In re: M.S. , 171 A.3d 155 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-FS-313
IN RE M.S., APPELLANT.
Appeal from the Superior Court of the
District of Columbia
(DEL-1678-14)
(Hon. Florence Y. Pan, Trial Judge)
(Argued June 1, 2016 Decided October 12, 2017)
Daniel S. Harawa, Public Defender Service, with whom James Klein, Shilpa
S. Satoskar and Samia Fam, Public Defender Service, were on the brief, for
appellant.
John D. Martorana, Assistant Attorney General, with whom Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy
Solicitor General, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge,+ THOMPSON, Associate Judge,
and FERREN,* Senior Judge.
+
Chief Judge Blackburne-Rigsby was an Associate Judge at the time of oral
argument. Her status changed to Chief Judge on March 18, 2017.
*
Senior Judge Warren R. King was on the panel at the time this case was
argued. On November 23, 2016, Judge King retired and Senior Judge John M.
Ferren replaced Judge King as a member of the panel.
2
BLACKBURNE-RIGSBY, Chief Judge: In this appeal, we are asked to
determine whether three general sexual abuse offenses merge into the victim-
specific offense of second-degree child sexual abuse. Appellant M.S., who was
thirteen and fourteen years old during the relevant period, appeals his eight
adjudications of delinquency arising from two instances of sexual contact with his
younger male cousin, R.J. For each of the two sexual contacts, M.S. was
adjudicated delinquent on four counts: second-degree child sexual abuse, D.C.
Code § 22-3009; third-degree sexual abuse, D.C. Code § 22-3004; fourth-degree
sexual abuse, D.C. Code § 22-3005; and misdemeanor sexual abuse, D.C. Code
§ 22-3006.1 He argues that the Double Jeopardy Clause requires merger of his
eight counts of sexual abuse into just two counts of second-degree child sexual
abuse.
Based upon the plain language, structure, and legislative history of the Anti-
Sexual Abuse Act of 1994 (―ASAA‖), as well as our relevant case law, we hold
that the offenses of misdemeanor sexual abuse and fourth-degree sexual abuse
merge with the offense of second-degree child sexual abuse. However, we hold
that the offense of third-degree sexual abuse, which requires proof of force, does
1
Unless otherwise indicated, the D.C. Code citations herein refer to the
2013 Supplement.
3
not merge with second-degree child sexual abuse. Accordingly, we affirm in part
and remand in part for merger consistent with this opinion.
I. Factual Background
This case arises from two instances of sexual contact that appellant, who was
thirteen and fourteen years old at the relevant times, initiated against his cousin,
R.J., who was nine years old. R.J. frequently visited appellant in the spring and
summer of 2014 to play video games. On August 9, 2014, while R.J. was playing
―Minecraft,‖ appellant made oral contact with R.J.‘s genitals through his pants. He
then forced R.J. to lie down, and appellant sat on him to force oral contact with
appellant‘s genitals through his clothing. The activity stopped when R.J.‘s father
called him downstairs to leave. R.J. described the sexual contact to his father
during the drive home, and at some point, it became clear that similar contact
between M.S. and R.J. had occurred before. The trial court credited R.J.‘s
explanation for not reporting sooner: that he did not want to lose access to the
better television and game system at appellant‘s home.
After R.J. described the incident to his father, on August 9, R.J.‘s father
immediately drove back to appellant‘s home and angrily confronted him.
4
Appellant‘s mother was also present and asked appellant more calmly about the
incidents because she wanted to get him help. After initial denials, appellant
admitted to sexual contact with R.J. on August 9, 2014, and on at least one prior
occasion, during that spring or summer, after appellant‘s family bought a ―smart
TV‖ in March 2014.
The trial court found that at least two instances of sexual contact occurred,
that appellant was at least four years older than R.J. at those times, and that
appellant intended to gratify sexual desire through his conduct with R.J.
