State Ex Rel. W.C.P.
- Reporters:
- , , , , ,
- Before:
- Jackson, Bench, Billings
JACKSON, Judge:
¶ 1 Defendant was convicted in juvenile court of rape of a child, in violation of
BACKGROUND
¶ 2 Defendant, a fifteen-year-old boy, had sexual intercourse with a thirteen-year-old girl (the victim) at her home. They had had sexual intercourse twice previously, and the victim testified that she consented to sex with defendant on this occasion. The victim also stated that she knew defendant would not have forced her if she had denied his request to have sexual intercourse. Further, the victim stated that she had told defendant that she was fifteen years old.
¶ 3 After the victim told her parents what had happened, defendant was charged in juvenile court with rape of a child. The parties stipulated that defendant was fifteen years old and the victim was thirteen. They further agreed that in lieu of a trial, the court would consider a videotaped interview of the victim and a transcript of that videotape. The court found defendant guilty of rape of a child, a violation of
ANALYSIS
I. Mens Rea
¶ 4 Defendant first argues the State must prove a mens rea of at least recklessness regarding the victim‘s age. The State responds that rape of a child is a strict liability offense and thus it need not prove any mens rea.1
¶ 5 Our review of this question presents an issue of statutory interpretation, which we review for correctness, granting no deference to the trial court‘s ruling. See Evans v. State, 963 P.2d 177, 179 (Utah 1998).
¶ 6 As a preliminary matter, defendant correctly notes that it is a “basic proposition that a person cannot be found guilty of a criminal offense unless he [or she] harbors a requisite criminal state of mind or unless the prohibited act is based on strict liability.” State v. Elton, 680 P.2d 727, 728 (Utah 1984). The rape of a child statute does not specify a mens rea, but rather provides only that “[a] person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14.”
¶ 7 A crime imposes strict liability “if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state.”
¶ 8 It is “a fundamental rule of statutory interpretation . . . that a statute `be looked at in its entirety and in accordance with the purpose which was sought to be accomplished.‘”
¶ 9 Viewing the criminal code as a whole, it is clear that a child under the age of fourteen cannot consent to sexual intercourse. This policy is stated succinctly in section 76-5-406, which provides that “[a]n act of . . . rape of a child . . . is without consent of the victim [when] the victim is younger than 14 years of age.”
¶ 10 Our conclusion that the criminal code‘s treatment of this issue evinces a clear legislative intent to impose strict liability is supported by other statutory provisions. For example, section 76-2-304.5 expressly removed mistake as to age as a defense to rape of a child. See
¶ 11 Accordingly, we hold that section 76-5-402.1, when considered as part of our criminal code as a whole, clearly evinces a legislative intent to impose strict liability on any person having sexual intercourse with a child under the age of fourteen.
II. Shondel Issues
¶ 12 Defendant next contends the charges against him should be reduced to fornication under State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969). In essence, defendant argues it would be unfair to charge him with rape of a child, a felony, when his behavior could also be described as fornication under
¶ 13 We review the trial court‘s legal conclusion that the Shondel doctrine does not apply to this case “under a correction-of-error standard, according no particular deference to the trial court‘s ruling.” State v. Vogt, 824 P.2d 455, 456 (Utah Ct.App.1991).
¶ 14 We agree with the trial court that the Shondel doctrine does not save defendant in this case. The question under Shondel is “`“whether the . . . statutes at issue proscribe exactly the same conduct, i.e., do they contain the same elements?“‘” State v. Fisher, 972 P.2d 90, 98, 359 Utah Adv. Rep. 12, 17 (Utah Ct.App.1998) (quoting State v. Kent, 945 P.2d 145, 147 (Utah Ct. App.1997) (quoting State v. Gomez, 722 P.2d 747, 749 (Utah 1986))). If the two statutes have the same elements, the accused must be given the benefit of the lesser charge. See id. However, if the elements of the crimes are not the same, the accused may be charged with the crime carrying the greater penalty, “even if the defendant could have been charged with the crime carrying the less severe sentence, so long as there is a rational basis for the legislative classification.” Kent, 945 P.2d at 147.
¶ 15 Here, Shondel does not apply because the statutes do not overlap. Section 76-5-402.1 (rape of a child) provides that “[a] person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14.”
III. Vagueness
¶ 16 Finally, Defendant contends that section 76-5-402.1 is unconstitutionally vague, asserting that: (1) he “had no notice that his conduct could amount to rape of a child, when it was clearly proscribed by the fornication statute,” and (2) the prosecutor should not have been able to choose whether Defendant‘s conduct should be prosecuted as rape of a child or as fornication.
¶ 17 Defendant‘s assertions present a question of law, which we review for correctness. See Board of Comm‘rs of the Utah State Bar v. Petersen, 937 P.2d 1263, 1266 (Utah 1997). “A statute is presumed constitutional, and `we resolve any reasonable doubts in favor of constitutionality.‘” Id. at 1267 (quoting Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993)).
¶ 18 A law is void for vagueness if it “`either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.‘” United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)); accord Zissi v. State Tax Comm‘n, 842 P.2d 848, 854 (Utah 1992). “We apply this test in light of the fact that exactitude of language is seldom possible. Consequently, we will not invalidate a statute for vagueness if any sensible, practical effect can be given to the contested statutory terms.” Zissi, 842 P.2d at 854.
¶ 19 Here, it is difficult to imagine any possible ambiguity in the statute: “A person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14.”
¶ 20 Defendant does not explain how the words of the statute are so unclear as to cause him to be uncertain as to their meaning. Rather, defendant‘s vagueness argument amounts to a fairness argument: he contends he should not be convicted of a felony when the victim in this case consented to sexual intercourse, and that what happened between the two is more properly described as fornication. This argument was well put by the court in Elton when it stated that not requiring the State to prove a mens rea for the age element, and not allowing the defense of mistake of fact as to the victim‘s age,3 might
subject an honestly misled party, whether adult or fellow teenager, to criminal liability brought about by a sophisticated youth who seeks to abuse the criminal law for his or her own sensual indulgences or for even more insidious purposes, such as blackmail or an attempt to avoid community or familial condemnation by denying that he or she enticed another to participate in the sexual act.
State v. Elton, 680 P.2d 727, 732 (Utah 1984). In this case, there is no suggestion that the victim did not consent — and in fact, she repeatedly asserted that she had consented and did not want charges pressed against defendant.
¶ 21 Nonetheless, we are all presumed to know the criminal law, see Elton, 680 P.2d at 730, and our legislature has indicated unequivocally that sexual intercourse with a child under the age of fourteen is prohibited, even if the perpetrator was mistaken as to the victim‘s age. See
¶ 22 As to defendant‘s argument that section 76-5-402.1 is unconstitutionally vague because the prosecutor was able to choose which crime with which to charge defendant, we note that a prosecutor‘s “decision [of] what charge to file . . . generally rests entirely in his [or her] discretion.” State v. Bell, 785 P.2d 390, 403 (Utah 1989) (discussing prosecutorial discretion at length). We see no reason why the prosecutor‘s discretion renders section 76-5-402.1 unconstitutionally vague.
¶ 23 Affirmed.
¶ 24 I Concur: RUSSELL W. BENCH, Judge.
¶ 25 I Concur in Parts II and III, and Concur in the Result in Part I: JUDITH M. BILLINGS, Judge.