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November 27, 2006

Interesting Opinion from Vermont's Supreme Court

State v. Hazelton, __ A.2d __, 2006 WL 33758387 (Vt. Nov. 22, 2006) is quite an interesting case, involving multiple issues and several opinions.  The defendant allegedly raped a ten year old girl.  He was charged with two counts for a single rape under this statute, one count under each of the italicized subsections:

a)  A person who engages in a sexual act with another person and
      (1)  Compels the other person to participate in a sexual act:
          (A)  Without the consent of the other person; o
r
          (B)  By threatening or coercing the other person; or
          (C)  By placing the other person in fear that any
          person will suffer imminent bodily injury; or
                                .  .  .

      (3) The other person is under the age of 16, except where the
      persons are married to each other and the sexual act is
      consensual;
    .  .  .

      shall be imprisoned for not more than 20 years, or fined not more
     than $10,000.00, or both.

The question presented (in addition to an interesting evidentiary question on prior consistent statements, one that required the court to limit its earlier interpretation of that rule) was whether these were, in fact, two different crimes: a defendant can't be charged with two crimes for one act.

The majority held that there was no difference between the two provisions, though admitting that on "cursory review, the two charges against defendant do seem facially different."  By interpreting the statute in light of then-prevailing common law, the court held that (1) the "compel" element was present in both statutes since "no actual force or compulsion is necessary to commit the offense" and so "no greater degree of compulsion is actually required" under the first subsection; (2) consent by a child under 16 was impossible, and so sex with a child was "nonconsensual" and so the requirement of "consent" did not make the two provisions differ.  To reach the latter conclusion -- that consent by a child under 16 was impossible -- the majority relied on the common law rule from England, as adopted by Vermont.  So, what the court was faced with, in its view, was a statute that if read literally allowed consent to be a defense to rape of a child, which interpretation it rejected:  "If the legislature really intends consent to be available as a defense for persons having sexual contact with underage children, and to render underage children capable of consent, it must expressly so declare" in light of the canon that statutes must clearly show they intend to repeal the common law.

The dissent disagreed, and wrote a lengthy opinion that is hard to do justice to in summary.  Boiled down, however, the dissent argued that the starting place was the language of the statute, which did permit consent as a defense, and so the two crimes were different, since one had the element of consent, and the other did not.  There was no reason for the legislature to have clearly intended to repeal the common law, the dissent believeed because the "Legislature has covered 'the entire subject matter' statutorily and the common law is no longer determinative.

Interesting case.

November 27, 2006 in Current Affairs | Permalink

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