred because the State charged defendant with rape, not statutory rape,
and it was unfair for the prosecution to obtain a conviction without
proving lack of consent. That reading is possible only if there is such an
offense as nonconsensual rape of a young child, an offense the majority
finds is impossible. Thus, under the majority's view of Wheat, the
prosecution was required to prove the elements of a non-crime.

¶ 47. More important, the situation in Wheat as described by the
majority is exactly the situation present in Hazelton. Over and over
again-in opening argument, in closing argument, and in response to
defendant's motion to dismiss one of the offenses-the prosecution stated
that it had charged defendant with nonconsensual rape, as well as statutory
rape, and assumed the burden to prove lack of consent in fact. If the
prosecution could assume that burden in Wheat, it could do so here, and the
nonconsensual rape charge contained an element-lack of consent in fact-not
present in the statutory rape charge. Whether generally or in the context
of the actual Hazelton charges, Wheat controls the disposition of Hazelton.

¶ 48. We should reach the same result if we look at the duplicative
offense question the majority has decided. As the majority correctly
points out, according to the analysis in Blockburger v. United States, 284
U.S. 299 (1932), two offenses are considered the same offense for double
jeopardy purposes unless each statutory provision "requires [additional]
proof of a fact that the other does not." State v. Grega, 168 Vt. 363,
382, 721 A.2d 445, 458 (1998) (citing Blockburger); see Hazelton, 2006 VT
121, ¶ 24. For our purposes, the most important aspect of the Blockburger
analysis is that where one offense requires proof of a fact that the other
does not, "the Legislature is presumed to have authorized cumulative
punishment under the two statutory subsections because each subsection is
presumed to define a distinct crime." State v. Ritter, 167 Vt. 632, 633,
714 A.2d 625, 625 (1998) (mem.) (emphasis added). It is this presumption
of constitutionality that guides our double jeopardy analysis.

¶ 49. The majority claims that although "the differences between
the two crimes may be apparent, they are not real." Hazelton, 2006 VT 121,
¶ 26. In reaching this holding, the majority says that the "Legislature
is free to punish the same conduct under two statutes, but its intent to do
so must be clear." Id. ¶ 39. It is the corollary of this rule that is
the most significant here, that each statute "is presumed to define a
distinct crime." Ritter, 167 Vt. at 633, 714 A.2d at 625. If we apply
that presumption, we must hold that the nonconsensual rape section, 13
V.S.A. § 3252(a)(1)(A), and the statutory rape provision, id. § 3252(a)(3),
do define separate crimes.

¶ 50. The real problem with the majority's analysis is that the
corollary, as stated in Ritter, is ignored. Despite the fact that Hazelton
and Deyo are issued on the same day, the statutory construction problem is
not analyzed with an understanding that the consequence of the statutory
construction chosen in Deyo is that the Court must hold that the
Legislature has adopted the same crime twice, although in entirely
different wording. As Ritter says, the presumption is to the contrary, but
that presumption never enters the analysis to suggest a different statutory
interpretation-the interpretation in this dissent. As I said at the
beginning, the advantage of considering both cases together is that this
Court can see the full consequence of each ruling. The full consequence is
ignored by the majority's analysis, and the Blockburger presumption as
explained in Ritter is also ignored.

¶ 51. The obvious plain meaning of the statutory scheme is that the
two subsections define separate crimes because consent in § 3252(a)(1)(A)
means consent in fact as defined in § 3251(3). Thus, if an adult defendant
commits a consented-to sexual act with another person of age fifteen or
less, the defendant is guilty of statutory rape in violation of §
3252(a)(3). If the other person does not consent to the sexual act, and is
compelled to participate, defendant is also guilty of sexual assault under
§ 3252(a)(1)(A). For purposes of this crime, consent is determined by the
definition in § 3251(3) and not the age of the other person. In this case,
the Blockburger presumption is consistent with the plain meaning of the
language. Even if it were not, any ambiguity in the meaning of the
statutes should be resolved under the Blockburger presumption.

