IN RE M.S., APPELLANT.
No. 15-FS-313
District of Columbia Court of Appeals
October 12, 2017
Aрpeal from the Superior Court of the District of Columbia (DEL-1678-14)
(Hon. Florence Y. Pan, Trial Judge)
(Argued June 1, 2016 Decided October 12, 2017)
Daniel S. Harawa, Public Defender Service, with whom James Klein, Shilpa S. Satoskar and Samia Fam, Public Defender Service, were on the brief, for appellant.
John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge,+ THOMPSON, Associate Judge, and FERREN,* Senior Judge.
+ Chief Judge Blackburne-Rigsby was an Associate Judge at the time of oral argument. Her status changed to Chief Judge on March 18, 2017.
* Senior Judge Warren R. King was on the panel at the time this case was argued. On November 23, 2016, Judge King retired and Senior Judge John M. Ferren replaced Judge King as a member of the panel.
Based upon the plain language, structure, and legislative history of the Anti-Sexual Abuse Act of 1994 (“ASAA“), as well as our relevant case law, we hold that the offenses of misdemeanor sexual abusе and fourth-degree sexual abuse merge with the offense of second-degree child sexual abuse. However, we hold that the offense of third-degree sexual abuse, which requires proof of force, does not merge
I. Factual Background
This case arises from two instances of sexual contact that appellant, who was thirteen and fourteen years old at the relevant times, initiated against his cousin, R.J., who was nine years old. R.J. frequently visited appellant in the spring and summer of 2014 to play video games. On August 9, 2014, while R.J. was playing “Minecraft,” appellant made oral contact with R.J.‘s genitals through his pants. He then forced R.J. to lie down, and appellant sat on him to force oral contact with appеllant‘s genitals through his clothing. The activity stopped when R.J.‘s father called him downstairs to leave. R.J. described the sexual contact to his father during the drive home, and at some point, it became clear that similar contact between M.S. and R.J. had occurred before. The trial court credited R.J.‘s explanation for not reporting sooner: that he did not want to lose access to the better television and game system at appellant‘s home.
After R.J. described the incident to his father, on August 9, R.J.‘s father immediately drove back to appellant‘s home and angrily confronted him.
The trial court found that at least two instances of sexual contact occurred, that appellant was at least four years older than R.J. at those times, and that appellant intended to gratify sexual desire through his conduct with R.J. Significantly, the trial court also found: (1) that, in accordance with the third-degree sexual abuse charge, appellant had used force by sitting on R.J., (2) that, in accordance with the fourth-degree sexual abuse charge, appellant had reason to know that R.J. could not appraise the nature of the conduct, and (3) that, in accordance with the misdemeanor sexual abuse charge, R.J. did not consent to the sexual contact. Appellant was adjudicаted delinquent on all eight counts (four counts for each incident) and was sentenced to one year of probation, including group therapy and ninety hours of community service. This appeal followed.
The Double Jeopardy Clause “protects against multiple punishments for the same offense.” United States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998) (citation and internal quotation marks omitted); see also United States v. Mahdi, 598 F.3d 883, 887 (D.C. Cir. 2010) (citation omitted). To determine whether convictions merge, we apply the default rule articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), which states that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.” See
All four of the criminal code provisions under which appellant was charged were enacted under the ASAA in 1994. See D.C. Council, Report on Bill 10-87 (Sep. 28, 1994). The Council of the District of Columbia (“D.C. Council” or “Council“) stated that the purpose behind the ASAA was to “strengthen and reform the existing laws against rape and sexual abuse in the District of Columbia.” Id. at 1. In line with this purpose, the ASAA “modernize[d] the District‘s antiquated rape and sexual assault laws” by “creаting graded offenses for sexual assaults of varying [degrees of] severity[.]” Id. at 2. In addition to creating graded forms of sexual
Upon reviewing the legislative history of the ASAA, we see no clear expression of the D.C. Council‘s intent as to whether or not the crimes of the ASAA should merge. While the Council stated in its Committee Report for the ASAA that it sought to “make the laws governing sexually abusive conduct more inclusive, flexible[,] and reflective of the broad range of abusive conduct which does in fact occur,” Rep. on Bill 10-87 at 1, this expression by the Council does not indicate whеther it intended to allow multiple convictions based upon the same act. Neither does the Council‘s creation of “graded offenses for sexual assaults” and its separation of the sexual assault offenses into different categories, indicate whether the Council intended that each instance of sexual conduct would be prosecuted as
Furthermore, the D.C. Council has not provided explicit guidance on merger of offenses under the ASAA, as it has done in other contexts. See, e.g.,
When applying the Blockburger test, we compare the elements of the relevant offenses to determine “whether each provision requires proof of a fact the other does not.” 284 U.S. at 304; see also Byrd, supra, 598 A.2d at 389. Both parties claim to prevail under the Blockburger analysis by applying the test differently. The government focuses solely on the language of the elements of each offense. Appellant instead asks whether it is possible to commit one crime without committing the other. The latter approach reflects the correct application of Blockburger. See, e.g., Z.B., supra note 2, 131 A.3d at 355 (“[I]t is not possible to commit robbery without also committing assault, and assault accordingly merges as a lesser-included offense“).
