People v. Simpson
347 N.W.2d 215
Mich. Ct. App.
1984
Check Treatment
Mackenzie, P.J.

Dеfendant appeals by leave granted from his conviction of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), after a bench trial. Defendant was sentenсed to from 7-1/2 to 15 years imprisonment. The victim was the defendant’s daughter, who was 19 or 20 years old at the time of the offense.

Defendant first claims that his conviсtion must be reversed because the court erred in permitting defendant’s wife, who is also the victim’s mother, to testify at the trial. In response to defendant’s objection to his wife’s testifying based on the spousal privilege statute, the court ruled that while defendant’s wife could not testify as to any communications shе had with defendant, she could otherwise testify under the statutory exception for "cases of prosecution for a crime committed against the children of either or both”, MCL 600.2162; MSA 27A.2162. Defendant argues that this exception should apply only where the child is a minor and should not apply here since the victim wаs 19 or 20 years old at the time of the offense.

This argument has not heretofore been addressed by any Michigan appellate court. However, аs a general matter, this Court has stated that the spousal privilege statute should be narrowly construed, and thus its exceptions should be broadly construed. People v Love, 127 Mich App 596; 339 NW2d 493 (1983); People v Wadkins, 101 Mich App 272, 283; 300 NW2d 542 (1980). Cоnsequently, we hold that the exception for crimes committed ‍‌‌‌​‌​‌‌‌​​‌​‌‌‌​​​‌‌​​​‌​​​‌‌​​‌‌‌‌​​​‌‌​‌‌​‌​​‍against the children of one or both spouses is not *263 restricted to minor children, but rather extends to all children regardless of age. The term "children” used in the statute does not necessarily imply any age limit, and the Legislature could have easily used the term "minor children” if such a limitation were intended. That the modern justification for spousal privilege is the preservation of marital harmony alsо supports our holding. People v Love, supra; People v Wadkins, supra, p 283. It is unlikely that there is much marital harmony left to preserve where, as in the instant case, one spouse has committed a crime against the other spouse’s child.

Defendant also contends that there was insufficient evidence to support his conviction of first-degree criminаl sexual conduct. In reviewing the sufficiency of the evidence in an appeal from a bench trial, we must determine whether, viewing the evidence in а light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime proven beyond a reаsonable doubt, People v Marlin Smith, 119 Mich App 91, 94; 326 NW2d 434 (1982); People v Gregory Johnson, 112 Mich App 483, 489; 316 NW2d 247 (1982), or whether the court clearly erred, People v Triplett, 105 Mich App 182, 190-191; 306 NW2d 442 (1981), remanded 414 Mich 898; 323 NW2d 7 (1982); People v Anderson, 112 Mich App 640, 648; 317 NW2d 205 (1981). Defendant herein was convicted of first-degree criminal ‍‌‌‌​‌​‌‌‌​​‌​‌‌‌​​​‌‌​​​‌​​​‌‌​​‌‌‌‌​​​‌‌​‌‌​‌​​‍sexual conduct under §(l)(f) of MCL 750.520b; MSA 28.788(2), i.e., defendant used force or coercion and caused personal injury to the victim. The element of personal injury is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ”. MCL 750.520a(f); *264 MSA 28.788(l)(f). In the present case, there was no evidence of any physical injury to the victim, and the prosecutor’s theory was that the "personal injury” element was satisfied by the victim’s having suffered "mental anguish”.

Defendant argues that there was not suffiсient evidence of mental anguish to justify his conviction of criminal sexual conduct in the first degree, and that his conviction should be reduced to third-degreе criminal sexual conduct. At the trial, defendant had unsuccessfully moved for a directed verdict, arguing that the prosecutor had failed to establish the degree of mental anguish necessary for first-degree criminal sexual conduct. This Court has previously wrestled with the fact that under the criminal sexual conduct statute criminal sexual conduct can be elevated from the third degree to the first degree, or from the fourth degree to the second degree, based on proof of mental anguish as the requisite personal injury. Compare MCL 750.520b(l)(f); MSA 28.788(2X1X0 with MCL 750.520d(l)(b); MSA 28.788(4)(l)(b), and MCL 750.520c(l)(f); MSA 28.788(3X1X0 with MCL 750.520e(l)(a); MSA 28.788(5)(l)(a). Since any forced or coerced sexuаl penetration or contact is likely to cause some mental anguish to the victim, it is necessary in some way to meaningfully distinguish the mental anguish needed to elevate the degree of the offense. However, attempts by this Court to do so have not met with uniform results.