Significantly, the trial court also found: (1) that, in accordance with the third-
degree sexual abuse charge, appellant had used force by sitting on R.J., (2) that, in
accordance with the fourth-degree sexual abuse charge, appellant had reason to
know that R.J. could not appraise the nature of the conduct, and (3) that, in
accordance with the misdemeanor sexual abuse charge, R.J. did not consent to the
sexual contact. Appellant was adjudicated delinquent on all eight counts (four
counts for each incident) and was sentenced to one year of probation, including
group therapy and ninety hours of community service. This appeal followed.
5
II. Analysis
The Double Jeopardy Clause ―protects against multiple punishments for the
same offense.‖ United States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998)
(citation and internal quotation marks omitted); see also United States v. Mahdi,
598 F.3d 883, 887 (D.C. Cir. 2010) (citation omitted). To determine whether
convictions merge, we apply the default rule articulated in Blockburger v. United
States, 284 U.S. 299, 304 (1932), which states that ―where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact the other does not.‖ See D.C. Code § 23-112
(2012 Repl.); Byrd v. United States, 598 A.2d 386, 389–90 (D.C. 1991) (en banc)
(adopting Blockburger, in light of D.C. Code § 23-112 (1989), over a ―pure fact-
based analysis‖). The Blockburger analysis applies unless the legislature has
clearly indicated a contrary intent with respect to the particular offense at issue.
See Byrd, supra, 598 A.2d at 389; Blackledge v. United States, 871 A.2d 1193,
1196 (D.C. 2005).
6
Appellant argues that merger of his sexual abuse adjudications is required
both under the Blockburger test and as a matter of legislative intent.2 The
government counters that each crime contains a unique element on its face,
precluding merger under Blockburger, and that the legislative history of the ASAA
indicates that all four sexual abuse charges may be brought for the commission of a
single act.
All four of the criminal code provisions under which appellant was charged
were enacted under the ASAA in 1994. See D.C. Council, Report on Bill 10-87
(Sep. 28, 1994). The Council of the District of Columbia (―D.C. Council‖ or
―Council‖) stated that the purpose behind the ASAA was to ―strengthen and reform
the existing laws against rape and sexual abuse in the District of Columbia.‖ Id. at
1. In line with this purpose, the ASAA ―modernize[d] the District‘s antiquated
rape and sexual assault laws‖ by ―creating graded offenses for sexual assaults of
varying [degrees of] severity[.]‖ Id. at 2. In addition to creating graded forms of
sexual abuse, the Council also grouped the sex offenses into different categories.
2
Preliminarily, we observe that the merger protection of the Double
Jeopardy Clause applies equally in juvenile delinquency proceedings and adult
criminal prosecutions. See Breed v. Jones, 421 U.S. 519, 530–31 (1975); see also
In re Z.B., 131 A.3d 351, 354–55 (D.C. 2016) (considering a merger claim in a
juvenile delinquency appeal). Moreover, a juvenile may raise a merger claim
because a delinquency disposition may carry ―penal consequences for an offender
later in life.‖ H.M. v. State, 892 N.E.2d 679, 682 (Ind. Ct. App. 2008).
7
Relevant here, the first category of the ASAA consists of general sexual abuse
offenses, which do not require a specific victim, while the second category of the
ASAA addresses sexual abuse against children3 and minors in particular. See D.C.
Code §§ 22-3002 to 22-3006 (general sexual abuse offenses); 22-3008 to 22-
3010.02 (sexual abuse offenses against children and minors); Davis v. United
States, 873 A.2d 1101, 1104 (D.C. 2005).
Upon reviewing the legislative history of the ASAA, we see no clear
expression of the D.C. Council‘s intent as to whether or not the crimes of the
ASAA should merge. While the Council stated in its Committee Report for the
ASAA that it sought to ―make the laws governing sexually abusive conduct more
inclusive, flexible[,] and reflective of the broad range of abusive conduct which
does in fact occur,‖ Rep. on Bill 10-87 at 1, this expression by the Council does not
indicate whether it intended to allow multiple convictions based upon the same act.
Neither does the Council‘s creation of ―graded offenses for sexual assaults‖ and its
separation of the sexual assault offenses into different categories, indicate whether
the Council intended that each instance of sexual conduct would be prosecuted as
3
Under the ASAA, a ―child‖ is ―a person who has not yet attained the age
of 16 years.‖ D.C. Code § 22-3001 (2012 Repl.).