For example, in Tyree v. United States, 629 A.2d 20, 22-23 (D.C. 1993), we considered whether the crimes of carrying a pistol without a license (“CPWL“) and possession of an unregistered firearm (“UF“) merge. Observing that one could potentially have a non-pistol firearm that was not properly registered stored within her own home (thus committing UF without committing CPWL) and that, conversely, one could carry a registered pistol on the streets without a proper license (thus committing CPWL without committing UF), we concluded that the crimes did
This is not to say that Blockburger precludes multiple convictions for a single act; it is axiomatic that the same act can give rise to multiple convictions so long as each crime has a unique element. See, e.g., Richardson v. United States, 116 A.3d 434, 439-40, 439 n.2 (D.C. 2015) (stating that the fact-based merger inquiry, in which we looked to whether one crime was “incidental” to another to determine if the offenses merged, had been overruled by Byrd). Nevertheless, “a lesser offense will merge into a greater offense if guilt of the lesser offense ‘is necessarily
B. Application of Blockburger to the ASAA Crimes at Issue
Second-degree child sexual abuse requires proof of three elements: (1) that the defendant was “at least 4 years older than [the] child” at the time of the offense, (2) that the defendant “engage[d] in sexual contact with that child or caus[ed] the child to engage in sexual contact[,]”5 and (3) that the defendant did so “with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire.” See
Blockburger requires us to compare the elements of second-degree child sexual abuse with the elements of (1) misdemeanor sexual abuse, (2) fourth-degree sexual abuse, and (3) third-degree sexual abuse, in order to ascertain whether it is possible to commit the first offense, without committing the last three offenses. See Appendix A (“Table of Elements of the ASAA Crimes at Issue“). In doing so, we also consider whether the traditional presumptions of non-consent (premised on a child‘s incapacity to consent) and use of force in child sexual abuse prosecutions were retained by the ASAA. See, e.g., Davis, supra, 873 A.2d at 1104-05 (discussing the historical presumptions of force and non-consent for sexual assaults committed against children).
1. Misdemeanor Sexual Abuse
Misdemeanor sexual abuse requires proof of three elements: (1) thаt the defendant “engage[d] in a sexual act or sexual contact with another person[,]” (2)
We have previously addressed the intersection of second-degree child sexual abuse and misdemeanor sexual abuse, albeit indirectly, in Davis v. United States. In that case, Davis was convicted of attempted misdemeanor sexual abuse for engaging in sexual conduct with his eleven-year old daughter, although this court acknowledged that he could have been convicted of second-degree child sexual abuse. 873 A.2d at 1103, 1105 n.7. Davis argued on appeal that because
Our holding in Davis makes clear that proof of at least a four-year age gap between the defendant and a child victim of sexual assault itself constitutes proof of the second element of misdemeanor sexual abuse: that the sexual contact was committed without the child‘s valid permission. See
2. Fourth-Degree Sexual Abuse
We now consider whether fourth-degree sexual abuse merges with second-degree child sexual abuse. Fourth-degree sexual abuse requires proof of three elements: (1) that the defendant “engage[d] in or cause[d] sеxual contact with or by
Our holding in Davis that the ASAA retains the conclusive presumption that children cannot consent to sexual contact, at least where the defendant is at least four years older than the child, is also a helpful guide for our analysis here. See 873 A.2d at 1105-06 & n.8. We explained that this conclusive presumption was founded upon the notion that “children ‘do not have the capacity to consent to intimate sexual touching[.]‘” id. at 1105 (quoting Jenkins v. United States, 506 A.2d 1120, 1123 (D.C. 1986)) because child victims “do not understand what is happening to them” during sexual contact, id. (quoting Guarro, supra, 237 F.2d at 581). Thus, the result
