State v. Jones

¶1(dissenting).

¶2[¶ 20.] I respectfully dissent. I would affirm because the substantial case law and legislative history interpreting SDCL 22-22-1(4) demonstrates that the Legislature made it a crime to sexually penetrate a victim objectively incapable of giving consent as a result of intoxication regardless of whether a defendant subjectively knew a victim was too intoxicated to consent. By adding this requirement, the Court ignores statutory history and effectively overrules case law analyzing SDCL 22-22-1. By requiring the State to prove that a “defendant knew or reasonably should have known that the complainant’s intoxicated condition rendered her incapable of consenting,”6 the Court imposes its *415own opinion over that of the Legislature. I would hold that Jones’s proposed jury instruction was not a correct statement of the law and the circuit court did not err in refusing to give it.

¶3[¶ 21.] In addressing the issue of a defendant’s knowledge of a victim’s intoxication, the circuit court stated that:

Whether the defendant knew or didn’t know the person was intoxicated is subjective knowledge, I don’t think is relevant or an element to the crime. I think the only issue is whether she was so intoxicated that she wasn’t able to give consent and I think I’ve instructed on that. I think that’s a correct instruction of the law, so I’m not going to submit the additional proposed language....

¶4The Court holds that the circuit court’s conclusion was incorrect. Majority Opinion ¶ 1.

¶5[¶ 22.] Before 1985, SDCL 22-22-1(3) read:

Rape is an act of sexual penetration accomplished with any person other than the actor’s spouse ... [w]here the victim is incapable of giving consent because of any intoxicating, narcotic or anesthetic agent, or because of hypnosis, administered by or with the privity of the accused[.]

¶6SDCL 22-22-1(3) (1984) (amended in 1985). In 1985, the Legislature amended former SDCL 22-22-1(3) by deleting the phrase “administered by or with the privity of the accused.” 1985 S.D. Sess. Laws 359, ch. 179. The majority opinion questions whether the Legislature intended to remove a mens rea requirement when it amended the statute. Majority Opinion ¶ 9. Ultimately the majority opinion con-eludes that because “rape by intoxication is a serious felony and the Legislature has not indicated its clear intent to dispense with mens rea, SDCL 22-22-1(4) must be read to include a knowledge element.” Majority Opinion ¶ 15. I disagree.

¶7[¶ 23.] This Court has consistently stated that “when an amendment is passed, it is presumed the [L]egislature intended to change existing law.” Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 19, 709 N.W.2d 824, 832 (quoting S.D. Subsequent Injury Fund v. Federated Mut. Ins., Inc., 2000 S.D. 11, ¶ 18, 605 N.W.2d 166, 170). It is also presumed that the Legislature “intended to alter the meaning of the statute to comport with the new terms.” Id.(quoting Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.1994)). In comparing the previous version of SDCL 22-22-1(4), then found at SDCL 22-22-1(3), and the current amended version, I would conclude the intent of the Legislature was simply to no longer require that the accused, or someone in privity, administer the intoxicating agent. To infer that the Legislature meant to leave the mens rea requirement is to make an unsupported, policy assumption. Courts are in no position to contemplate policy considerations suggestive of different legislative intent when the Legislature has often amended the statute at issue but left a court’s interpretation of the statute untouched. See, e.g., Microsoft Corp. v. i4i Ltd. P’ship, - U.S. -, 131 S.Ct. 2238, 2252,180 L.Ed.2d 131 (2011). Even if this Court were to look to language that has been removed from a statute by amendment, there is no indication that the language “administered by or with the privity of the accused” equates to knowledge by the accused that a victim is intoxicated to *416the extent that he or she is unable to consent. In other words, to find a knowledge requirement in the current version of the statute, this Court also has to adopt a “knowledge of intoxication” requirement in the former version of the statute.