¶ 52. This construction is consistent with the likely intent of the
Legislature. Rather than intending to criminalize the exact same conduct
twice, the Legislature drew a distinction between a circumstance where a
minor consents to sexual activity without coercion and a situation where a
minor is coerced into having sex. The latter is a separate and additional
crime because of the presence of the coercion. This interpretation is
supported by the presence of the word "compels" in § 3252(a)(1). The
majority has read that word out of the statute, holding that each of the
alternative elements in § 3252(a)(1)(A), (B) and (C) are alternative
methods of compulsion. That may be a fair construction of (B) and (C)
because each of these elements involve an element of compulsion. It is not
a fair construction of (A), however, if the language means only that the
victim is under sixteen years of age, because the majority has read
compulsion out of the element. As the majority emphasizes, this is a
strict liability crime provable only by "a calendar and the person's birth
certificate." State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301
(1993); see Deyo, 2006 VT 120, ¶ 19. Thus, the Legislature's intent to
criminalize only compelled behavior is violated by the majority's
construction of § 3252(a)(1)(A).

¶ 53. Finally, I believe the weight of the decisions from other
states is consistent with this dissent and not the majority analysis. I
say this recognizing that using persuasive authority on statutory
construction questions must be done carefully because of differences in
statutory language and schemes. In addition to Hillhouse, decisions that
are inconsistent with the majority opinion, particularly in Hazelton,
include People v. Tobias, 21 P.3d 758, 758 (Cal. 2001) (FN12) (the
antecedent for Hillhouse); Donaldson, 36 Cal. Rptr. 3d at 584-89; State v.
Cahill, 845 P.2d 624, 627-28 (Kan. 1993); Commonwealth v. Duffy, 832 A.2d
1132, 1138-41 (Pa. Super. 2003); and May v. State, 919 S.W.2d 422, 423-24
(Tex. Crim. App. 1996).

¶ 54. The most persuasive opinion, in a case on point with
Hazelton, actually reaches the same result as the majority, but
demonstrates what elements are necessary for the result. In State v.
Stamper, 106 P.3d 172 (Or. Ct. App. 2005), the court found that the
elements of sexual abuse on a victim who did not consent were met by the
age of the victim. Id. at 173. In reaching this conclusion, it recognized
that requiring actual consent was "consistent with the ordinary meaning of
the relevant terms" of the statute and "consistent with other statutes that
suggest that the legislature understands that there is a difference between
an actual lack of consent and legal incapacity to consent for any of
several different reasons, one of which is the age of the victim." Id. at
177. Nevertheless, the court reached the opposite conclusion for two major
reasons. First, Oregon has a statute that provides "[a] person is
considered incapable of consenting to a sexual act if the person is . . .
[u]nder 18 years of age." Id. at 175, 179-80 (quoting Ore. Rev. Stat. §
163.315(1)(a) and stating that to avoid the statute the court would have to
"declare that [it] . . . simply does not mean what it says and cannot be
given the effect that it plainly describes"). Second, the majority relied
upon specific Oregon legislative history demonstrating that its
interpretation was the correct one. Id. at 178-79.

¶ 55. The elements determining legislative intent in Stamper are
exactly what the majority does not have here. Stripped of these elements,
the plain language of the statutes and every aid to statutory construction
is against the construction in Deyo and double jeopardy holding in
Hazelton.

¶ 56. Finally, I return to the central rationale of the
majority-that its result is compelled by the common law. I agree that
central to a resolution of this case is an understanding of how the current
sexual assault statutes relate to the common law from which they are
derived. I don't agree, however, that implicitly they have imported the
common law rule on which the majority relies.

¶ 57. We are in this case engaged in the construction of statutes,
and our paramount aim must be to determine the intent of the Legislature.
All of the statutory construction rules that the majority cites are aids to
determining legislative intent and must be viewed in this light. The
ultimate question is whether the Legislature intended to say that consent
was impossible for the victim in Deyo and that § 3252(a)(1)(A) and §
3252(a)(3) create the same crime when the victim is a minor.

¶ 58. Like all statutory construction aids, the rules on using the
common law reflect a balance between recognizing the common law where the
Legislature intended to continue it and recognizing that the Legislature
has the duty to define a different course from the common law where it
thinks it appropriate. Thus, the rules cited by the majority create
presumptions that can be overcome by evidence of what the Legislature
actually did and are tempered by rules that counsel against excessive
importation of the common law where there is no indication that the
Legislature intended it. Thus, we cannot "extend common-law principles to
extinguish express statutory language." Hitchcock Clinic, Inc. v. Mackie,
160 Vt. 610, 611, 648 A.2d 817, 819 (1993) (mem.). We can use the common
law to interpret undefined words in a statute, State v. Oliver, 151 Vt.
626, 627, 563 A.2d 1002, 1003 (1989), but not where the Legislature defines
the words it uses at variance with the common law. Most important for this
case, a statute changes the common law if it "attempts to cover the entire
subject matter." Langle, 146 Vt. at 516, 510 A.2d at 1303.

¶ 59. If ever there were a situation where the Legislature has
sought to cover the entire subject matter of an issue, it is here. At
least since the comprehensive reform of the sexual assault statutes in
1977, see 1977, No. 51, the Legislature has intended to cover the entire
subject of criminal sexual assault, including statutory rape. By a
definition of consent in § 3252(3) and an explanation of how lack of
consent can be proved in § 3254, the Legislature has demonstrated that it
specifically intended to comprehensively define consent and its relevance
in criminal sexual assault cases. Nothing in these statutes provides any
evidence that its precise statutory definitions of consent would be
supplemented by a common law rule.

¶ 60. This is not a situation where the Legislature has abandoned
the common law, and we must insist that it directly state so. Instead, the
Legislature embodied the principles of the common law into a comprehensive
definition of criminal liability for sexual assault. As I emphasized in
the fourth paragraph of this dissent, the majority does not propose to
enforce a common law rule; instead it is enforcing a rule it finds in
legislative wording. Thus, it is using the common law as a justification
for imposing a different statutory construction than that derived from the
plain meaning of the statutory sections, the specific definitions the
Legislature enacted, and the ordinary rules of statutory construction.

¶ 61. Finally on this point, even if the aids to statutory
construction suggested that direction, I would not hold, as the majority
has in Hazelton, that the Legislature intentionally voted to criminalize
the same conduct twice. This consequence of the majority's statutory
construction is strong evidence that the statutory construction is
inconsistent with legislative intent.

¶ 62. For these reasons, I disagree with the statutory construction
imposed by the majority. Thus, I vote as follows in the two cases before
us. In Deyo, the trial court charged that the sexual acts were
nonconsensual as a matter of law if the victim was under sixteen years of
age. Contrary to the majority holding, I conclude that this instruction
was error. Defendant failed, however, to object to the charge, and we can
reverse only for plain error. See State v. Percy, 158 Vt. 410, 418, 612
A.2d 1119, 1125 (1992). I agree that there is no plain error here because
the sexual acts could not be considered consensual between father and
daughter essentially for the reasons stated by the majority in Deyo. See
Deyo, 2006 VT 120, ¶ 20. The Legislature appears to have adopted this view
by defining as a sexual assault a parent's sexual act with his or her child
if the child is under eighteen years of age. 13 V.S.A. § 3252(a)(4).
(FN14) "Plain error exists only in exceptional circumstances where a
failure to recognize error would result in a miscarriage of justice, or
where there is glaring error so grave and serious that it strikes at the
very heart of the defendant's constitutional rights." State v. Oscarson,
2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (internal quotation marks and
citation omitted). The error here does not rise to that level. Thus, I
concur in the result in Deyo, but not in the reasoning the Court uses to
reach that result. I note, in fact, that the majority's construction of 13
V.S.A. § 3253(a)(9) is totally unnecessary given its holding that the child
could not consent to sexual acts with her father.

¶ 63. In Hazelton, the majority holds that defendant cannot be
convicted of both sexual assault under § 3252(a)(1)(A) and statutory rape
under § 3252(a)(3). I disagree. If the sexual act was nonconsensual in
fact, the age of the victim is irrelevant under § 3252(a)(1)(A). If the
victim is under sixteen years of age, defendant can also be convicted of
statutory rape, a separate offense. I dissent from the majority's holding
to the contrary.

¶ 64. I also note that even if I agreed with the majority in
Hazelton on the meaning of the word "consent" in § 3252(a)(1)(A), I would
still dissent from the holding. Although defendant did not acknowledge
this in his briefing, the trial court agreed with his position that the
offenses in § 3252(a)(1)(A) and § 3252(a)(3) are duplicative for the
reasons stated in the majority opinion. The difference, if any, was in the
remedy. After ruling in defendant's favor, the trial court held that the
duplicative nature of the charges only affected the total sentence that
could be imposed, such that the court could only impose two identical
concurrent sentences. This is an arguable position in light of our
language in State v. Grega, 168 Vt. 363, 388-89, 721 A.2d 445, 462-63
(1998), because this case does not involve lesser included offenses. After
winning on the substance of his argument, defendant failed to object to the
remedy the court adopted. Thus, defendant waived this issue.

¶ 65. We do not have to give guidance on this issue in light of the
remand. The State has not appealed the ruling favorable to defendant, and
it has become the law of the case, right or wrong.

¶ 66. Second, as I note above, even if Wheat holds what the
majority says it does, the prosecution in this case affirmatively took on
the responsibility to prove lack of consent in fact. Because the
prosecution took on that responsibility, the offense it chose to prove
under § 3252(a)(1)(A) is clearly different from the offense in § 3252(a)(3)
and there are not duplicative convictions for the same conduct-in fact, one
conviction is based on the victim's age and the second conviction is based
on the lack of actual consent to the sexual act.

¶ 67. The third reason is the most important. The majority's
construction of § 3252(a)(1)(A) not only misreads the element of "consent"
in the case of a young victim, it totally eliminates the word "compels,"
which is an element of the offense. The logic of the majority opinion is
that the word "compels" adds nothing to "without . . . consent," so it is
superfluous. Thus it holds that despite the fact that the statute applies
only to a defendant who "compels" the victim to engage in a sexual act
without consent, "no actual . . . compulsion is necessary to commit the
offense." Hazelton, 2006 VT 121, ¶ 26. This holding defies every rule of
statutory construction. It totally ignores the plain meaning of the
statutory language, either in isolation or in context. See State v.
Eldredge, 2006 VT 80, ¶ 7, 17 Vt.L.Wk. 247 (stating that if plain meaning
of language is clear, we must enforce it). We reject a construction that
renders part of the statutory language superfluous, exactly the result of
the majority's construction. In re Margaret Susan P., 169 Vt. 252, 263,
733 A.2d 38, 47 (1999).

¶ 68. In support of its construction, the majority argues that the
statute simply defines three different ways that the sexual act can be
compelled, State v. Nash, 144 Vt. 427, 433, 479 A.2d 757, 760 (1984), and
therefore compulsion is not an element of the offense. That argument makes
sense only if the methods are examples of compulsion, and, as noted above,
that is a strong argument why the majority's construction of "without
consent" is wrong. If I have to accept that construction, however, it has
a corollary: the fact that the age of the victim cannot remotely be seen as
an example of compulsion undercuts the majority's holding that compulsion
is not a separate element of the offense. I would hold that each offense
has a separate element and conviction of both is permissible.

__________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. While this case has been under consideration in this Court, the
Legislature has substantially amended and renumbered the statutes governing
sexual assault. See 2005, No. 192 (Adj. Sess.), § 10. Those amendments
were intended to decrease the incidence of sex crimes in Vermont by
"enhancing sentencing and expanding treatment of sexually violent
offenders" and "restructuring . . . sentencing for the most serious crimes
of sexual violence." Id. § 3. The Legislature increased the penalties for
lewd and lascivious conduct with children, for all forms of simple sexual
assault, and for aggravated sexual assault. Id. §§ 8-10 (amending 13
V.S.A. §§ 2602, 3252, and 3253, and creating a new section, 3271, mandating
indeterminate life sentences for serious sexual offenses). Under the new
statutory scheme, the maximum penalty for a single sexual act with the
actor's child under age 16 is life imprisonment, rather than 35 years. Id.
§10. References to the V.S.A. in this opinion are to the statutes as they
were prior to the May 2006 amendments, which do not apply retroactively to
increase the penalties for defendant's conduct. 1 V.S.A. § 214(b)(4);
State v. Willis, 145 Vt. 459, 467, 494 A.2d 108, 112 (1985).

FN2. We note that our statutes do differentiate, in one provision, between
consensual and nonconsensual intercourse with a minor under age sixteen.
13 V.S.A. § 3252(a)(3) (criminalizing sexual acts where "[t]he other person
is under the age of 16, except where the persons are married to each other
and the sexual act is consensual"). Section 3252(a)(3), read in
conjunction with the provisions governing marriage by persons under age
sixteen, does not support the concurrence's position strongly, if at all,
however. For a minor under age sixteen to marry, the minor must have not
only the consent of his or her parents but also a judicial certificate
stating "that the public good requires such license to be issued." 18
V.S.A. § 5142(2). This provision suggests that minors under age sixteen
are unable to legally consent even to the marriage underlying their
"consent" to later sexual activity. This conclusion is buttressed by 15
V.S.A. §§ 512 & 513, which provide that marriages entered into when one of
the parties to the marriage is under sixteen are voidable, either by that
party themselves or by their parent or guardian. "Thus, at the point when
a married minor engages in sex with his or her spouse, the state has
already taken steps to protect the minor." Barlow, 160 Vt. at 529, 630 A.2d
at 1300.

FN3. Under § 261.5, sexual contact with a minor is a misdemeanor if the
parties to the contact are within three years in age. Cal. Penal Code §
261.5(b). If the parties are more than three years apart, the offense is a
"wobbler," either a felony or misdemeanor, subject to a maximum term of one
year in a county jail, id. § 261.5(c). If one party is over twenty-one and
the other is under sixteen, the offense is also a wobbler, but exposes
perpetrators to a maximum sentence of four years in state prison. Id. §
261.5(d). Parallel provisions institute a graduated system of civil
penalties tracking the same hierarchy. Id. § 261.5(e)(1)(A)-(D).

FN4. The May 2006 amendments do add, at 13 V.S.A. § 3252(c)(2), an exception
where "the [actor] is less than 19 years old, the child is at least 15
years old, and the sexual act is consensual." The concurrence is concerned
that our reading of the former statute would lead to future
"disproportionate" punishment of actors for consensual sexual activity with
minors near their own age. Post ¶ 33. The new § 3252(c)(2) obviates
that concern by decriminalizing a narrow class of such activity.

FN5. he concurrence also cites cases from Kansas, Pennsylvania, Texas, and
Oregon in support of its interpretation of our statutes. Post ¶ 53-54.
These cases, like Hillhouse, all arise from statutory schemes different
from that implicated in the case before us, and should therefore be used
only cautiously, if at all, as we interpret our unique statutory scheme.
Cf. Proulx v. Parrow, 115 Vt. 232, 236-37, 56 A.2d 623, 626 (1948) ("In the
absence of any decision of our own upon this point the construction placed
upon the same or equivalent words in similar statutes of other jurisdiction
will serve to shed light upon the problem."). Here, as distinct from
Proulx, we have decisions interpreting the very words we are called on to
construe in this case. Resort to cases from other states, whose statutes
are not similar to our own, is not necessary here.

FN6. The rule the majority constantly cites in Deyo-that a minor can't
"consent to sexual relations with an adult"-has never been the common law.
Putting aside whether the ability of a minor to "consent" is a statement of
the common law or a rationale for the crime of statutory rape, a subject
covered in detail infra in this dissent, the age element of statutory rape
has never been set by the common law as that under the age of majority, and
the age of the perpetrator did not matter under the common law. This
misstatement of the common law is an example of how the majority keeps
falling into "folk law" as its justification. See infra ¶ 41.

FN7. Again, I think it important to emphasize that this has never been the
common law.

FN8. The majority attempts to explain the marital exception by noting that
third parties must give consent to marry. Deyo, 2006 VT 120, ¶ 21 n.2.
The explanation is beside the point. I rely on the marital exception only
because it shows that when the Legislature uses the term "consent" and its
derivatives, it means consent in fact without importing a common law rule
on the ability of persons under a certain age to consent.

FN9. The majority in Hazelton points out that this language was in the
statute derived from England as part of the common law so it must, by
definition, be consistent with the common law principle. I cite it only
because it shows that when the Legislature uses the term "consent" and its
derivatives, it means consent in fact and that is the usage we must apply
to the statutes before us. The fact that the language came from the
English statute is irrelevant.

FN10. Again, the majority's attempt to explain the marital exception, Deyo,
2006 VT 120, ¶ 21 n.2, doesn't explain it. Nevertheless, I stand by my
point that the explanation is irrelevant.

FN11. he majority argues that Hillhouse is inapposite because the California
statutory scheme is different. Deyo, 2006 VT 120, ¶ 21. All statutory
schemes are different, but the difference between Vermont and California
does not undercut the comparison. The point of Hillhouse is that general
statements about a minor's capacity to consent to a sexual act are only
marginally helpful in interpreting a statute that does not refer at all to
a minor's capacity to consent. That point is precisely the critical one
here. On that point, the legislative direction in California is no clearer
than that in Vermont with its explicit definition of "consent."

FN12. The Deyo and Hazelton opinions are inconsistent in their criticism of
this point. In Deyo the criticism is that § 3254(2) "simply" describes
some instances where the "actor is deemed to have acted without consent."
Deyo, 2006 VT 120, ¶ 24. In Hazelton, the criticism is that this dissent
has recreated a mistake defense although we have clearly held that no such
defense is available in State v. Searles, 159 Vt. 525, 527, 621 A.2d 1281,
1282-83 (1993). See Hazelton, 2006 VT 121, ¶ 30. Deyo is right that §
3254(2) describes instances where the defendant has acted without consent;
nothing in this dissent or the statute suggests that it creates or
amplifies defenses as charged in Hazelton. The charge that the dissent's
construction of the statute appears "to extend the defense of consent to
repeated sexual acts between an incestuous parent and an underage child,"
Hazelton, 2006 VT 121, ¶ 30, sounds more like a charge in a political
campaign than anything that could be remotely derived from the language of
the dissent. My point is that in describing an instance where lack of
consent is deemed to be present as a matter of law, the instance before us
in these cases, the Legislature has used language that means that consent
must be viewed as consent in fact. Hazelton offers no other interpretation
of the statutory language; indeed, no interpretation at all.

FN13. The majority in Deyo analyzes Tobias at length to show that it is
inapposite because it is based on a clear change of legislative direction
adopted in 1970 in California. 2006 VT 120, ¶ 22. In fact, Vermont went
through a comparable change of direction in 1977 when it repealed its rape
statutes and adopted the current sexual assault statutes. 1977, No. 51.
Vermont also went through a recent substantial modification of its
statutory scheme when it decoupled its sentencing provisions for statutory
rape from those for sexual assault generally. Again, I emphasize that use
of cases construing statutes from other jurisdictions must be done
carefully, but add that the similarities between the Vermont and California
schemes outweigh the differences.

FN14. Under the recent amendment, this provision is now § 3252(d).