8
just one corresponding offense even if it satisfies the elements of other ASAA
offenses.4
Furthermore, the D.C. Council has not provided explicit guidance on merger
of offenses under the ASAA, as it has done in other contexts. See, e.g., D.C. Code
§ 22-3203 (a) (2012 Repl.) (providing for multiple convictions for theft, identity
theft, fraud, credit card fraud, unauthorized use of a vehicle, commercial piracy,
and receiving stolen property, but only concurrent sentences). Thus, because the
Council‘s intent on merger of offenses under the ASAA is not clear, we must
analyze each offense at issue under the Blockburger test. See Parker v. United
States, 692 A.2d 913, 916 (D.C. 1997) (quoting Missouri v. Hunter, 459 U.S. 359,
367–68 (1983)) (emphasis in original) (stating that the Blockburger test is applied
to determine merger of offenses unless there is ―a clear indication of contrary
legislative intent‖).
4
The legislative history of the 2006 amendment to the ASAA, enacted as
part of the Omnibus Public Safety Act of 2006, also does not indicate the Council‘s
intent on whether offenses under the ASAA should merge. In the amendment, the
D.C. Council expanded the definition of ―significant relationship‖ with a minor
and created a new crime for ―misdemeanor sexual abuse of a child.‖ D.C. Council,
Report on Bill 16-247, at 11 (Apr. 28, 2006). The Council‘s comment about the
new misdemeanor offense—―It is the Committee‘s intent that prosecutors only
employ [the new misdemeanor sexual abuse of a child] charge when appropriate.‖
— is not particularly helpful even in determining the ―appropriate‖ scope of the
new law. See id. The comment does not indicate whether the Council intended
merger of offenses from the original enactment of the ASAA.
9
A. The Blockburger Test
When applying the Blockburger test, we compare the elements of the
relevant offenses to determine ―whether each provision requires proof of a fact the
other does not.‖ 284 U.S. at 304; see also Byrd, supra, 598 A.2d at 389. Both
parties claim to prevail under the Blockburger analysis by applying the test
differently. The government focuses solely on the language of the elements of
each offense. Appellant instead asks whether it is possible to commit one crime
without committing the other. The latter approach reflects the correct application
of Blockburger. See, e.g., Z.B., supra note 2, 131 A.3d at 355 (―[I]t is not possible
to commit robbery without also committing assault, and assault accordingly
merges as a lesser-included offense‖).
For example, in Tyree v. United States, 629 A.2d 20, 22–23 (D.C. 1993), we
considered whether the crimes of carrying a pistol without a license (―CPWL‖) and
possession of an unregistered firearm (―UF‖) merge. Observing that one could
potentially have a non-pistol firearm that was not properly registered stored within
her own home (thus committing UF without committing CPWL) and that,
conversely, one could carry a registered pistol on the streets without a proper
license (thus committing CPWL without committing UF), we concluded that the
10
crimes did not merge under Blockburger. Id. Thus, the facial comparison of the
elements was supplemented by a practical inquiry into whether it was possible to
commit one offense without at the same time committing the other offense. See
also Snell v. United States, 68 A.3d 689, 694 (D.C. 2013) (reaffirming holding of
Tyree). On the other hand, in Hawkins v. United States, we considered whether a
count of obstruction of justice for influencing truthful testimony should merge with
another count of obstruction for causing or inducing a person to withhold truthful
testimony. 119 A.3d 687, 703 (D.C. 2015), cert. denied sub nom. Verter v. United
States, 136 S. Ct. 1526 (2016). We concluded that the two counts merged because
―telling a lie necessarily includes withholding the truth[,] too, so a person who
‗influences‘ truthful testimony under [D.C. Code § 22-722 (a)(2)(A)] by
instructing a person to lie will violate [D.C. Code § 22-722 (a)(2)(B)] as well.‖ Id.
(emphasis added).