Our reasoning in Davis is consistent with the long line of cases employing a presumption that children cannot consent to sexual contact. The presumption is not literal (i.e., that a child cannot form the words to express consent); it is instead based upon a child‘s lack of experience with sеxual contact, which necessarily dictates that consent cannot be meaningfully given, as well as the need to protect children from undue pressure from older partners. For example, in Williams v. United States, involving sexual contact between a thirty-five year old defendant and fourteen-year old child, this court stated “[w]hile it is true that [the child victim] may have been a willing participant, when an age gap . . . exists, the minor cannot consent to sexual [contact] in a meaningful way.” 756 A.2d 380, 386 (D.C. 2000). Similarly, in Beausoliel v. United States, the D.C. Circuit held that “[y]oung girls” cannot consent to sexual contact, explaining that they are “within the necessary protection of the law” in order to avoid “persons [from taking] advantage of their ignorance and inexperience[.]” 107 F.2d 292, 296 (D.C. Cir. 1939). Thus, the presumption that child victims cannot consent is interwoven with an underlying rationale that
When the Council developed the ASAA, the Council defined new crimes that went beyond crimes that existed when the presumptions of force and non-consent for sexual contact with children developed. See Ballard v. United States, 430 A.2d 483, 485-86 (D.C. 1981) (explaining the crimes of “rape,” which protected adults from forcible, non-consensual sexual acts, and “carnal knowledge,” which protected female children under the age of sixteen by presuming force and non-consent). Fourth-degree sexual abuse is one of the new sexual assault crimes, which criminalizes sexual contact with a person “incapable of appraising the nature of the conduсt.”
The rationale underlying the presumption that children cannot consent, in our view, readily extends to the additional proof required for fourth-degree sexual abuse. We have held that child victims are unable to meaningfully consent to sexual contact with an older person because they “do not understand what is happening to them.” See Parnigoni v. District of Columbia, 933 A.2d 823, 827 (D.C. 2007) (citation and internal quotation marks omitted); Guarro, supra, 237 F.2d at 581. Thus, it necessarily follows that if a child victim does not understand what is happening during sexual contact, then he/she is also “incapable of appraising the nature of the [sexual conduct]” with an older person, as required for fourth-degree sexual abuse.
Moreover, we note that proving a distinct, unmerged fourth-degree sexual abuse charge based upon a particular child victim‘s inability to appraise the nature of sexual contact would require an inquiry intо the victim‘s sexual experience or knowledge. Such an inquiry would require evidence that may be excluded by the “Rape Shield Law,” a protection for victims that was also enacted by the ASAA.11 “The Rape Shield Law was enacted as a safeguard against unwarranted invasions of privacy and also serves to exclude largely irrelevant evidence that may distract the jury or lead it to discount the complainant‘s injury because of societal stereotypes
Arguably, some older children may be able to understand sexual contact. This is something that the Council also recognized, but only as it pеrtained to sexual contact between children of similar ages. In the ASAA‘s Committee Report, the Council explained that in creating the four-year age gap requirement for child sexual assault offenses, it was “recognizing but not condoning the sexual curiosity which exists among young persons of similar ages.” Rep. on Bill 10-87 at 15 (emphasis added). In line with this statement, we acknowledged in Davis, that the ASAA slightly modifies the traditional rule that a child is incapable of consenting to sexual contact, by making the consent defense available in cases in which the sexual assault victim is a child, but there is less than a four-year age difference between the child and the defendant.12
This result is in line with our holding in Davis, and also furthers the purpose of our Rape Shield Law. In sum, when comparing the elements of the crimes as required by Blockburger and recognizing a conclusive presumption that a child who is at least four years younger than the defendant has an “inability to appraise the nature of the [sexual contact],”
3. Third-Degree Sexual Abuse
Third-degree sexual abuse requires proof of three elements: (1) that the defendant “engage[d] in or cause[d] sexual contact with or by another person, (2) “[b]y using force against that othеr person[,]” and (3) “with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire.”
