State v. GalatiState v. Galati
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- Before:
- Morgan
A jury сonvicted Charles Galati (Galati) on one count of attempted rape in the first degree, pursuant to
Galati, 25-years-old, and the victim, 16-years-old, were guests at a “senior class” party. The victim became intoxicated and passed out in the living room. She was taken to a bedroom where she could rest undisturbed. The host and a guest latеr went to the bedroom to check on her condition and discovered Galati attempting .to have sexual intercourse with the unconscious victim. The host called the victim’s father, who arrived and took his unconscious daughter to a hospital where bruises were found on her groin. When the victim awoke the next day, she did not remember
Galati was eventually charged with attempted rape in the first degree under
State concedes error on this issue and acknowledges that the prosecutor and the trial court misconstrued
Rape is an act of sexual penetration accomplished with any person other than the actor’s spouse ...
(3) Where the victim is incapable оf giving consent because of any intoxicating, narcotic or anesthetic agent, or because of hypnosis, administered by or with the privity of the accused[.]
The proseсution and the trial court believed the phrase “administered by or with the privity of the accused” applied only to hypnosis. In orally ruling on Galati’s motion for acquittal, the trial judge stated his belief that a defendant who commits an act of sexual penetration with a person who is incapable of giving consent because of intoxication may be charged with and convicted of first-degree rape, whether or not the defendant, or a person in privity with the defendant, administered the intoxicating agent.
Galati argues and Statе now concedes that the phrase “administered by or with the privity of the accused” relates back as a condition to each agent set out in the Statute which might render a person unable to give consent. As Galati and State interpret the statute, a defendant may not be convicted of first-degree rape, or attempted rape in thе first degree, under
Statutory analysis begins with the language of the statute and absent a clearly expressed legislative intent to the contrary that language must ordinarily be considered conclusive. Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). Courts may not interpret or construe a statute in a manner inconsistent with the plain language employed by the legislature. Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 101 S.Ct. 2239, 68 L.Ed.2d 744 (1981). Judicial interpretation of a statute that failed to acknowledge its plain language would amount to judicial supеrvision of the legislature.
This court has noted that application of the “ejusdem generis” rule to statutory analysis requires that when an enumeration of specific things is followed by а more general phrase, the general phrase applies or refers to things of the same kind as previously enumerated. State v. Fairbanks, 65 S.D. 272, 273 N.W. 188 (1937). A comma separating a modifying clause in а statute from the immediately preceding clause is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one. Lewis v. Annie Creek Mining Co., 74 S.D. 26, 48 N.W.2d 815 (1951).
There is no logical basis for an argument that the legislature sought to make it a crime to rape an intoxicated person, regardless of who administered the intoxiсating agent, but sought to protect defendants who rape a hypnotized person
In 1975, South Dakota’s rape statutes, including
Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator under either of the following circumstances:
Where she is prevented from resisting by any intoxicating, narcotic, оr anaesthetic agent administered by or with the privity of the accused[.]
The 1975 revision also added hypnosis to the list of debilitating agents that might affect a person’s capaсity to give knowledgeable consent.
There is no reason to assume the legislature, by inserting hypnosis, intended to remove the element which required a showing that intoxicating, narcоtic or anesthetic agents must have been administered by or in privity with the accused in order to warrant a conviction under
We regretfully hold that South Dakota’s statutory definition of rape does not protect persons incapable of consenting to an act of sexual penetration because of an intoxicating, narcotic, or anesthetic agent, or because of hypnosis, unless the agent or hypnosis was administered by or with the privity of the accused. We leave it to thе legislature to correct this hiatus. 2
At trial, Galati made a motion for judgment of acquittal;
3
he now appeals from the trial court’s denial of that motion. On appeal, this court’s review of a trial
We hold that the trial court erred in overruling Galati’s motion for acquittal. We reverse the conviction and remand with instructions to enter a judgment of acquittal.
All the Justices concur.
WUEST, Circuit Judge, Acting as a Supreme Court Justice, participating.
Notes
. The elements listed in the South Dakota Criminal Patterned Jury Instruction 3-7-440a require that the victim be rendered incapable of giving consent because of an intoxicating agent administered by or with the privity of the defendant.
. The 1985 South Dakota Legislature amended subsection (3) of
(3) Where the victim is incapable of giving consent because of any intoxicating, narcotiс ... or anesthetic agent, or hypnosis[.]
.After the State presented its evidence, Galati made a motion for judgment of acquittal based on the State’s failure to produce any evidence on an essential element of the charge, specifically, whether Galati or someone in privity with him administered the intoxicating agent to the victim.