State v. Bryant

BOURCIER, Justice,

with whom LEDERBERG, Justice, joins,

concurring in part and dissenting in part.

I join in the opinion of the court with regard to its conclusion that G.L.1956 (1981 Reenactment) § 11-37-1(8), as amended by P.L.1986, ch. 191, § 1, by its specific definition of the nature of sexual penetration necessary to constitute first-degree child molestation sexual assault, excludes the conduct engaged in by the defendant in this ease.

I agree with the majority’s recognition of our longstanding judicial inability, no matter how abhorrent the offense involved, to supplement or to amend by judicial interpretation the clear and unambiguous language in § 11-37-1(8) as enacted by the General Assembly. State v. Young, 519 A.2d 587, 588 (R.I.1987); State v. Calise, 478 A.2d 198, 201 (R.I.1984); State v. Caprio, 477 A.2d 67, 71 (R.I.1984). It is precisely for that reason, however, that I respectfully dissent from that part of the majority’s opinion in which it reaffirms this court’s previous holding in State v. Griffith, 660 A.2d 704 (R.I.1995).

In Griffith , this court did by its liberal construction of a criminal statute actually supplement and amend the § 11-37-1(8) it now finds here to be both clear and unambiguous. The court did there what in this case it said could not be done. The court in Griffith read into the § 11-37-1(8) definition of the term “sexual penetration” an addition-

al nonstatutory element for first-degree child molestation sexual assault when it read into that statute the obligation of the state to prove beyond a reasonable doubt that the accused’s sexual penetration had to be for the express purpose of his sexual arousal or gratification.

Our first-degree sexual assault statutes 1 are in reality nothing more than the embodiment of the elements of common law rape, which in fact had been incorporated into legislation in our former rape statute, G.L. 1956 (1969 Reenactment) § 11-37-1. State v. Golden, 430 A.2d 433, 435 (R.I.1981). This court acknowledged that fact in State v. Babbitt, 457 A.2d 1049, 1054 (R.I.1983), when the late Justice Kelleher, writing for the court, said:

“Although we have said that the new law changed the statutory framework of sexual offenses, State v. Malouin, R.I., 433 A.2d 176, 177 (1981), it is quite obvious that the common-law crime of rape was embodied in the new statute. A parallel reading of the two statutes clearly indicates that every element needed to prove a violation under the old statute for rape is also needed to prove first-degree sexual assault under the new statute. The new statute merely expands the meaning of sexual penetration by force to include, in addition to sexual intercourse, the intrusion of any part of a person’s body into the genital or anal openings of another person’s body. Section 11-37-1.”

Again, in State v. McDonald, 602 A.2d 923, 926 (R.I.1992), we said,

“We believe that the only reasonable interpretation of this statutory scheme is to attribute to the Legislature the intent to substitute for the word ‘rape’ that crime which was later defined as first-degree sexual assault, not any of the lesser degrees that describe differing, and in some instances, less serious, offenses.”

At common law, the crime of rape never required proof that the carnal knowledge or the penetration necessary to constitute the crime was for the purpose of sexual arousal or gratification. 3 Wharton’s Criminal Law, *785 §§ 283-298 (14th ed. Torda 1980). The General Assembly, when it enacted our comprehensive sexual assault statute, specifically defined what it intended and meant for “sexual penetration” to mean within the framework of the first-degree sexual assaults prohibited therein. Section 11-37-1(8). The General Assembly’s definition of the term “sexual penetration” is both clear and unambiguous and must accordingly be strictly construed as the court’s majority does today in this case. I am hard-pressed, however, to find permissible inference from the wording of § 11-37-1(8) that enables the majority to reaffirm Griffith . I find nothing in § 11-37-1(8) that indicates any intention on the part of the General Assembly to make any alteration in the common law definition of rape as that crime was known at common law, or in our former rape statute § 11-37-1 prior to 1979, 2 so as to include an element of sexual arousal and gratification on the part of the perpetrator and, additionally, to impose upon the state the burden of proving that intended state of mind to a jury. Such an inference or assumption from the language used by the General Assembly violates what I believe to be our longstanding rule of statutory construction as pertains to altering the common law. Bloomfield v. Brown, 67 R.I. 452, 458 , 25 A.2d 354, 357 (1942). Apparently, this court believed in 1989, as I do now, that first-degree child molestation sexual assault did not include any obligation on the part of the state to prove to a jury beyond a reasonable doubt that the accused, in sexually penetrating the four-year-old victim there, was doing so for his own personal sexual arousal and gratification. State v. Girouard, 561 A.2d 882, 889 (R.I.1989). In Girouard , Justice Murray correctly noted:

“There are two essential elements to first degree child molestation sexual assault. First, the defendant must have engaged in sexual penetration of the victim. Second, the victim was age thirteen or younger.” Id.

I conclude from the clear and unambiguous statutory language contained in § 11-37-2 defining first-degree sexual assault and in § 11-37-8.1 defining first-degree child molestation sexual assault that there is absolutely no requirement that the sexual penetration prohibited therein must be for the sexual arousal or gratification of the perpetrator, except for the specific occasion during which the accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation. The statute states that conclusion both clearly and distinctly. Section 11-37-2(4).

In all other statutory instances of first-degree sexual assault, the statutes focus upon prohibiting the act and punishing for the wrong and the harm inflicted upon the victim as the result of the unlawful sexual penetration by the perpetrator. That legislative focus is not dependent upon the question of whether the perpetrator at the time of the penetration was sufficiently aroused and gratified. Penetration, not gratification, composes the basic element in first-degree sexual assault. The perpetrator of such crimes should not, in my opinion, be the beneficiary of any judicially implied protection from prosecution based upon sexual arousal and gratification considerations that have been specifically and clearly omitted from the wording of Section 11-37-1(8) by the General Assembly.

As I review our sexual assault statutes, I find therein that the only instance in which the sexual arousal and gratification factor becomes an element of any particular sexual contact assault crime is for those criminal actions that constitute second-degree sexual assault. Section 11-37-4(3). All those second-degree sexual assaults, however, specifically involve only unlawful sexual contact and not sexual penetration. State v. Messa, 594 A.2d 882, 884 (R.I.1991). 3

I believe that when the General Assembly undertook to enact chapter 37 of title 11 and to provide for its comprehensive prohibition of sexual assault crimes in this state, it intended and expected that its legislative language would be interpreted in light of, and *786 with specific reference to, the definition of its words and phrases as found in § 11-37-1.

I read § 11-37-1(8) differently than as was done in State v. Griffith, and differently than does the majority today in reaffirming Griffith. State v. Neary, 122 R.I. 26, 31-32 , 404 A.2d 65, 68-69 (1979).

For the above reasons, I respectfully dissent from that portion of the majority’s opinion wherein State v. Griffith is reaffirmed.

In all other aspects of the majority’s opinion, I concur and join therein.

. General Laws 1956 (1994 Reenactment) §§ 11-37-2 and H-37-8.1.

. Public Laws 1979, ch. 302.

. A.L.I. Model Penal Code part II § 213.4 (Proposed Official Draft 1962).