*1 v. STATE ANTHONY (2000)] N.C. 611 [351 judiсial Nowell, lished standards of conduct.” 293 N.C. at at 257. S.E.2d respondent unquestionably of conduct warrants censure.
Respondent overstepped authority, engaged misconduct, his in judiciary brought disrepute to the our of State. We will not condone deserving this conduct. It is our of harshest criticism. light of the foregoing, respondent’s that conclude ac-
tions constitute conduct in 2A, 3A(1), violation Canons and 3A(4) of the North Carolina Therefore, pur- Code Judicial Conduct. suant N.C.G.S. 7A-376 §§ and 7A-377and Rule 3 of the Rules for Supreme Court Review of Recommendations of the Judicial Commission, Standards respondent, it is ordered Craig that B. Brown, hereby, be and he is censured willful misconduct and con- prejudicial justice duct to the judi- administration of brings disrepute. cial office into
Done Conference, day Order of the Court the 4th May,2000.
Freeman, J. For the Court STATE OF NORTH CAROLINA ALLEN TERRELL ANTHONY
No. 342PA99 May (Filed 2000) Rape— statutory not a defense — consent
Statutory 14-27.7A(b) construction N.C.G.S. § reveals that consent is not a defense to a intercourse or a thirteen, sexual act with a fourteen, who is or fifteen by old defendant who is more than four but less than six years older than the victim designation because: of mar- riage implicit rejection in this single statute as the is an of all other defenses under the doctrine of inclusio unius est alterius; (2) exclusio when viewed development the context of the historical of this area of is to aged thirteen, children fourteen, and fifteen THE SUPREME COURT IN *2 in identified difference acts; (3) from sexual element victim as an essential and the age between the defendant legislative that sex- crime, a decision reflecting legitimate more severe with children deserve ual intercourse or sexual acts a greater on differ- punishment younger if victim is based defendant; (4) the and the older in between ence existing an statute did to аmend not chose fact the depart from well-established it intended to not mean that does a a precedent and consent as defense to allow statutory rape statute; the use of the term “statu- the new presumes legisla- tory rape” legislative in title of the act meaning impart well-understood intended that term’s ture incapable giving lеgally committed a victim offense incapacity. because of or other to sexual intercourse dissenting. Justice Wainwright dissenting opinion. joins Justice Orr a discretionary pursuant to 7A-31of unani- On review App. 573, Appeals, 133N.C. mous decision the Court by 25 March 1998 finding judgment in a entered (1999), no error County. Court, Heard in R, J., Superior in Davie (Lester Jr.), Martin February Court 2000. Supreme General, by Oxley, L. Easley, Attorney F. Elizabeth Michael Attorney General, the State. Assistant for Appellate Ray Hunter, Defender, Bobbi Jo Jr., Malcolm Appellate Defender, defendant-appellant. Markert, Assistant for FRYE,Chief Justice. in this case is construction of
The sole issue provides: 14-27.7A(b), which engages felony C if the defendant guilty A is of Class defendant person who act with another in intercourse or defendant is more than four but 13, 14, or 15 old and the person, except when the years older than the less than six lawfully person. married to the defendant question raised defendant’s 14-27.7A(b) (1999). The N.C.G.S. § discretionary permits a is whether the statute petition review that it does not. of consent. We conclude dispute The relevant faсts are in not and need not be elaborated great in Defendant, detail. aged twenty, spent the evening of 6 January victim, 1997with the aged fourteen, and two other teenagers. approximately At p.m., 11:00 began driving defendant his three com- panions home. dropped Defendant first off the other teenagers. At some time between p.m., 11:15and 11:45 while defendant and the vic- tim were car, alone defendant drove the car off the main road engaged in sexual intercourse with the victim the front seat. Defendant then drove the victim home.
The victim’s mother County took her to the Davie Hospital emer- gency room, where she was early examined in the morning hours of January hospital 1997.The victim personnel told that she had been *3 raped. physician The examining noted that the victim’s condition was consistent with sexual intercourse. When law enforcement officers hospital, arrived at the the victim told them that defendant had forced himself on her.
Later that morning, defendant was arrested on a warrant charg- ing him rape. with second-degree gave Defеndant a statement to law enforcement officers in which he having admitted sex the victim but contended that it was consensual. May
On 27 1997, defendant was charge indicted on a of specifically 14-27.7A(b), that he unlawfully, willfully feloniously and did engage inter- course with victim], years of 14 age. of At the time [the offense, of the the defendant was more than four but less than six years victim, contrary older than the to the form of the statute in provided such case made and peace and the dignity and of the State.
