Nicholas FLINK, Appellant, v. STATE of Alaska, Appellee.
Nos. 6962, 7060
Court of Appeals of Alaska
May 11, 1984
683 P.2d 725
Dent filed his amended complaint on March 10, 1982, which added the bank as a party, due to the bank‘s acquisition of the deed of trust after the original complaint had been filed. The propriety of the addition of the bank as a party is controlled by
In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to which the interest is transferred to be substituted in the action or joined with the original party.
The trial court‘s action was, therefore, proper. AFFIRMED.
MATTHEWS, J., not participating.
David Mannheimer, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
OPINION
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
PER CURIAM.
Nicholas Flink was convicted of various sexual offenses involving children, including one count of first-degree sexual assault. He appeals challenging the constitutionality of former
gree sexual assault is affirmed. The judgment of the superior court is REVERSED in part, AFFIRMED in part, and this case is REMANDED for further proceedings.
SINGLETON, Judge, concurring and dissenting.
FACTS
During the spring of 1981, Flink befriended a group of boys living near him. The boys included thirteen-year-old A.T., nine-year-old M.H., eleven-year-old W.G., and nine-year-old C.A. The boys would visit Flink frequently to play with his farm animals and to play pinball and foosball. Alcohol and drugs were apparently readily available to the boys at Flink‘s house. Flink, a homosexual, admitted talking to the boys about many subjects, including sex.
The charges in the indictment arose from a series of events occurring in May and June of 1981. The state alleged that on three occasions Flink touched one or more of the boys’ genitals. Flink conceded one instance of “sexual contact“, but denied the boys’ other charges. In addition, Flink was accused of, and admitted, performing fellatio on C.A.
The indictment charged six separate counts of sexual involvement with minors. A discussion of the individual charges and the evidence presented at trial follows.
COUNT I
Count I chargеd Flink with sexual abuse of A.T. in May of 1981. A.T. was twelve years old at the time. He turned thirteen on June 2, 1981. The state‘s theory of the case was that while A.T. was visiting Flink‘s house, Flink provided rum and A.T. became intoxicated. As A.T. lay on a couch, Flink started to rub his back. Flink eventually reached for A.T.‘s penis. When A.T. told Flink to stop, Flink complied.
Flink‘s account of the incident differed from A.T.‘s. Flink testified that A.T. was drinking but not drunk, and that he gave A.T. a back massage in response to the boy‘s complaint about a backache. He specifically denied touching A.T.‘s penis or testicles.
The jury acquitted Flink of sexual abuse but convicted him of the lesser-included offense of attempt, apparently concluding that Flink reached for A.T.‘s genitals but failed to touch them.
COUNTS II AND III
In Count II Flink was accused of sexually abusing M.H. on June 3, 1981. In count III he was charged with contributing to the delinquency of A.T. during the same incident. The reason for the different charges was that M.H. was nine years old at the time while A.T. had turned thirteen.
The state‘s theory of the case was that A.T. and M.H. went to visit Flink who offered to give A.T. a birthday present in the form of a “blow job“. A.T. refused but Flink persisted. When verbal encouragement failed, Flink pinned A.T. to the floor and started to remove A.T.‘s pants, putting his face against A.T.‘s crotch. A.T. called for M.H.‘s help and a struggle ensued. The statе originally alleged that Flink grabbed M.H.‘s crotch during the struggle, but M.H. testified that Flink grabbed only his leg. Both boys finally worked loose of Flink‘s grasp and ran for the door.
Flink‘s testimony presented a different sequence of events. He testified that M.H. and A.T. came to visit him on June 3 and that A.T. initiated a discussion about sex. During this conversation, A.T. became playful and began to sexually tease Flink. Flink testified that this resulted in a friend-
The jury acquitted Flink of count II involving M.H. and convicted him of count III involving A.T.
COUNTS IV, V AND VI
Counts IV, V and VI involved incidents which occurred on June 17, 1981. In counts IV and V the state alleged that Flink sexually abused W.G. and C.A. Count VI charged Flink with engaging in sexual penetration with C.A.
W.G. and C.A. testified that they were visiting Flink‘s house when Flink offered to give them “head“. He sent them into a utility closet with a coin, while he blindfolded himself. The boys were to flip the coin to determine who would come out first to receive fellatio, while Flink would remain ignorant of which boy was involved.