¶8[¶ 24.] Because it is not appropriate to adopt a knowledge requirement from the former version of the statute, I cannot conclude that such a knowledge requirement is found in the current statute. The language of SDCL 22-22-1(4) is clear, certain, and unambiguous. It simply does not require that a person know that a victim is incapable of giving consent because of an intoxicating agent. “[T]he Court’s only function is to declare the meaning of the statute as clearly expressed.” City of Deadwood v. M.R. Gustafson Family Trust, 2010 S.D. 5, ¶ 8, 777 N.W.2d 628, 632 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611). “A court is not at liberty to read into the statute provisions which the Legislature did not incorporate.” Id.¶ 9 (quoting In re Adams, 329 N.W.2d 882, 884 (S.D.1983)); see also Allegheny Corp., Inc. v. Richardson, Inc., 463 N.W.2d 678, 679 (S.D.1990) (explaining that this Court “will not enlarge a statute beyond its face where the statutory terms are clear.”).

While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent.

¶9Jensen v. Turner Cnty. Bd. of Adjustment, 2007 S.D. 28, ¶ 8, 730 N.W.2d 411, 414 (internal citations omitted). If SDCL 22-22-1(4) should include a knowledge requirement on the part of a defendant, that is a function for the Legislature.

¶10[¶ 25.] Declining to impose a knowledge requirement on SDCL 22-22-1(4) is consistent with our case law interpreting SDCL 22-22-1. State v. Schuster, 502 N.W.2d 565, 568 (S.D.1993); State v. Fulks, 83 S.D. 433, 436-37, 160 N.W.2d 418, 420 (1968), overruled on other grounds by State v. Ree, 331 N.W.2d 557, 560 (S.D.1983). In Schuster, this Court considered whether a perpetrator must know of a victim’s incapacity to consent when “the victim is incapable, because of physical or mental incapacity, of giving consent to such act....”7Schuster, 502 N.W.2d at 568. The 16-year-old victim in Schusteronly had the mental capacity of an eight- or nine-year-old. Id. at 567. We held that “[t]he section of the rape statute pertaining to persons incapable of consent makes no mention of, and thus does not require, knowledge on the part of the perpetrator.” Id. at 568. Like in Schuster, SDCL 22-22-1(4) does not mention, and thus does not require, knowledge on the part of Jones that E.B. was incapable of consenting.

¶11[¶ 26.] This Court has also considered whether a defendant is required to know if a victim is a minor, and therefore incapable of consenting, in order to be convicted of statutory rape. Fulks, 83 S.D. at 436-37, 160 N.W.2d at 420.8 “[I]n a prosecution for alleged statutory rape a defen*417dant’s knowledge of the age of the girl involved is immaterial and his reasonable belief that she is over the age of eighteen years is no defense.” Id. See also State v. Vogel, 315 N.W.2d 324, 326 (S.D.1982) (recognizing the Legislature’s prerogative to create strict liability crimes). Under South Dakota statutes and case law, a defendant is not required to know that a victim is a minor and therefore incapable of consenting to sexual intercourse. Likewise, SDCL 22-22-1(4) does not require that a defendant know a victim is intoxicated and therefore incapable of consenting.

¶12[¶ 27.] This legal conclusion is reinforced by the drafting of the statute. SDCL 22-22-1 provides in part:

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:

(1) If the victim is less than thirteen years of age; or

(2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or

(3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or

(4) If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or

(5) If the victim is thirteen years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the vietim[.]

¶13The requirement of knowledge on the part of the perpetrator is absent in the subsections dealing with minority in subsections (1) and (5), and lack of mental capacity in subsection (3), just the same as intoxication in subsection (4).

¶14[¶ 28.] I agree with the Court that the resolution of this issue is the intent of the Legislature. Fulkswas decided in 1968. Schusterwas decided in 1993. Thus, by 1993 it was clear to the Legislature that this Court interpreted two portions of SDCL 22-22-1 as requiring no knowledge requirement. Thereafter, the Legislature amended SDCL 22-22-1 three times, in 1994, 2000, and the criminal code revision in 2005. Clearly the concept of requiring knowledge was well known to the Legislature as it had amended this and other statutes before and only had to look at such states as Iowa, Nebraska, and California for examples.9 Yet the Legislature *418three times passed up opportunities to join this group of states and add a knowledge requirement to SDCL 22-22-1. This is a clear indication of the intent of our Legislature. It opted for a policy decision that the devastating consequences of rape to a victim are the same and deserve the same protection whether the victim was too intoxicated, too young, or mentally incapacitated to consent or was victimized by any other means set forth in SDCL 22-22-1. It is not this Court’s position to change any legitimate policy chosen by the Legislature.