Defendant jury was tried before a at the March 1998 Criminal Superior Session Court, of County. Davie At the close all of the evi- dence, prosecutor requested the that the trial court give an additional instruction that “consent is not a statutory defense to the of rape.” agreed and, The trial court jury after instructing as to the elements of charged offense, jury instructed the as follows:
I you also instruct that the statutory forbidden conduct under this rape charge is the act Any of intercourse itself. force used in the apparent act or lack of consent of the child or not are not essen- tial elements. This statutory rape is so because this law was designed to children. IN THE COURT SUPREME
STATE v. ANTHONY statutory rape of a jury a verdict “of guilty The returned of was at the of the offense and the defendant who was time court less than six older.” The trial sen- more than four but and a maximum fifty-eight to a minimum of months’ tenced defendant seventy-nine imprisonment. Appeals The Court of found months’ error in defendant’s trial. no petition single presented Court defendant’s issue to this to a discretionary charged consent is defense review whether and, thus, trial court’s 14-27.7A(b) whether the
violation N.C.G.S. plain was Section 14-27.7A enacted instruction constituted error. prior interpreted our and, case, the instant had not been to therefore, presents appellate respect, In this case issue courts. impression. However, his- first the extent has statutory rape torically sex offenses and the defined ample interpretation has conducted review those Court statutes, today depart from announced does not decision jurisprudence of established thе state. begin by examining language of N.C.G.S.
We statutory construction, primary 14-27.7A(b).“In matters of our task legislature, legislative intent, is to ensure that the of the accomplished. from Legislative purpose is first ascertained Supply Co. Durham v. plain words of the statute.” Electric Swain Co., (citation 294 (1991) omit- Elec. N.C. case, unambigu- statute is ted). In this clear *4 prohibited. prohibits vaginal as to the The statute inter- ous conduct thirteen, fourteen, a or or acts with fifteen course by years who than less than a defendant is “more four but six years 14-27.7A(b). older.” N.C.G.S. § however, defined, unambiguously
While crime is whether expressly is is or not a defense to the crime not addressed consent 14-27.7A(b). contends language of N.C.G.S. Defendant specifically prohibited that, legislature because have con- could not, leg- a this section and did sent as a defense to under However, a must intended to be defense. islature have identify marriage as a in both specifically did defense sub- dispositive, 14-27.7A.While not (a) (b) and of N.C.G.S. § sections (“The inclusio est exclusio alterius inclu- under the doctrine unius Dictionary one is of another.” Black’s Law sion of the exclusion single implicit is an designation ed. of this (6th 1990)), rejection of all others.
IN THE COURT SUPREME statute, spirit In addition to the of a we also look to “the accomplish” discerning of the and what the act seeks to when act[] Taylor Taylor, legislative intent. case, analysis development In an of the of North 14-27.7A,
Carolina’s law shows that the new N.C.G.S. § sрirit dealing embodies the and of earlier statutes with the subject. general same early
As as North Carolina had codified the crime of as follows:
Any person, carnally any female, who shall ravish and know years age more, will, of ten or her against force unlawfully carnally any who shall and know and abuse female age years, adjudged guilty child under the tеn shall be felony, .... and shall suffer death (emphasis Rev. added). describing origin Code ch. “statutory rape” law, Johnston, of our state’s the Court in State v. N.C. (1877), noted:
Rape forcibly is the carnal a knowledge against female her will. age altogether. This definition leaves out the elements of obscurity why And it seems to be left in some how ele- Probably way; ment came to be considered. it was in this there age were instances where children below the of discretion were yield, knowledge enticed to without a full of the nature of the act consequences; therefore, necessary and of the it became age presumed, under which it should be not that the act fix consummated, given. could not be but that cоnsent could not be provided, And so it came to be that the consummation of the act upon age, female under ten with or without her con- sent, upon shall the same if be as consummated female over ten will. without her consent or her (citations omitted) (emphasis added). Id. at 210 The presumed later raised to twelve the under which it was that con- givеn. (Supp. 1977) (repealed sent could not be N.C.G.S. 14-21 See 1979). present-day line of successor to this statutes N.C.G.S. *5 14-27.2(a)(l), provides: which § rape person
(a) guilty degree A in the first if the engages intercourse: COURT THE SUPREME IN
616 v. ANTHONY STATE 13 who is a child under With a victim (1) four and is at least 12 is at least the defendant years older than victim[.] 14-27.4(a)(l) N.C.G.S. § see also 14-27.2(a)(l) (1999); N.C.G.S. § offense). (first-degree sexual consistently that consent of the recognized Court has This рredecessor 14-27.2(a)(l) or its § a defense under N.C.G.S. is not 339, 441, 445, Rose, 323 S.E.2d See, 312 N.C. e.g., State v. statutes. 206, 68, (1967); Temple, 152 S.E.2d 269 N.C. (1984); State v. victim is an essential of the Johnston, N.C. at 210. Where and its 14-27.2(a)(l) rape, § as in N.C.G.S. the crime of element of liability is a strict 14-21, the result N.C.G.S. predecessor § statute defense, and Temple, is no “Consent we said in State v. offense. As 68, 152 269 N.C.at language of the statute.” virtue of thе this is true 14-21,where prosecution § under N.C.G.S. (reviewing S.E.2d at carnally feloniously knowing charged with defendant was years). age of twelve child under the abusing a female protect children under statutory rape law is to of the 629, 295 Weaver,306 N.C. See State v. age from sexual acts. a certain grounds by State v. part on other overruled in (1982), S.E.2d 375 Weaver, Collins, said: statutory requirement under the lack of assault [The] pur- given law, 14-27.2(a)(l), is understandable
rape G.S. first-degree provision of the pose Unlike the of the statute. adult, the con- applies if victim is an statute forbidden rape provision is the act intercourse duct under the injury course act, any inflicted any itself, force used the child are not apparent aсt, or the lack of statutory rape This is so because elements. essential under designed to children 14-27.2(a)(1), was G.S. acts. twelve from omitted) (empha- (citations S.E.2d at 380
Weaver, N.C.at 14-27.2(a)(l)). N.C.G.S.§ version of added) (explaining an earlier sis created N.C.G.S. contends that because Defendant N.C.G.S. amending than separate rather as a 14-27.7A § differ- to be construed the two statutes 14-27.2(a)(l), it intended 14-27.2(a)(l) interpreting ently prior case law and that disagree. 14-27.7A(b).We be used to construe should not *6 IN THE SUPREME COURT 617 v. ANTHONY
STATE
(2000)]
N.C. 611
[351
purpose
14-27.7A,by
We conclude that the
N.C.G.S.
its
§
develop-
and when
historical
viewed
context of the
aged thirteen,
of this area of
is to
ment
children
four-
years
teen, and fifteen
from sexual
would
old
acts. It
undermine this
thirteen-, fourteen-,
tо allow a
to claim
defendant
that the
fifteen-year-old
very
victim
to
that the
consented
acts
statute is
prevent.
designed to
Court will
This
avoid a construction
works
“
impair
object
to ‘defeat or
...
if that can
the statute
reason-
”
ably be
legislative language.’
done without
to the
violence
Electric
Supply Co.,
656,
Hart,
Wealsо note that age, identified the defendant’s specifically in age more the difference defendant between the and the victim, anas essential element of the crime at here. This issue is con- 14-27.2(a)(l), requires sistent which that the § defend- years years “at ... ant be least old and at least older than four 14-27.2(a)(l); 14-27.4(a)(l) § victim.” N.C.G.S. see also N.C.G.S. § (first-degree offense). sеxual a logical N.C.G.S. 14-27.7Ais exten- statutory existing sion sexual offense laws respect, particularly in this when read the statute is as a whole. (a) prohibits vaginal per- Subsection intercourse or sexual acts with a thirteen, fourteen, years son who is or fifteen a defendant who least six punishes is at older than the victim and this offense as felony. B1 a Class The same conduct is forbidden subsection (b) than than where the defendant is more four but less six older punishable felony. than victim but is as a Class C The structure of 14-27.2(a)(l) 14-27.7Ais consistent with N.C.G.S. reflecting a legitimate legislative decision that sexual intercourse or punishment acts with if children deserve more severe the vic- younger greater tim is or based on difference between thе and the older defendant. fact that the did not existing choose to amend an statute does not mean that it intended to precedent depart from and allow consent as a well-established statutory rape defense to a the new statute. “ Finally, may a ‘legislative consider title of an Act as dec- ” object Cobey of the tenor of the Act.’ ex rel.