In People v Gorney, 99 Mich App 199; 297 NW2d 648 (1980), lv den 410 Mich 911 (1981), a case decided after the trial of the instant case, it was concluded that "extreme” or "serious” mental ‍‌‌‌​‌​‌‌‌​​‌​‌‌‌​​​‌‌​​​‌​​​‌‌​​‌‌‌‌​​​‌‌​‌‌​‌​​‍anguish was required to elevate the offense. This approach was also used in the more recent case of People v Thorin, 126 Mich App 293, 300-301; 336 *265 NW2d 913 (1983). However, in People v Jenkins, 121 Mich App 195, 198-202; 328 NW2d 403 (1982), which was followed in People v Petrella, 124 Mich App 745, 760-764; 336 NW2d 761 (1983), the Gorney approach of requiring "extreme” or "serious” mental anguish was rejected, and the proper inquiry was fоund to be whether there was evidence of "any significant degree of mental distress greater than that normally attendant to criminal sexual assaults aсcomplished by force or coercion”. People v Jenkins, supra, p 201; People v Petrella, supra, p 762 (quoting Jenkins, supra). Also, several other panels have expressly declined to endorse the Gorney standard. People v Izzo, 116 Mich App 255, 259; 323 NW2d 360 (1982); People v Baker #2, 103 Mich App 704, 709; 304 NW2d 262 (1981), lv den 417 Mich 1093 (1983).

The author of this opinion was on the Gorney panel, and another member of this panel was on the Jenkins panel. Both decisions acknowledged that to elevate the offense some degree of mental anguish greater than that which could be expected to accompany any forced or coerced sexual assault is required. We find those decisions are not in fact so far apart, and may be rеconciled. We hold that the mental anguish required to elevate the offense must be "extreme” or "serious”, People v Gorney, supra, which we define as "any significant degree оf mental distress greater than that normally ‍‌‌‌​‌​‌‌‌​​‌​‌‌‌​​​‌‌​​​‌​​​‌‌​​‌‌‌‌​​​‌‌​‌‌​‌​​‍attendant to criminal sexual assaults accomplished by force or coercion”, People v Jenkins, surpa. To the extent the usе of the terms "extreme” or "serious” in Gorney was meant to convey even a higher degree of mental anguish than that just described, the author of this opinion no lоnger agrees with that decision.

We must now determine whether there was *266 sufficient evidence of extreme or serious mental anguish as defined above to warrant defendant’s conviction of first-degree criminal sexual conduct. Some relevant factors are whether the victim required psychiatric care, whether there has been some interference with the victim’s ability to carry on a normal life, such as absence from work, or whether there are other indications that the victim has suffered lasting effects. People v Petrella, supra, pp 763-764; People v Gorney, supra, p 207. The testimony in the present case indicated that immediately after the incident the victim was upset and crying and screamеd at defendant; defendant told her she would have to calm down before they could return to defendant’s home. ‍‌‌‌​‌​‌‌‌​​‌​‌‌‌​​​‌‌​​​‌​​​‌‌​​‌‌‌‌​​​‌‌​‌‌​‌​​‍When they arrived at defendant’s home, thе victim was at that time upset and crying. The victim and her mother then went to the victim’s apartment, where the victim cried some more, and her mother spent the night at her apartment.

While there was no evidence demonstrating that the victim required psychiatric care or that her normal activities have bеen disrupted, we find that, based on the testimony reflecting her emotional distress shortly after the incident, together with the fact that the victim’s assailant was her nаtural father, the trier of fact could reasonably infer that the victim has suffered lasting emotional effects and mental anguish greater than that normally attendant to a forcible sexual penetration. Any forcible sexual assault is bound to cause some mental anguish to the victim, but where the assailant is thе victim’s own father, it can be reasonably inferred that even greater mental anguish is experienced by the victim, given the societal taboo on incest and also the victim’s loss of a healthy relationship with her father. Al *267 though the victim herein testified that she did not report the incident until about a week later because she had not "thought too much about it”, we do not find this statement to negate an inference of extreme or serious mental anguish; rather, this testimony could just as reasonably be interpreted as simply reflecting the victim’s all-too-natural reluctance to bring criminal charges against her father.

Affirmed.