When the boys got into the closet, however, they decided they wanted to leave the house rather than go through with this sexual experience. They emerged, and W.G. told Flink that they did not want to continue. Flink grabbed W.G. by his crotch; C.A. then pulled on Flink‘s back to get him off of W.G. Flink then grabbеd C.A. and started to remove C.A.‘s pants. W.G. came to the aid of his friend, yanking on Flink‘s hair. C.A. got away, pulled up his pants, and the two boys fled.
Again, Flink‘s version of the events which occurred on June 17 was substantially different. Flink testified that W.G. and C.A. had asked him several times that day to perform fellatio on them. He further testified that when he refused the boys became insistent, indicating to him that they had erections; he stated that both boys pulled their pants back to demonstrate that they had erections. Flink admitted: “I did reach up and I touched them both and I perceived that they had [erections].” Flink testified that the boys then left.
Count VI involved an incident later that day when C.A. went back to Flink‘s house and asked him if he really would give him a “blow job“. In a pretrial statement to the police, Flink admitted that he had in fact committed fellatio on C.A. A recording of Flink‘s statement was played for the jury.
Based upon all of this evidence, the jury found Flink guilty on counts IV, V and VI.
I. MENS REA
Flink argues that former
In order to address Flink‘s arguments we must ascertain what conduct the legislature sought to sanction by determining the legislature‘s intent in enacting the statute. We have previously recognized that the Alaska Revised Criminal Code is based upon a tentative draft derived from a number of state enactments which in turn were derived from the New York Revised Penal Code of 1965 and the American Law Institute‘s Model Penal Code. See Neitzel v. State, 655 P.2d 325, 327 (Alaska App.1982). Flink notes that Model Penal Code section 213.4 defines sexual contact as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.” (Emphasis added.) The commentary to that section provides in relevant part:
Section 213.4 applies to one who engages in sexual contact with a person not his spouse under a variety of enumerated circumstances. “Sexual contact” is defined to include “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.” The phrase describing the requisite specific intent is based on similar language in a number of laws proscribing indecent liberties with children, and the idea is probably implicit in those statutes that are silent on the subject. The requirement of a particular purpose to arouse or gratify sexual desire distinguishes sexual imposition from ordinary assault and from noncriminal touching.
1 A.L.I., Model Penal Code and Commentaries Part II § 213.4, at 400 (1980) (footnote omitted). Flink notes that most state provisions that are based upon the Model Penal Code define sexual contact to include this specific intent. See, e.g.,
Flink also relies upon State v. Berry, 419 P.2d 337 (Ariz.1966). In Berry, the Arizona court avoided a constitutional challenge to Arizona Revised Statute section 13-653, which prohibits child molestation without regard to the actor‘s motives or intent, by construing the statute to require that the acts be performed with sexual motivation. Id. at 339-40. Flink suggests that we follow Berry and read a sexual motive or intent into the statutory definition of sexual contact.
The state vigorously opposes any interpretation of the statute which would require a specific sexual motive or intent as an element of sexual abuse. Recognizing that the Model Penal Code and most of the state enactments derived from it specifically require such a motive or intent, the state reasons that omission of this language from our statute implies a legislative intent to make all sexual offenses in Alaska general intent crimes. See Neitzel v. State, 655 P.2d at 327 (legislative omissions are sometimes as instructive as what the legislature includes in a statute).
The state notes that the subcommission that prepared the tentative draft indicated that the Alaska sexual assault and sexual abuse provisions were based primarily on Michigan statutes. See
With respect to sexual conduct with children, the primary distinction between the Model Penal Code and New York provisions on the one hand, and the Michigan and Arizona codes, on the other, is that the former expressly require a specific intent and the latter do not. The state argues that, because the definition of sexual contact in the Alaska Revised Code is derived from the Michigan and Arizona provisions, the legislature intended to require only
In order to evaluate the state‘s argument, we must undertake a review of the history of the relevant Michigan and Arizona statutes. The Michigan statutes were derived from a proposed code that was based upon the New York Penal Code of 1965. See Comment, Sex Offenses and Penal Code Revision In Michigan, 14 Wayne L.Rev. 934, 968 (1968). The proposed Michigan Revised Code ran into substantial opposition. When it became clear that it would not be adopted, the Michigan Women‘s Task Force on Rape lobbied for reform in the law of sexual offenses. Their efforts culminated in the drafting of the Criminal Sexual Conduct Act, to which the commission on our criminal code apparently referred in the tentative draft. See Note, Criminal Law—Sеxual Offenses—A Critical Analysis of Michigan‘s Sexual Conduct Act, 23 Wayne L.Rev. 203, 208-09 (1976).
It is important to recognize that while the Michigan sexual offense statutes were based on the Revised New York Penal Code and the Model Penal Code, and that they share terminology, the Michigan code differs from the parent codes in a number of respects. The intent underlying these changes was generally to ease the prosecutor‘s burden in obtaining convictions in sexual offense prosecutions. In order to obtain this prosecutorial advantage, the Michigan code dispenses with specific intent in a number of situations where the parent codes require it.4
In Michigan “sexual contact” is defined as “the intentional touching of the victim‘s or actor‘s intimate parts or the intentional touching of the clothing covering the immediate area of the victim‘s or actor‘s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.”
Arizona has two statutes which prohibit sexual contact with children, short of sexual penetration. Arizona Revised Statute section 13-1404 (1983 Supp.), which is equivalent to former
A person who knowingly molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child or who causes a child under the age of fifteen years to fondle, play with, or touch the private parts of such person is guilty of a felony.
The Arizona statutes define “sexual contact” as “any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.”
§ 13-1407. Defenses.
A. It is a defense to a prosecution pursuant to §§ 13-1404 and 13-1405, involving a minor, if the act was done in furtherance of lawful medical practice.
Section 13-1407 was amended in 1983 to provide:
E. It is a defense to prosecution pursuant to § 13-1410 that the defendant was not motivated by a sexual interest.
In State v. Madsen, 137 Ariz. 16, 667 P.2d 1342, 1344 (Ariz.App.1983), the court relied on State v. Berry, 419 P.2d at 337, which interpreted prior law, for the proposition that section 13-1410 requires that the forbidden acts be “motivated by an unnatural or abnormal sexual interest with respect to children.” However, in Madsen, the court held that whether the defendant‘s intent is abnormal or unnatural “must be judged by a community standard rather than his personal beliefs.” 667 P.2d at 1344. Thus, the Arizona statutes appear to require general intent only, providing statutory defenses for innocent conduct.
The state additionally relies on recommendations by the American Bar Association‘s National Legal Resource Center for Child Advocacy and Protection in Recommendations for Improving Legal Intervention in IntraFamily Child Sexual Abuse Cases (1982). Specifically, it relies upon recommendation 1.6 and its accompanying commentary. The recommendation provides in relevant part:
The following acts should cоnstitute sexual abuse of a child:
....
(4) the intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of either the child or the perpetrator, EXCEPT that, it shall not include:
(a) acts which may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child; or
(b) acts intended for a valid medical purpose....
Id. at 13-14. The commentary states in part:
It also was decided that for acts involving sexual touching [Section (4)], the intent or purpose of the touching would not be included. One reason for this choice is that the motivation for committing sex offenses varies widely and may encompass some purpose which would not be stated. Further, it was felt that a more logical method was to include language as to what contact should be exempted from inclusion in the definition. The reasoning is that prosecutors should not have to prove as an element of the crime the perpetrator‘s intent or purpose when he sexually touches a child. Thus, language often used in statutes such as “for the purpose of sexual arousal or gratification,” or other similar purpose is not included as an essential element of the crime.
Some reform statutes have dealt with the above problem by stating that the touching must be intentional, and “for the purpose of sexual arousal or gratification.” In addition, some statutes use language that the touching must be “reasonably construed as being for the purpose of sexual arousal or gratification.” One court‘s interpretation of the latter terminology is that it be “read as a substantial lessening of the prosecutor‘s burden of proof; the touching must be intentional but the actor‘s purpose need
not be proven to the jury. On the contrary, the jury may find that the actor‘s actual purpose was other than sexual gratification, e.g., anger, revenge, but still find that sexual contact had taken place.” Indeed, one court stated that such language is included in the statute “in order to exclude from its coverage affectionate caresses of a child.” Since this appears to be the legislative intent in using “for the purpose of” language, it was felt that a better approach is to specifically state the exclusion, and place the burden on the defendants to prove that the acts did not have a sexual purpose.
Id. at 15-16 (footnotes omitted).
The state argues that our statutes could be interpreted in a manner consistent with these recommendations and the statutes adopted in Michigan and Arizona. Under this interpretation sexual contact with children would be a general intent crime; prosecution for innocent conduct would be prevented by allowing the defendant a defense if the evidence raised a reasonable doubt that his conduct was harmless. See
The state reasons that all lawful parental actions resulting in “sexual contact“, to the extent they technically fall within the prohibited conduct described in former
ute section 13-1407, and accordingly serves the purposes outlined in the Legal Resource Center‘s recommendation.
We have сarefully reviewed the legislative history accompanying the enactment of former
While the parties have made plausible arguments, we find substantial problems with those arguments. On the one hand, while most of the statutes derived from the Model Penal Code include in their definition of sexual contact a sexual motivation, our statute does not. On the other hand, the Michigan and Arizona statutes, upon which the state contends the code revisers relied, are equally distinct from the statutes ultimately adopted by our legislature. Michigan includes language in its definition of “sexual contact” clearly suggesting general intent. This language was not carried over into the Alaska statute. Arizona adopted specific defenses to charges of sexual abuse which are likewise аbsent from the Alaska statutes. While an extensive commentary accompanied both the tentative draft and the Revised Code, indicating the reviser‘s familiarity with code revisions in other states, nothing in the commentary to the sexual offense statutes addresses the question of mens rea which must accompany sexual contact. “[A]mbiguities in penal statutes must be narrowly read and construed strictly against the government.” State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App.1983), citing 3 C. Sands, Sutherland on Statutory Construction § 59.03 at 6-8 (4th ed. 1974).7
When we construe the phrase “sexual contact” strictly in favor of the defendant, we note that sexual abuse requires sexual contact. While any intentional touching of a person‘s genitalia in-
volves “contact“, certain results are required to render that contact “sexual“. The adjective “sexual“, which is not specifically defined in the code, is defined in general usage as: “1. of sex or the sexes or the relationship or feelings etc. between them. 2. (of reproduction) occurring by fusion of male and female cells.” Oxford American Dictionary 622 (1980). See
II. HARMLESS ERROR
I dissent from the reversal of Flink‘s convictions for sexual abuse and contributing to the delinquency of a minor. I find any error in failing to properly instruct the jury to be harmless.
The following instruction is representative of those given in this case describing the offense of sexual abuse of a minor:
In order to establish the crime of sexual abuse of a minor, as charged in Count II of the indictment, it is necessary for the state to prove beyond a reasonable doubt the following:
First, that the event in question occurred at or near Wasilla, Alaska, and on or about June 3, 1981;
Second, that Nicholas A. Flink, III, was sixteen years of age or older;
Third, that the defendant engaged in sexual contact with M.H. by intentionally touching M.H.‘s penis; and
Fourth, that M.H. was under thirteen years of age.
Sexual contact was defined in the instructions, as it is in the criminal code, as the “intentional touching, directly or through clothing, by the defendant of the victim‘s genitals, anus, or female breasts.” Flink objected to this instruction and proposed to change the third element as follows:
Third, that the defendant engaged in sexual contact with M.H. for the purpose of sexual gratification or arousal by intentionally touching M.H.‘s penis for the purpose of sexual gratification or arousal.
The jury was given similar instructions defining the offense of contributing to the delinquency of a minor to which Flink interposed similar objections regarding the definition of sexual contact. The court, in effect, instructed the jury that sexual abuse of a minor and contributing to the delinquency of a minor were general intent crimes; Flink unsuccessfully requested that the court instruct that they were specific intent crimes. While we have held that the jury should have been instructed that sexual abuse of a minor and contributing to the delinquency of a minor were specific intent crimes to the extent that they required “sexual contact“, it does not necessarily follow that Flink‘s conviction must be reversed.
“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
I am satisfied that although the instructions in this case reduced the state‘s burden to prove intent, reversal is not required. In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the Supreme Court reviewed a decision by the Connecticut Supreme Court refusing to analyze for harmlessness an error establishing a conclusive presumption of intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The court split three ways. Justice Stevens concluded that federal law did not require a state appellate court to make a harmless error determination. 460 U.S. at —, 103 S.Ct. at 978, 74 L.Ed.2d at 835. He consequently joined in a decision to affirm. Four justices joined in a dissenting opinion voting to reverse the Connecticut court and hold that the error in that case was harmless beyond a reasonable doubt. 460 U.S. at —, 103 S.Ct. at 979, 74 L.Ed.2d at 836. A four-justice plurality joined in an opinion by Justice Blackmun which would have adopted a rule of near automatic reversal for a Sandstrom error. However, Justice Blackmun recognized:
There may be rare situations in which the reviewing court can be confident that a Sandstrom error did not play any role in the jury‘s verdict .... [A] Sandstrom error may be harmless if the defendant conceded the issue of intent. In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some case admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless. We leave it to
the lower courts to determine whether by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury.