Third-degree sexual abuse, which requires use of force, is a step removed from the extensive discussion in Davis regarding a child victim‘s inability to consent to sexual contact, because force and non-consent are generally understood to be independent aspects of a sexual assault. Prior to the ASAA, “when a child under the age of consent [was] involved[,] the law conclusively presume[d] force and the question of consent [was] immaterial.” Davis, supra, 873 A.2d at 1105 (quoting
Upon this review of the ASAA‘s plain language and legislative history, we conclude that the ASAA does not retain a presumption of force for sexual contact with children. Thus, the fact that there is a four or more year age gap between the defendant and child victim of sexual assault, does not trigger a presumption that force was used during the sexual contact. Instead, in a criminal prosecution in which both third-degree sexual abuse and second-degree child sexual abuse are charged, the force element of third-degree sexual abuse must be proven independently from the four-year age gap requirement under second-degree child sexual abuse. Accordingly, it is possible to commit second-degrеe child sexual abuse without committing third-degree sexual abuse, and thus, those offenses do not merge. Importantly, we note that in this case, the trial court made findings that appellant actually used force against R.J. without relying on a presumption of force arising from R.J.‘s youth. Thus, because M.S.‘s adjudication of delinquency for third-degree sexual abuse rested on independent findings that he used force against R.J. (the unique element for third-degree abuse), those adjudications are affirmed.17
Contrary to the parties’ contentions, the plain language and legislative history of the Anti-Sexual Abuse Act of 1994 do not clearly indicate a policy on merger of the various sexual assault offenses. We hold, based upon our analysis of the ASAA and our prior decisions in Davis and Blockburger, that every act fulfilling the elements of second-degree child sexual abuse necessarily also fulfills the elements of misdemeanor sexual abuse and fourth-degree sexual abuse. In other words, it is impossible to commit second-degree child sexual abuse without triggering a conclusive presumption that the child victim was incapable of giving permission, as required for misdemeanor sexual abuse. It is also impossible to commit second-degree child sexual abuse without triggering a conclusive presumption that the child victim was incapable of appraising the nature of the conduct, as required for fourth-
In contrast, we hold that the ASAA does not presume a use of force merely by the fact that a defendant is at least four years older than a child victim of sexual assault, and the government‘s proof that a defendant used force to accomplish a sexual contact may sustain an independent adjudication of delinquency (or conviction) for third-degree sexual abuse. Thus, appellant‘s adjudications of delinquency for third-degree child sexual abuse, having rested on independent findings that appellant actually used force against the child victim, do not merge with his second-degree child sexual abuse adjudications. Accordingly, we affirm in part and remand for merger consistent with this opinion.18
While appellant discussed Judge Farrell‘s concurring opinion, appellant made clear several times in his briefs and at oral argument that he is not arguing that he was improperly charged in this case. See, e.g., Reply Br. of Appellant at 9, In re M.S., No. 15-FS-313 (May 25, 2016) (“M.S. is not challenging [the government‘s] charging decisions“); id. at 8 (“M.S. does not argue . . . that the District could not charge the general sexual assault offenses given that the complainant in this case was a child.“); see also Oral Argument, at 10:21, In re M.S., No. 15-FS-313 (June 1, 2016) (statement from defense counsel that “[w]e‘re not saying that the crimes can‘t be charged, we‘re just saying that they have to merge“). Accordingly, because appellant is not challenging the government‘s decision to charge him with general sexual abuse offenses in this case, we again leave for another occasion the issue of whether the government may charge general sexual abuse in circumstances in which child sexual abuse offenses are applicable.
| Crime | Elements | Statutory Source |
|---|---|---|
| Second-Degree Child Sexual Abuse | Sexual Contact with a Child | |
| Defendant is at least 4 Years Older Than the Child | ||
| Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | ||
Image in original document | ||
| Third-Degree Sexual Abuse | Sexual Contact with Another Person | |
| By Using Force Against that Person | ||
| Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Grаtify Sexual Desire | ||
Image in original document | ||
| Fourth-Degree Sexual Abuse | Sexual Contact with Another Person | |
| Knows or Has Reason to Know that the Other Person Is Incapable of Appraising the Nature of the Conduct | ||
| Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | ||
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| Misdemeanor Sexual Abuse | Sexual Contact with Another Person | |
| With Knowledge or Reason to Know that Act is Without the Person‘s Permission | ||
| Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | ||