E. L. L. v. StateE. L. L. v. State
- Reporters:
- ,
- Before:
- Burke
Lead Opinion
OPINION
BURKE, Justice.This matter comes to us on petition for review.1 The subject of the petition is an adjudication of contempt following defiance of an order of the superior court requiring petitioner, a minor child, to testify before a grand jury concerning alleged acts of sexual intercourse with a male teacher.
On March 9, 1977, a criminal complaint was filed charging the teacher in question with two counts of “statutory rape.”2 The charges were based on alleged acts of sexual intercourse between the accused and petitioner. At the preliminary hearing, and later before a state grand jury, petitioner refused to answer any questions concerning such conduct. On application of the district attorney, the superior court ordered that she do so. After being informed of petitioner’s refusal to answer the questions addressed to her, in violation of its order, the court found her guilty of contempt and ordered her placed in detention until such time as she might purge herself of the contempt by answering the questions.3 The proceedings giving rise to this petition followed.
Petitioner’s first contention is that the court’s order violates her constitutional right against self-incrimination.4 Petitioner argues:
[Tjhere are several violations of law that could be alleged which would lead to her punishment. These includeAS 11.40.080 and Fairbanks General Code [of municipal ordinances] 6.401. Violations ofAS 47.10.010(a)(1) , (3) and (6) could also be alleged which would subject E.L.L. to possible adjudications leading to state custody and potential placement away from her family in various settings (institutions, group homes or foster homes) for the balance of her minority. Such drastic possibilities should be sufficient to allow a minor to exercise a privilege against self-incrimination.5
The privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. McConkey v. State, 504 P.2d 823, 825-26 (Alaska 1972). But, a witness may not refuse to testify where there is no real or substantial hazard of incrimination; the witness is not excused from answering merely because he declares that in so doing he would incriminate himself. Id. Moreover, we view the privilege as applicable only where incarceration or other sanctions that are criminal in nature are a potential hazard. Under the provisions of law cited by petitioner there is no such hazard.
The only instance under our children’s laws authorizing institutionalization or incarceration is when the child has violated the laws of the state, or any of its political subdivisions, and in turn has been adjudged a delinquent minor.
For that reason, petitioner’s reliance on
On the other hand, when a person under the age of eighteen years, such as petitioner, “violates a law of the state, or an ordinance or regulation of a political subdivision of the state,” he can be adjudged a “delinquent minor.”
Certain forms of sexual conduct or the exposure of one’s person or private parts are made criminal by
However, those provisions, as we construe them, have no application to any of the alleged activities of the individuals in this case. One act of intercourse occurred, if at all, in the teacher’s home. The other is alleged to have occurred in a storage room at the school where the teacher is employed. There is no contention that anyone was present, on either occasion, except petitioner and the accused.
Petitioner next contends that the- superi- or court erred in committing her to custody for contempt. Citing our opinions in L.A.M. v. State, 547 P.2d 827 (Alaska 1976), and Johansen v. State, 491 P.2d 759 (Alaska 1971), she argues that her conduct, at least in part, amounted to a criminal contempt, giving her the right to a trial by jury. Again, we find petitioner’s argument unpersuasive.
Nothing in L.A.M. or Johansen suggests that the superior court erred in this case. To the contrary, those decisions support the action that was taken against petitioner. It is clear that the superior court’s dominant -purpose in remanding petitioner to custody was to force compliance with its order that she testify before the grand jury. It is equally clear that petitioner has the ability to comply, but simply chooses not to do so. Her imprisonment is conditioned solely on her continued refusal to testify, in defiance of that order. Thus, she indeed carries the key to her freedom in her own pocket. Until such time as she agrees to testify or the grand jury is discharged,9 petitioner may properly be confined for her refusal to comply with the superior court’s order.10
The order of the superior court is affirmed. We find it unnecessary to discuss the other issues raised by the petition.
Notes
. .See Rules 23 and 24, Alaska R. App. P.
.
A person who ... (2) being 16 years of age or older, carnally knows and abuses a person under 16 years of age, is guilty of rape.
An act of intercourse with a female person under 16 years of age, with or without her actual consent, is rape, since in the eyes of the law she is incapable of consent. Torres v. State, 521 P.2d 386 (Alaska 1974). This offense is commonly known as “statutory rape.” R. Perkins, Criminal Law 152-54 (2d ed. 1969).
. Disobedience of a lawful order of the court is a contempt of the authority of the court.
When the contempt consists of the omission or refusal to perform an act which is yet in the power of the defendant to perform, he may be imprisoned until he has performed it.
. The privilege against self-incrimination is embodied in the Fifth Amendment to the Constitution of the United States and in Art. I, sec. 9 of the Constitution of Alaska.
. Petition for Review at 5.
. The Department of Health and Social Services may petition the court for continued supervision for an additional one-year period if the minor has not responded to treatment.
.
A person who wilfully and lewdly exposes his person or the private parts of his person in a public place, or in a place where there are present other persons to be offended or annoyed, or who takes part in a model artist exhibition, or makes other exhibition of him* self to public view, or to the view of a number of persons, which is offensive to decency, or which is adapted to excite vicious or lewd thoughts or acts, upon conviction, is punishable by imprisonment in a jail for not less than three months nor more than one year, or by a fine of not less than $50 nor more than $500. (emphasis added).
.Section 6.401 of the Fairbanks General Code provides:
A person over the age of twelve years commits the offense of public indecency if:
(a) He intentionally exposes his genitals, pubic hair region, or anal region to public view;
(b) While in a public place, he engages in any conduct consisting of contact between the sex organs of two or more persons or between the sex organs of one person and the mouth or anus of another; or
(c) He urinates or defecates on any portion of a public place not existing for the purpose of receiving urine or feces.
Section 6.101(h) of the General Code defines “public place” as follows:
A ‘public place’ is a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designated for actual residence, public ways and retail business establishments.
. Coercive confinement of a recalcitrant grand jury witness must end when the grand jury is discharged since after that point the witness has no further opportunity to purge himself of contempt. Farr v. Pitchess, 409 U.S. 1243, 1244, 93 S.Ct. 593, 34 L.Ed.2d 655, 657 (1973) (Douglas, Circuit Justice); Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622, 627 (1966). Similarly, imprisonment cannot be used to coerce evidence after a trial has terminated. Yates v. United States, 355 U.S. 66, 72, 78 S.Ct. 128, 132, 2 L.Ed.2d 95, 101 (1957).
. It has come to our attention that despite E.L.L.’s refusal to testify, the grand jury returned an indictment against the teacher, apparently based on other evidence. Thus, this matter may be technically moot. Nevertheless, in view of the importance of the issues involved, we have chosen to address those issues.
Dissenting Opinion
dissenting.
The privilege against self-incrimination arises not only in the face of criminal penalties. It protects against threats to personal liberty without regard to nice distinctions between forms of action:
And our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty — a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind’s battle for freedom.
Re Gault, 387 U.S. 1, 50, 87 S.Ct. 1428, 1456, 18 L.Ed.2d 527, 558-559 (1967) (footnote’ omitted). Under Alaska’s Juvenile Code, E.L.L.’s testimony may well supply the foundation for an adjudication that she is a dependent minor.1 If she is found to be dependent, she faces the possibility of removal from her family home and commitment to the Department of Health and Social Services until her 20th birthday.2 While such commitment may not include incarceration, as in the case of an adjudication of delinquency, it may include placement in a group foster home under state supervision. This would involve an obvious and significant encroachment on her personal liberty.
Further, E.L.L. has a right to live with her family without state intrusion. That right is a constitutionally guaranteed liberty under the Fourteenth Amendment to the United States Constitution. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Supreme Court of the United States held that the guarantee of liberty of the Fourteenth Amendment “[wjithout doubt . . . denotes . the right of the individual ... to marry, establish a home and bring up children . . . 262 U.S. at 399, 43 S.Ct. at 626, 67 L.Ed. at 1045. In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Supreme Court, in reference to Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), stated:
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . And it is in recognition of this that, these decisions [Meyer and Pierce ] have respected the private realm of family life which the state cannot enter.
321 U.S. at 166, 64 S.Ct. at 442, 88 L.Ed. at 652 (citation omitted). In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Supreme Court struck down an Illinois statute which deprived an unmarried father of custody of his children upon the death of their mother. The court held that the right to the integrity of the family unit was protected by the Fourteenth Amendment due process and equal protection clauses, as well as by the Ninth Amendment. In Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976), a three judge court held, in light of these authorities, that the child, as well as the parent, has a constitutional right to family integrity.
In my opinion, the consequences of an adjudication, of dependency involve state intrusions into a child’s liberty as significant as most criminal sanctions. Threatened with both state wardship and deprivation of her right to family integrity, E.L.L. may not constitutionally be compelled to be a witness against herself.
.
.