460 U.S. at —, 103 S.Ct. at 977-78, 74 L.Ed.2d at 834 (citations and footnote omitted).
I am satisfied that the situation contemplated by Justice Blackmun was present in this case. Flink concedes that his conviction of sexual assault in the first degree, Count VI of the indictment, must stand. Count II need not concern us for Flink was acquitted. Thus, Count I, alleging sexual abuse of A.T., Count III alleging sexual contact with A.T., Count IV alleging sexual abuse of W.G., and Count V alleging sexual abuse of C.A., must be considered.
Flink concedes that the minors’ testimony, if believed, would have established that Flink engaged in sexual contact with the minors for his own sexual gratification or theirs. Flink argues, however, that his testimony would have permitted the jury to infer that he had intentionally touched the childrens’ genital areas, but without a sexual motive. I disagree. Flink‘s defense to Count I and Count III was that he had not touched the genital areas of the children involved but rather had engaged in roughhouse wrestling with them. If the jury believed Flink, he did not touch the children‘s genitals at all and could not have been convicted under the court‘s instructions. Assuming that the jury considered part of Flink‘s testimony and part of the children‘s, and came to the conclusion that Flink had inadvertently touched the children‘s genitals while wrestling with them, he still could not have been convicted under the instruction requiring an “intentional” touching. An accidental or inadvertent touching would not establish general criminal intent and satisfy the instruction. I would therefore affirm Flink‘s convictions on Count I and Count III of the indictment.9
Counts IV and V present a more difficult question. Essentially, Flink testified that eleven-year-old W.G. and nine-year-old C.A. approached him unsolicited and requested that he perform fellatio on them. Construing the record most favorably to Flink, he refused, responding that they were not old enough to have erections. They then demonstrated to him that they were capable of erections and Flink grasped their penises to satisfy his curiosity and because they asked him to. Taking into account that there is no evidence of diminished capacity in this case and that Flink admitted shortly after this encounter that he committed fellatio on nine-year-old C.A., I find that Flink, in fact, admitted sexual motivation for his acts and that failure to instruct the jury on specific intent was harmless beyond a reasonable doubt. I would therefore affirm Flink‘s convictions on Counts IV and V of the indictment.
III. SENTENCE
Flink was sentenced as a first-felony offender. He received six months for attempted sexual abuse of a minor, six months for contributing to the delinquency of a minor, two and one-half years for each of the two convictions for sexual abuse of a minor, and ten years for the first-degree sexual assault conviction. Judge Carlson ordered the sentences to be served consecutively for a total sentence of sixteen years’ imprisonment.
Flink argues that the ten-year sentence for first-degree sexual assault was excessive under the circumstances. We disagree. When Flink committed his offenses, first-degree sexual assault was a class A felony, former
Thus, in order for Flink to receive a term greater than six years for first-degree sexual assault, there must be sufficiently verified facts in the record to indicate that his crime was more serious than one in which a firearm was used or in which the victim sustained serious physical injury. Langton v. State, 662 P.2d 954, 961 (Alaska App.1983). An enhanced sentence would be justified either by finding aggravating factors set out under
BRYNER, Chief Judge, concurring and dissenting.
I agree with the majority of the court that the superior court failed to instruct Flink‘s jury properly concerning the essential elements of sexual abuse of a minor. I also agree that the statutes governing this offense must be interpreted to require proof of a criminal intent. However, I cannot agree that the offense of sexual abuse of a minor requires proof of specific intent. Nor do I believe that the superior court‘s failure to give appropriate instructions to the jury in this case constitutes harmless errоr.1
I. MENS REA
At the time of Flink‘s offense,
(a) A person commits the crime of sexual abuse of a minor if, being 16 years of age or older he engages in
(2) sexual contact with a person who is under 13 years of age.2
At the time of Flink‘s offenses, the term “sexual contact,” was defined in
(51) “Sexual contact” means
(A) the intentional touching, directly or through clothing, by the defendant of the victim‘s genitals, anus, or female breast; or
(B) the defendant‘s intentionally causing the victim to touch, directly or through clothing, the defendant‘s or victim‘s genitals, anus, or female breast.³
The position taken by the state is that this statutory language should be applied literally. Thus, the state urges us to hold that sexual abuse can be established by proof of a voluntary act of sexual contact. The state concedes that the statutory definition of sexual contact is broad, but it maintains that the possibility of punishing innocent conduct has been avoided by the statute which provides that use of nondeadly force is justified in certain circumstances involving special relationships between adults and children. The state relies on the defense of justification defined in
Justification: Use of force, special relationships. (a) The use of force upon another person that would otherwise constitute an offense is justified under any of the following circumstances:
(1) When and to the extent reasonably necessary and appropriate to promote
the welfare of the child or incompetent person, a parent, guardian, or other person entrusted with the care and supervision of a child under eighteen years of age or an incompetent person may use reasonable and appropriate nondeadly force upon that child or incompetent person.
