Lead Opinion
This Court issued a writ of certiorari to address the State’s request that this Court overrule Ex parte J.A.P.,
Facts and Procedural History.
The Court of Criminal Appeals, in its opinion, summarized the pertinent facts surrounding the offense:
“In the summer of 2012, Higdon, who was 17 years old, worked as an intern at Momma’s Placе Christian Academy, a day-care facility. Higdon’s duties primarily consisted of cleaning the day-care facility and supervising children, either alone or in conjunction with an adult. During that summer, K.S., who was then four years old, was enrolled as a student at Momma’s Placе.
“During August 2012, Higdon accompanied K.S. to the bathroom on multiple occasions. While in the bathroom, Hig-don pulled down KS.’s pants, touched KS.’s penis, and performed oral sex on KS. K.S. did not report Higdon’s actions because Higdon told KS. not to tell anyone.
“On August 23, 20Í2, A.D., the parent of another child enrolled in the day-care facility, filed a police report alleging that Higdon had performed similar acts on her son. A.D. contacted KS.’s mother, K.W., to alert her to the allegations against Higdon. KW. asked KS. if anyone at thе day-care facility had touched him inappropriately. KS. replied that Higdon had touched him and had ‘put his mouth on his ■ wee-wee.’ During an interview with the clinical director of the Prescott House, a child-advocacy center, KS. stated that Hig-don had tоuched him and had performed oral sex on him on- several occasions in the bathroom at Momma’s Place.”
Higdon v. State,
A jury convicted Higdon of first-degree sodomy of KS., a child less than 12 years old, § 13A-6-63(a)(3), Ala.Code 1975, and of first-degree sodomy by forcible compulsiоn of KS., '§ 13A-6-63(a)(l), Ala,Code 1975. Higdon appealed his convictions to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed Higdon’s conviction for first-degree sodomy of a child less than 12 years old and reversed Higdon’s conviction for first-degree sodomy by forcible compulsion, holding that the State had failed to present sufficient evidence of the element of forcible compulsion, and rendered a judgment in Higdon’s favor on that charge. Higdon v. State,
Standard of Review
The State’s request that this Court overrule Ex parte J.A.P, requires this Court to
Discussion
The State contends that this Court should overrule Ex parte J.A.P. because, it says, Ex parte J.A.P. prohibits.thе State from proying the element of forcible compulsion through evidence of an implied threat, as defined in § 13A-6-60(8), Ala. Code 1975, in cases in which the defendant is a juvenile in a position of authority over a child victim.
To establish a prima facie cаse of first-degree rape or first-degree sodomy, thus allowing the matter to be submitted to the jury, the State must present evidence indicating that the defendant engaged in sexual intercourse by forcible compulsion, i.e., that the defendant engaged in sexual intercourse under circumstances in which the .victim earnestly resisted the sexual act or. was threatened into the sexual act. § 13A-6-61 and § 13A-6-63, Ala.Code 1975. “Forcible compulsion” is defined as “[pjhysical force that overcomes; earnest resistancе or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8),
In Powe v. State,
“[A] jury could reasonably infer that [the father] held a position of authority and domination with regard to .his daughter sufficient to allow the inference. of an implied threat to her if she rеfused to comply with his demands.”
“established a mechanism by which the unique relationship- between 'children and the adults who exercise a position of domination and control over them may be taken into consideration in determining whether the element of forcible -compulsion has been established.”
In Ex parte J.A.P., this Court refused to extend the forcible-compulsion analysis in Powe to a case in which the defendant charged with attempting to. engage in sexual intercourse by forcible compulsion with a child was a juvenile. Instead of focusing on whether the totality of the- evidence sufficiently -established that the juvenile defendant exercised a position of domination and control over the child victim, such that a jury could - infer an implied threat
Upon further consideration, however, we recognize that the focus in dеtermining whether sufficient evidence has been presented from which a jury can infer that forcible compulsion by an implied threat exists should be the perspective of the child victim. As this Court recognized in Powe:
“When a defendant who plays 'an authoritative role in a child’s world instructs the child to submit to certain acts, an implied thrеat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the ‘wrongness’ of the conduct, the child may submit to acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse.”
In overruling Ex parte J.A.P., this Court returns to an approach more consonant with the statutory definition of forсible compulsion and the principles set forth in a Powe in conducting a forcible-compulsion analysis when a defendant, regardless of his or her age, exercises a position of domination and control over a child.
Conclusion
Accordingly, the judgment of the Cоurt of Criminal Appeals is reversed, and this case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes
. Higdon did not petition this Court for cer-tiorari review of the Court of Criminal Appeals’ decision affirming his conviction for first-degree sodomy of a child lеss than 12 years old. Therefore, that conviction is not before this Court for review.
Note from the reporter of decisions: On December 11, 2015, on remand from the Ala- ■ bama Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-13-1305).
Concurrence Opinion
(concurring specially).
I concur fully in the main opinion, which overrules Ex parte J.A.P.,
“We continue to believe thаt the focus in cases of this kind ... must be on the*1023 child victim and that the issue of the sufficiency of the evidence to support a finding of forcible compulsion must be resolved by viewing the totality of the evidence from the perspective of the child victim. We also believe that in close cases of this nature, the juvenile court is in a unique position to assess the credibility of the witnesses and to determine whether a young child was physically compelled or psychologically coerced or conditioned by years of sexual abuse into participating, in a sex act with an older child.”
Dissenting Opinion
(dissenting).
I dissent because I am concerned the Court is stepping into the shoes of the legislature in this case.
Sodomy is an abhorrent crime and should be strictly punished. In this case the defendant, Eric Lemont Higdon, a 17-year-old who worked as an intern at a day-care facility, was convicted under § 13A-6-63(a)(3), Ala.Code 1975, of sodomy in the first degree of a child under 12 years old and was sentenced to 23 years’ imprisonment. He-has not challenged that conviction on appeal.
Higdon was also charged under § 13A-6-63(a)(l), Ala.Code 1975, which states: “A person commits the crime of sodomy in the first degree if ... [h]e engages in deviate sexual intercourse with another by forcible compulsion.” (Emphasis added.) “Forcible compulsion,” in turn, is defined as “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala.Code 1975 (emphasis added).
Thе “implied” threat in the definition of forcible compulsion is not the threat of sexual assault but of “immediate death or serious physical injury.” The legislature has defined serious physical injury as “[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.” § 13A-1-2(14), Ala.Code 1975.
Because there was no evidence in this case of an implied threat of serious physical injury under this definition, or of an implied threat of death, Higdon cannot be convicted of sodomy in the first degree “by forcible compulsion.” This Court has previously taken the position that an implied threat under § 13A-6-60(8) may be inferred in cases “concerning the sexual assault of children by adults with whom the children are in a relationship of trust.” See Powe v. State,