¶15[¶29.] The majority opinion cites to two South Dakota cases where this Court has read a knowledge requirement into a statute—State v. Stone, 467 N.W.2d 905 (S.D.1991) and State v. Barr, 90 S.D. 9, 237 N.W.2d 888 (1976). Majority Opinion ¶ 11. In Stone, this Court concluded that Barrwas controlling precedent. Stone, 467 N.W.2d at 906. We therefore examine why in Barrthis Court concluded knowledge was an unwritten element of the offense of unlawful distribution of a controlled substance. This Court stated three reasons. Barr, 237 N.W.2d at 890-92. First, courts in other jurisdictions had held that notwithstanding the absence of the word “knowingly” in statutes prohibiting the unlawful possession and sale of drugs and controlled substances, knowledge was an element of the offense. Id. at 891. We have not been provided with such authority in this case. Second, we noted in Barrthat lesser statutory drug offenses contained an element of knowledge, which would essentially require a lesser burden of proof on the State in cases having a higher maximum penalty. Id.In this case, we find it more appropriate to compare the rape proscribed in SDCL 22-22-1(4) with other means of rape. In so doing, we note that violation of SDCL 22-22-1(4) carries the same penalty as violation of SDCL 22-22-1(3), which is rape of a person incapable of consenting because of physical or mental incapacity. Finally, in Barr, we read knowledge into the drug distribution statute because the State did not contend that knowledge was not an element of the offense. Id. at 892. The State has not taken a similar position in this case; instead, it argues that the defendant’s knowledge is not an element of SDCL 22-22-1(4). I agree and decline to follow the reasoning in this case that we used in Barrand Stone.

¶16[¶ 30.] The majority opinion also cites a case from the United States Supreme Court as support. Majority Opinion ¶ 10 (citing Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). Staplesis distinguishable because it involved violating a statute regulating the registration of statutorily defined firearms, rather than a serious crime committed against the person of a victim. Staples, 511 U.S. at 602, 114 S.Ct. at 1795 (requiring that the prosecution prove a defendant knew the weapon he possessed was not properly registered). The Court emphasized that “our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with regulated items.” Id. at 619, 114 S.Ct. at *4191804. Furthermore, the Court emphasized that “[n]either this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.” Id. at 619-20, 114 S.Ct. at 1804. (quoting Morissette v. United States, 842 U.S. 246, 260, 72 S.Ct. 240, 248, 96 L.Ed. 288 (1952)). The Supreme Court declined to do so in Staples, and I would do the same today. Id.

¶17[¶ 31.] The Court also relies on case law where we have stated that “[w]hether criminal intent or guilty knowledge is an essential element of a statutory offense is to he determined by the language of the act in connection with its manifest purpose and design.” Majority Opinion ¶ 11 (quoting State v. Nagel, 279 N.W.2d 911, 915 (S.D.1979)). The Court fails to acknowledge that the manifest purpose and design of SDCL 22-22-1, at its most basic level, is to protect rape victims who did not consent. Any other “manifest purpose or design” is based on conjecture of what this Court supposed the Legislature said instead of what it actually said. Furthermore, applying a knowledge requirement to the statute is adding an additional element that the Legislature does not require the State to prove in a prosecution.