(2) When and to the extent reasonably necessary and appropriate to maintain order and when the use of force is consistent with the welfare of the students, a teacher may, if authorized by school regulations and the principal of the school, use reasonable and appropriate nondeadly force upon a student ....
(5) A licensed physician, paramedic, or registered nurse; or a person acting under the direction of a licensed physician, paramedic, or registered nurse; or any person who renders emergency care at the scene of an emergency, may use reasonable and appropriate nondeadly force for the purpose of administering a recognized and lawful form of treatment which is reasonably adapted to promoting the physical or mental health of the patient if
(A) the treatment is administered with the consent of the patient or, if the patient is a child under eighteen years of age or an incompetent person, with the consent of the parent, guardian, or other person entrusted with care and supervision
of the child or incompetent person; or
(B) the treatment is administered in an emergency if the person administering the treatment reasonably believes that no one competent to consent can be consulted under the circumstances and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.⁴
The state notes that the revised criminal code defines “force”5 sufficiently broadly to include any physical touching, including innocent types of touching that might otherwise fall within the statutory definition of sexual contact. Thus, the state concludes that no criminal intent apart from a knowing act of sexual contact should be read into the statutory provisions governing sexual abuse of a minor.
In contrast, Flink contends that if the sexual abuse statute is applied literally, as proposed by the state, the offense would lack any criminal intent requirement and would therefore violate the constitutional right to due process of law. There is considerable merit to Flink‘s constitutional
concerns. The literal language of the sexual abuse of a minor statute prohibits any conduct amounting to a sexual contact. The term sexual contact is in turn defined expansively in
Because the provisions governing sexual abuse of a minor do not expressly impose an intent requirement other than a knowing act of sexual contact, and because “sexual contact” is broadly defined to include numerous parental, custodial and medical acts of a necessary and innocent nature, the offense would, in effect, be a strict liability crime unless the literal language of
It is insufficient to argue, as does the state, that the lack of an express criminal intent requirement in the sexual abuse statute is cured by the justification statute, which creates a defense when the use of nondeadly physical force is reasonable and necessary for parental, custodial or medical purposes. If the state‘s argument for literal statutory construction werе adopted, the statutes governing sexual abuse of a minor would in effect create a presumption that any act of knowing sexual contact was culpable. Unless the accused presented some evidence of justification, that presumption would be binding: the jury would not have the authority to reject the presumption and would be required to convict. Thus, the state would be permitted to charge people and bring them to trial for a wide variety of normal parental, custodial and medical acts, and those people would be subjected to conviction unless they were prepared to place the question of justification in issue. The grand jury would not consider the issue of justification before indicting, and the petit jury would consider it only if raised by the accused.
The problem with this approach is that the presumption of a culpable touching is simply irrational. The types of necessary and reasonable parental, custodial and medical contacts that are included within the statutory definition of sexual contact constitute the norm rather than the exception—they are realistically far more commonplace than the sexually motivated or otherwise harmful touching thаt the sexual abuse statute rightfully seeks to prevent. Thus, a presumption that acts falling within the definition of sexual contact will be culpable and subject to criminal sanction plainly lacks empirical validity and is rationally untenable. Such a presumption, since it is untenable, would violate due process. See County Court of Ulster County v. Allen, 442 U.S. 140, 156-60, 99 S.Ct. 2213, 2224-26, 60 L.Ed.2d 777, 791-94 (1979); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
Thus, in order to pass constitutional muster the offense of sexual abuse of a minor must be construed to require proof of a criminal intent beyond a knowing act of sexual contact. However, I do not think that the statutes governing this offense can reasonably be construed to require proof of specific intent. To the contrary, I believe that the legislature‘s desire to eliminate specific intent as an element of sexual abuse of a minor is abundantly clear.
The definition of sexual contact contained in
The only arguable indication that the legislature might have wanted to retain specific intent as an element of sexual abuse is the lack of any express discussion of eliminating specific intent in the commentary to the Revised Alaska Criminal Code or the commentary to the Tentative Draft. Yet I do not think that the silence of the code commentaries gives rise to a level of ambiguity sufficient to warrant judicial resurrection of the specific intent requirement. It seems entirely plausible that the absence of any discussion in the commentaries concerning specific intent reflects an undеrstanding by the drafters of the code that specific intent simply was not relevant to the offense of sexual abuse of a minor. Thus, I would conclude that there is nothing in the express language of the sexual abuse statute or in the legislative history of that provision to justify an interpretation adding a specific intent requirement to the offense of sexual abuse of a minor.
Nor do I believe that it is necessary to read specific intent into the sexual abuse statute in order to avoid constitutional problems; the statutory provisions generally applicable to all offenses within the Revised Alaska Criminal Code suggest a more suitable mens rea requirement than that of specific intent.
Under
(b) Except as provided in
AS 11.81.600(b) if a provision of law defining an offense does not prescribe a culpable mental state, the culpable mental state that must be proved with respect to(1) conduct is “knowingly“; and
(2) a circumstance or a result is “recklessly.”
In Reynolds v. State, 664 P.2d 621 (Alaska App.1983), this court considered the applicability of
Our holding in Reynolds provides the correct rationale for deciding the mens rea issue in this case. In cases of sexual abuse of a minor, the state is expressly required to establish a knowing act of sexual contact. Because the broad statutory definition of sexual contact makes it inaccurate to characterize the requirement of knowing conduct as a culpable mental state,
Moreover, interpreting the sexual abuse statute to require recklessness as the applicable culpable mental state would be consistent with the interpretations that the courts of Michigan and Arizona have given to similar statutory provisions, upon which Alaska‘s statute was based. See, e.g., People v. Brewer, 101 Mich.App. 194, 300 N.W.2d 491, 492 (1981) (under M.C.L. § 750.520a(g), sexual contact requires proof of an intentional touching that can reasonably be construed as having been committed for the purpose of sexual arousal or gratification; actual intent need not be proved); State v. Madsen, 137 Ariz. 16, 667 P.2d 1342, 1344 (Ariz.App.1983) (under A.R.S. § 13-1410, determination whether the accused acted with an unnatural or abnormal sexual interest must be objectively made on the basis of community standards; actual intent need not be proved).
Finally, interpreting the sexual abuse statute to require recklessness comports with the recommendations of the National Legal Resource Center for Child Advocacy and Protection of the American Bar Association, Young Lawyers Division. Recommendation 1.6 of their report, Recommendations for Improving Legal Intervention in Intra-Family Child Sexual Abuse Cases (1982), defines the offense of sexual abuse of a child to include a broad range of physical contact, but expressly excludes from that definition “acts which may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child ....” Although the National Legal Resource Center‘s recom-
I conclude that there is sound authority favoring an interpretation of the Alaska sexual abuse statutes that would require proof of a reckless disregard for lack of justification as the criminal intent for the offense. As a matter of statutory interpretation, I believe this approach is more tenable than the alternative of requiring proof of specific intent. Accordingly, I disagree with the majority‘s decision to require proof of specific intent аs an element of sexual abuse of a minor.
II. HARMLESS ERROR
Regardless of whether recklessness or specific intent is adopted as the criminal intent for sexual abuse of a minor, I cannot agree with Judge Singleton‘s conclusion that the trial court‘s failure to instruct properly on criminal intent was harmless error. I agree with Judge Singleton that the jury would not have been likely to find an absence of specific intent, knowledge, or recklessness under the evidence presented. However, Flink‘s jury was never instructed that it was necessary to find that Flink acted with any culpable mental state. Flink certainly did not concede that the jury would be required to find that he acted recklessly or with specific intent if it rejected his version of the offense. Nor was his defense necessarily inconsistent
with a defense based on lack of criminal intent, as, for example, an alibi defense might have been. Finally, this was not a case in which the arguments of the parties effectively required the jury to find mens rea. See J.E.C. v. State, 681 P.2d 1358 (Alaska App., 1984). Cf. Reynolds v. State, 664 P.2d 621, 628 (Alaska App.1983).
In effect, the trial court‘s failure to instruct the jury on the necessity of finding an appropriate criminal intent deprived Flink of the opportunity to obtain a jury determination of that issue. Since Flink did not expressly concede criminal intent and did not present a defеnse that was necessarily inconsistent with lack of specific intent or recklessness, I believe that it would be improper to deny Flink his right to a jury determination of that issue, whether recklessness or specific intent is adopted as the appropriate criminal intent for the offense. Regardless of the apparent strength of the evidence against him on criminal intent, Flink is entitled to have a jury determine all of the essential elements of the offenses charged.8
Thus I believe Flink‘s case must be remanded for a new trial on Counts I, III, IV and V.
Notes
Sexual abuse of a minor. (a) A person commits the crime of sexual abuse of a minor if, being 16 years of age or older, he
(1) engages in sexual penetration with a person who is under 16 years of age but 13 years of age or older ...;
(2) engages in sexual contact with a person who is under 13 years of age...;
(b) Sexual abuse of a minor is a class C felony.
See supra notes 1-3 at 726. I join in the conclusion that Flink‘s conviction of Count VI of the indictment, which charged first-degree sexual assault, must be affirmed. I also join in part III of Judge Singleton‘s opinion, which affirms Flink‘s sentence for first-degree sexual assault.Contributing to the delinquency of a minor. (a) A person commits the crime of contributing to the delinquency of a minor if, being 19 years of age or older, he
(4) engages in sexual contact with a child under 16 years of age but 13 years of age or older;
(b) Contributing to the delinquency of a minor is a class A misdemeanor.
Flink additionally argues that the term “sexual contact” is defined so as to chill the exercise of the first amendment right to freedom of religion. He claims that under the statute, circumcision, a Jewish ritual, is punishable. The legislature has recently redefined the offense of sexual abuse of a minor, providing for four separate degrees of sexual abuse. SeeFlink was also convicted of contributing to the delinquency of a minor,
(a) A person commits the crime of contributing to the delinquency of a minor if, being 19 years of age or older, he
(4) engages in sexual contact with a child under 16 years of age but 13 years of age or older.
As charged in this case, the contributing to the delinquency of a minor statute was a lesser offense of sexual abuse of a minor, differing only in the requirement governing the age of the victim. The offense was a class A misdemeanor. Because the statutory definition of “sexual contact” is crucial both to the sexual abuse charges and the charge of contributing to the delinquency of a minor in Flink‘s case, my discussion of “sexual contact” applies to both offenses.
(15) “defense“, other than an affirmative defense, means that
(A) some evidence must be admitted which places in issue the defense; and
(B) the state then has the burden of disproving the existence of the defense beyond a reasonable doubt.
(22) “force” means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement; “force” includes deadly and nondeadly force.
(a) The use of force upon another person that would otherwise constitute an offense is justified under any of the following circumstances:
(1) when and to the extent reasonably necessary and appropriate to promote the welfare of the child ... a parent, guardian, оr other person entrusted with care and supervision of a child under 18 years of age ... may use reasonable and appropriate nondeadly force upon that child ....
....
(5) A licensed physician, paramedic, or registered nurse; or a person acting under [his] direction ... may use reasonable and appropriate nondeadly force for the purpose of ad-
(A) the treatment is administered ... if the patient is a child under eighteen years of age ... with the consent of the parent, guardian, or other person entrusted with care and supervision ....
The state notes that “force” is defined broadly to include any unprivileged touching and is therefore the equivalent of a common law assault or battery.
The use of “intentional” and “intentionally” in the definition of “sexual contact” appears to be carried over from the Tentative Draft of the Revised Alaska Criminal Code, in which the mental state “intentionally” could relate to either conduct or results. Under the Tentative Draft, if “intentionally” related to conduct instead of result, its meaning was synonymous to “knowingly.” See generally Neitzel v. State, 655 P.2d 325, 328-30 (Alaska App.1982) (holding that the language of Alaska‘s second-degree murder statute, applicable to a person who “intentionally performs an act that results in the death of another person,” must be construed to require knowing conduct and not specific intent).
The rule that a penal statute is to be strictly construed shall not apply to chapter 743, Oregon Laws 1971, or any of its provisions. Chapter 743, Oregon Laws 1971, shall be construed according to the fair import of its terms, to promote justice and to effect the purposes stated in subsection (1) of this section.
In other respects
a person acts “recklessly” with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk.
Thus, in the context of a case involving sexual abuse of a minor, the prosecution would be required to show that the accused knowingly committed an act within the statutory definition of “sexual contact” and that, in so doing, he consciously disregarded a substantial and unjustifiable risk that the act would not be justified. As specified in