laration State Simpson, 759, S.E.2d (1992) (quoting 333 N.C. State v. Woolard, 780, 719, (1896)). 119 N.C. 25 S.E. The statute at passed here issue was under the title “An Act to Create Offenses of Statutory Rape Statutory Against Sexual Victims Offense Who Thirteen, Fourteen, June, 1995, Are or Fifteen Years Old.” Act of 19 v. ANTHONY
STATE “statutory rape” term Sess. Laws 565-66.The ch. a vic- committed particularized meaning as offense has because incapable sexual intercourse legally giving tim *7 Browder, 35, 38, N.C. incapacity. See, e.g., State v. 252 age of or other presume the acted 728, legislature that (1960). 112 S.E.2d 730 “[W]e law and its knowledge prior existing full of and construction with 90, at 763. Cobey, 333 at S.E.2d State ex rel. N.C. 423 the courts.” “statutory rape” Act, Therefore, by using the title of term impart that term’s well- presume that the intended to 14-27.7A. meaning § to offenses defined N.C.G.S. understood the policy public arguments We that defendant makes numerous note fifteen-year-old persons why be con- thirteen-, fourteen-, and should acts. meaningful consent capable giving sidered of to legisla- However, arguments properly are more directed to the these statutory construction, this Court is one of ture. sole issue before a foregoing reasons, for we hold that consent is not defense and the the trial 14-27.7A(b).Accordingly, a charge § to of jury to was a correct statement of the and court’s instruction the Appeals. of decision the Court we affirm the of AFFIRMED. dissenting.
Justice Wainwright I respectfully I dissent. This is case of construction. majority instant case is agree the that the statute at issue the with however, mandate unambiguous; clear because there no clear and majority’s I agree from the not with the conclusion that legislature, do the does not include a consent defense. statute “[W]hen judicial is no unambiguous of a is clear and there room statute give its and definite construction and the court must the statute provisions not con- meaning superimposing or limitations without 446, Williams, 442, v. tained within the statute.” State N.C. Johnson, 515, State v. (1976); S.E.2d accord Camp, N.C. (1979); S.E.2d State 754, 756 (1974). 7A, chapter 14, within article other statutes 14-27.2, first-degree language: (1)
included section consent statute, vaginal intercourse with a child under refers to person by against with and years оr another thirteen force 14-27.3, (2) person, (1999); 14-27.2 section § will that second-degree rape statute, refers to with intercourse person by against person another and the will that or with force mentally defective, mentally incapacitated physi- someone who is cally helpless, N.C.G.S. (1999); (3) 14-27.4, 14-27.3 section first- § degree statute, sexual offense engaging refers to in sexual act a child under the person by of thirteen or with another against person, (1999); will that N.C.G.S. 14-27.4 force (4) 14-27.5, section the second-degree sexual offense refers in a engaging person by sexual act with a force mentally will defective, or with someone who is men- tally incapacitated, physically helpless, (1999); N.C.G.S. 14-27.5 14-27.7, section titled “Intercourse and sexual offenses with victims; certain no defense,” explicitly states “[c]onsent not a to a section,” under this N.C.G.S. 14-27.7 *8 contrast, issue, the statute at 14-27.7A, refers intercourse or a act who is thirteen, fourteen, (1999). fifteen old. N.C.G.S. 14-27.7A article, In the other statutes in this the legislature included “by phrase against force will person” of the other “[cjonsent specify Therеfore, is not a defense” to its intention. it is the legislature clear knew how to indicate was consent not a defense if that was its intention. 14-27.7A is neither unclear ambiguous nor as to
whether is a previously defense. It is silent. We have stated Court, persuaded by may that this “even if concerns, the State’s not judgment Assembly.” substitute its for that of the General State Bates, majority While the specific focuses on the inclusion a marriage defense and the “spirit” protect children, of the Act to I legisla- cannot overlook the phrase “by ture’s clear distinction between the use of the force person” the will of the or the specific other inclusion of the not a defense” other statutes “[c]onsent same article. Without a defense, clear mandate that consent is not a majority substituting legislature’s judgment its for the cre- ating a limitation which is not in the statute. joins opinion.
Justice Orr in the dissenting