¶18[¶ 32.] Finally, the Court states that while we interpret our statutes by reading the plain meaning of the words they contain, “we have always reserved a caveat: we will not read statutes literally, if they lead to an ‘absurd or unreasonable result.’ ” Majority Opinion ¶ 12 (citing State v. Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180). I fail to see how the plain meaning of this statute reaches an absurd or unreasonable result. It is not absurd or unreasonable for the Legislature to choose to protect rape victims over their perpetrators. Neither is the result absurd or unreasonable when read in the context of the entire statute and this Court’s case law analyzing SDCL 22-22-1.

¶19[¶33.] In conclusion, this Court has, until today, consistently declined to read additional requirements into a statute and Jones presents no compelling argument for abandoning this principle today. SDCL 22-22-1(4) does not require that a defendant know a victim is intoxicated and therefore unable to consent to sexual intercourse. Consequently, the circuit court did not abuse its discretion in refusing Jones’s proposed jury instruction. I would affirm.

¶20[¶ 34.] The Court declines to address Jones’s other argument on appeal that there was not sufficient evidence to convict him. Majority Opinion ¶ 6 n. 2. I would affirm on that issue based on the ample evidence presented at trial to sustain his convictions.

¶27(dissenting).

¶28[¶ 35.] Were we considering this issue on a clean slate without legislative and judicial history, I would join the opinion of the Court. But as Chief Justice Gilbert-son explains,10 there is substantial legislative history and case law involving SDCL 22-22-1. That history and case law demonstrate that the Legislature intended to make it a crime to sexually penetrate a victim objectively incapable11 of giving *420consent as a result of intoxication even if the defendant did not have knowledge of the victim’s incapacity.

¶29[¶ 36.] “[I]t is widely understood that the legislature may forbid the doing of an act and make its commission a crime without regard to the intent or knowledge of the doer.” State v. Nagel, 279 N.W.2d 911, 915 (S.D.1979). “[T]he definition of the elements of a criminal offense is entrusted to the legislature, particularly ... crimes [that] are solely creatures of statute.” Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 1796, 128 L.Ed.2d 608 (1994). “Thus, ... determining the mental state required for commission of a [statutory] crime requires ‘construction of the statute and ... inference of the intent of [the legislature].’ ” Id. at 605, 114 S.Ct. at 1796-97 (quoting United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922)).

¶30[¶ 37.] In this case, Chief Justice Gil-bertson explains how this Court has twice interpreted analogous language in other subsections of SDCL 22-22-1 to not require knowledge of incapacity with respect to designated classes of individuals with impairments. See Chief Justice Gilbert-son’s dissent ¶¶ 25-26.12 In both cases this Court concluded that because the Legislature did not include mens rea language in the statute, the Legislature did not intend the statute to require knowledge of the victim’s incapacity. See id.The legislative decision was driven by the fact that the victims in the designated classes have diminished capacity, thus justifying the need for more protection than for those who can capably make informed decisions regarding consent to sexual penetration.

¶31[¶ 38.] Today the Court changes its view of the Legislature’s intent regarding objectively incapacitated victims. The Court reads a knowledge element into SDCL 22-22-1(4) (victims incapacitated by alcohol) but not subsection (3) (victims incapacitated by other mental impairments). The Court does so because, in its view, in the latter case involving “mental incapacity,” the debilitating “conditionf] [is] readily apparent or reasonably discoverable.” Supra ¶ 14. I disagree. Human experience reflects that the degree of impairment resulting from mental disability and alcohol consumption falls along a broad continuum, and the actual state of incapacity is often not readily apparent to the lay observer. Thus, this is the type of case in which “the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide ‘that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.’ ” See Balint, 258 U.S. at 252, 42 S.Ct. at 302 (quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 666, 54 L.Ed. 930 (1910)). The majority concludes otherwise, noting that this is a serious felony, supra ¶ 15, and that offenses requiring no *421mens rea are generally disfavored, supra ¶ 10 (quoting Staples, 511 U.S. at 606, 114 S.Ct. at 1797). But the majority overlooks the fact that the Supreme Court has specifically noted “sex offenses, such as rape” are one of the “few exceptions” to the common-law requirement of a culpable state of mind. Morissette v. United States, 342 U.S. 246, 251 & n. 8, 72 S.Ct. 240, 244 & n. 8, 96 L.Ed. 288 (1952).

¶32[¶39.] Moreover, as Chief Justice Gil-bertson chronicles, the Legislature amended SDCL 22-22-1 on three occasions after we twice held that similar language in parallel subsections of the same statute do not include a mens rea element. See Chief Justice Gilbertson’s dissent ¶ 28. One legislative revision was a part of a comprehensive rewrite of the entire criminal code by eminent lawyers and legislators. See 2005 S.D. Sess. Laws ch. 120, § 390. Notwithstanding this comprehensive review of our criminal statutes, the Legislature left untouched this Court’s prior interpretations that there is no knowledge element in language like that found in SDCL 22-22-1(4). Under such circumstances, courts are in “no position” to consider policy arguments suggestive of different legislative intent because the legislature has, for a substantial period of time, amended the statute at issue but left a court’s “interpretation” of the statute “untouched.” Microsoft Corp. v. i4i Ltd. P’ship, — U.S. —, 131 S.Ct. 2238, 2252, 180 L.Ed.2d 131 (2011).

¶33[¶ 40.] In light of SDCL 22-22-1’s judicial and legislative history, I am persuaded that the Legislature’s continued use of analogous language we have twice interpreted reflects no intent to change our interpretation. The majority’s contrary holding is based on its view that the Legislature has not expressed “clear intent to dispense with mens rea.” See supra ¶ 15. But this incorrectly presupposes that SDCL 22-22-1(4) previously contained a knowledge element. It did not.13 SDCL 22-22-1(4) has never included language requiring “knowledge,” the word defined in SDCL 22-l-2(l)(e),14 to describe the mens rea element when a knowledge requirement is intended in any criminal statute found in SDCL Title 22. Therefore, I cannot agree with the Court that the Legislature’s decision not to include the customarily used and legislatively prescribed language for including a knowledge element in a criminal statute, reflects legisla*422tive intent to include that knowledge element in SDCL 22-22-1(4).

¶34[¶ 41.] Today’s Court is also mistaken when it states that we will become the only court to hold that a jury “must disregard” the defendant’s state of mind (knowledge of incapacity) in cases like Jones’s simply because the victim “establishes that she drank too much to have given her consent.” See supra ¶ 13. Judge Jensen correctly explained that under the wording of the statute, “the question is [an] objective [one:] was [the victim] so intoxicated that she couldn’t give consent....” He therefore instructed that the jury would have to find that the victim was objectively incapable of giving consent by considering “all the circumstances.” See supra n. 11. This required the jury’s consideration of reasonable, good-faith perceptions of all witnesses to the victim’s state of intoxication, including that of the defendant. Thus, the jury could not disregard Jones’s testimony that he did not know the victim was intoxicated or incapable of consent when he had sex with her. Indeed, Jones raised this point in his testimony, in his examination of his witnesses, in his cross-examination of the State’s witnesses, and in his closing argument.

¶35[¶ 42.] Finally, to affirm the circuit court, “we [would not be] marking] South Dakota as the only jurisdiction to hold” that a knowledge element is not included in the offense of rape of a victim who is objectively incapable of consent due to incapacitation by alcohol. Cf. supra ¶ 13 (emphasis added). The Court references four other states. But in each of those states the legislature enacted a statute explicitly requiring that the perpetrator know or reasonably should know of the victim’s inability to consent. See supra n. 5 (citing statutes from four other states). Therefore, this is not a matter in which we must issue a holding adopting our view of the wisdom of having a knowledge element in this type of offense. The South Dakota Legislature made that decision when it differentiated SDCL 22-22-1(4) from the statutes adopted in the four states referenced by the majority.

¶36[¶ 43.] For all of the foregoing reasons, I respectfully dissent. Based on our judicial and legislative history, I would apply the plain language interpretation of SDCL 22-22-1(4). And consistent with our two prior cases, I would restate that the plain language we interpret today contains no knowledge element.