This is not to say that Blockburger precludes multiple convictions for a
single act; it is axiomatic that the same act can give rise to multiple convictions so
long as each crime has a unique element. See, e.g., Richardson v. United States,
116 A.3d 434, 439–40, 439 n.2 (D.C. 2015) (stating that the fact-based merger
inquiry, in which we looked to whether one crime was ―incidental‖ to another to
determine if the offenses merged, had been overruled by Byrd). Nevertheless, ―a
11
lesser offense will merge into a greater offense if guilt of the lesser offense ‗is
necessarily established by proof of the greater offense.‘‖ Ball v. United States, 429
A.2d 1353, 1360 n.13 (D.C. 1981) (quoting Fuller v. United States, 407 F.2d 1199,
1228 (D.C. Cir. 1968) (en banc)). As a result, the Blockburger test examines the
elements of the crimes, see Byrd, supra, 598 A.2d at 390 (asking ―whether each
statutory provision required proof of an element that the other did not‖), with the
purpose of ascertaining whether it is possible to fulfill the elements of one offense
without fulfilling the elements of the other offense. See Norris v. United States,
585 A.2d 1372, 1374 (D.C. 1991). With this understanding of the proper
application of the Blockburger test, we turn now to whether appellant‘s general
sexual abuse counts merge into his two counts of second-degree child sexual
abuse.
B. Application of Blockburger to the ASAA Crimes at Issue
Second-degree child sexual abuse requires proof of three elements: (1) that
the defendant was ―at least 4 years older than [the] child‖ at the time of the offense,
(2) that the defendant ―engage[d] in sexual contact with that child or caus[ed] the
12
child to engage in sexual contact[,]‖5 and (3) that the defendant did so ―with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire.‖ See
D.C. Code §§ 22-3009, -3001 (9); Green v. United States, 948 A.2d 554, 558 (D.C.
2008). The other three offenses at issue, being general sexual abuse offenses, are
not ―victim-specific,‖ so they do not require proof that the sexual contact was with
a child at least four years younger than the defendant.
Blockburger requires us to compare the elements of second-degree child
sexual abuse with the elements of (1) misdemeanor sexual abuse, (2) fourth-degree
sexual abuse, and (3) third-degree sexual abuse, in order to ascertain whether it is
possible to commit the first offense, without committing the last three offenses.
See Appendix A (―Table of Elements of the ASAA Crimes at Issue‖). In doing so,
we also consider whether the traditional presumptions of non-consent (premised on
a child‘s incapacity to consent) and use of force in child sexual abuse prosecutions
were retained by the ASAA. See e.g., Davis, supra, 873 A.2d at 1104–05
(discussing the historical presumptions of force and non-consent for sexual assaults
committed against children).
5
For all relevant charges, ―sexual contact‖ includes the touching of
genitalia through clothing as occurred in this case. D.C. Code § 22-3001 (9).
13
1. Misdemeanor Sexual Abuse
Misdemeanor sexual abuse requires proof of three elements: (1) that the
defendant ―engage[d] in a sexual act or sexual contact with another person[,]‖ (2)
while knowing or having reason to know ―that the act was committed without that
other person‘s permission‖ and (3) ―with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify sexual desire.‖ D.C. Code §§ 22-3006, 22-3001 (9).
The critical question we examine is whether proof that the victim was a child at
least four years younger than the defendant, as required for second-degree child
sexual abuse, triggers a conclusive presumption that the victim did not give
permission.
We have previously addressed the intersection of second-degree child
sexual abuse and misdemeanor sexual abuse, albeit indirectly, in Davis v. United
States. In that case, Davis was convicted of attempted misdemeanor sexual abuse
for engaging in sexual conduct with his eleven-year old daughter, although this
court acknowledged that he could have been convicted of second-degree child
sexual abuse. 873 A.2d at 1103, 1105 n.7. Davis argued on appeal that because §
22-3007 of the ASAA makes the consent defense available for misdemeanor
14
sexual abuse, he should have been permitted to demonstrate as a defense that his
daughter consented to the sexual contact. Id. at 1105.6
We rejected that argument, concluding that § 22-3011 of the ASAA, which
expressly precludes a consent defense for child sexual abuse offenses,
demonstrated the Council‘s intent to ―preserve[] the longstanding rule that a child
is legally incapable of consenting to sexual conduct with an adult.‖ Id. at 1104–05.
We noted that the basis for this historical rule is ―that children cannot consent ‗in a
meaningful way,‘ because they ‗do not understand what is happening to them.‘‖ Id.
at 1105 (quoting Williams v. United States, 756 A.2d 380, 386 (D.C. 2000), and
Guarro v. United States, 237 F.2d 578, 581 (D.C. Cir. 1956)). Furthermore, we
observed from the Council‘s Committee Report on the ASAA that the Council
continued to view ―sexual conduct between adults and children as ‗inherently
coercive due to the age difference between the participants.‘‖ Id. (citing Rep. on
Bill 10-87 at 4.). Accordingly, we held that ―if the complainant in a misdemeanor
sexual abuse (or other general sexual assault) prosecution was a child at the time of
the alleged offense, an adult defendant who is at least four years older than the
6
―Consent by the victim is a defense to a prosecution under §§ 22-3002 to
22-3006 . . . .‖ D.C. Code § 22-3007. In other words, consent is only a defense to
general sexual assault crimes (first-degree sexual abuse down to misdemeanor
sexual abuse), not to victim-specific sexual assault crimes such as second-degree
child sexual abuse.
15
complainant may not assert a ‗consent‘ defense.‖ Id. at 1106.7 Importantly, in
Davis we stated further, ―[b]y the same token, unless he was deceived, the
defendant is charged with knowledge that the sexual act or contact was committed
without the child‘s valid ‗permission‘ within the meaning of D.C. Code
§ 22-3006.‖ Id.
Our holding in Davis makes clear that proof of at least a four-year age gap
between the defendant and a child victim of sexual assault itself constitutes proof
of the second element of misdemeanor sexual abuse: that the sexual contact was
committed without the child‘s valid permission. See D.C. Code § 22-3006. In
such circumstances, the Council has deemed the sexual contact between the
defendant and child as ―inherently coercive.‖ Davis, supra, 873 A.2d at 1105
(internal quotation marks and citation omitted). Therefore, every set of facts
satisfying the elements of second-degree child sexual abuse will also necessarily
satisfy the elements of misdemeanor sexual abuse.8 This result is further supported
7
Although Davis discusses an ―adult defendant‖ and the consent defense,
nothing in that decision or in the text of the ASAA suggests an exception for
juveniles who sexually assault much younger juveniles. We discern no reason (and
the parties have not advanced one here) that Davis would not apply to this case
because appellant is a juvenile.
8
Our conclusion here is not foreclosed by our statement in Sutton v. United
States, 140 A.3d 1198, 1205 (D.C. 2016), that misdemeanor sexual abuse of a child
(continued . . .)
16
by the Council‘s intent that the ASAA remain ―consistent with existing law
governing indecent acts with children,‖ at least where applying the pre-existing
legal presumption that a child cannot consent to sexual contact. 873 A.2d at 1105
(citing Rep. on Bill 10-87 at 4).9 As a result, misdemeanor sexual abuse is a
―lesser-included offense‖ of second-degree child sexual abuse, because one cannot
commit second-degree child sexual abuse without committing misdemeanor sexual
abuse. See Z.B., supra note 2, 131 A.3d at 355. Specifically, when there is a four
or more-year age gap between the defendant and the child victim of sexual assault,
coercion is presumed—triggering a conclusive presumption that the sexual contact
was committed without the child‘s permission. Accordingly, appellant‘s second-
degree child sexual abuse adjudications and his misdemeanor sexual abuse
adjudications merge.
(. . . continued)
and attempted misdemeanor sexual abuse are different offenses under Blockburger
because the former ―has age requirements for the victim and perpetrator‖ while the
latter ―has a knowledge-of-lack-of-consent requirement.‖ This assertion was
merely dictum, as our ultimate holding that the defendant‘s convictions for the two
offenses should not merge in that case was based upon our recognition that the
defendant‘s convictions were not based upon a single continuous act, but were
instead based upon two separate acts. See id. at 1206 (holding that ―the criminal
conduct on which each [of the defendant‘s] conviction[s] was predicated
represented a discrete act for which [the defendant] could be punished separately‖).
9
Davis acknowledges that the ASAA abrogated the traditional rule that a
child is incapable of consenting to sexual contact in circumstances in which there
is less than a four year age gap between the child and defendant. 873 A.2d at 1105
n.8. In such circumstances, a bona fide consent defense is permitted. Id.
17
2. Fourth-Degree Sexual Abuse
We now consider whether fourth-degree sexual abuse merges with second-
degree child sexual abuse. Fourth-degree sexual abuse requires proof of three
elements: (1) that the defendant ―engage[d] in or cause[d] sexual contact with or
by another person[,]‖ (2) while knowing or having reason to know that the other
person was ―incapable of appraising the nature of the conduct‖10 and (3) ―with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire.‖
D.C. Code §§ 22-3005 (2)(A), -3001 (9). The critical question we examine is
whether proof that the victim was a child at least four years younger than the
defendant, as required for second-degree child sexual abuse, triggers a conclusive
presumption that the child was incapable of appraising the nature of the conduct.
Our holding in Davis that the ASAA retains the conclusive presumption that
children cannot consent to sexual contact, at least where the defendant is at least
10
This second element of fourth-degree sexual abuse may also be satisfied
by a showing that the defendant knew or had reason to know that the other person
was ―[i]ncapable of declining participation in that sexual contact;‖ or ―[i]ncapable
of communicating unwillingness to engage in that sexual contact[.]‖ D.C. Code
§ 22-3005 (2)(B)–(C). However, only the showing that the other person was
―incapable of appraising the nature of the conduct‖ is relevant to this appeal.
§ 22-3005 (2)(A).
18
four years older than the child, is also a helpful guide for our analysis here. See
873 A.2d at 1105–06 & n.8. We explained that this conclusive presumption was
founded upon the notion that ―children ‗do not have the capacity to consent to
intimate sexual touching[,]‘‖ id. at 1105 (quoting Jenkins v. United States, 506
A.2d 1120, 1123 (D.C. 1986)) because child victims ―do not understand what is
happening to them‖ during sexual contact, id. (quoting Guarro, supra, 237 F.2d at
581). Thus, the result in Davis — that a defendant ―at least four years older than
the complainant‖ is ―charged with the knowledge that the sexual act or contact was
committed without the child‘s valid ‗permission‘‖ — is inextricably tied to the
notion that a child is incapable of understanding the nature of sexual contact. Id. at
1106.
Our reasoning in Davis is consistent with the long line of cases employing a
presumption that children cannot consent to sexual contact. The presumption is
not literal (i.e., that a child cannot form the words to express consent); it is instead
based upon a child‘s lack of experience with sexual contact, which necessarily
dictates that consent cannot be meaningfully given, as well as the need to protect
children from undue pressure from older partners. For example, in Williams v.
United States, involving sexual contact between a thirty-five year old defendant
and fourteen-year old child, this court stated ―[w]hile it is true that [the child
19
victim] may have been a willing participant, when an age gap . . . exists, the minor
cannot consent to sexual [contact] in a meaningful way.‖ 756 A.2d 380, 386 (D.C.
2000). Similarly, in Beausoliel v. United States, the D.C. Circuit held that
―[y]oung girls‖ cannot consent to sexual contact, explaining that they are ―within
the necessary protection of the law‖ in order to avoid ―persons [from taking]
advantage of their ignorance and inexperience[.]‖ 107 F.2d 292, 296 (D.C. Cir.
1939). Thus, the presumption that child victims cannot consent is interwoven with
an underlying rationale that children, by virtue of their youth and inexperience, do
not understand sexual conduct, and therefore are in need of protection from
coercive sexual contact.
When the Council developed the ASAA, the Council defined new crimes
that went beyond crimes that existed when the presumptions of force and non-
consent for sexual contact with children developed. See Ballard v. United States,
430 A.2d 483, 485–86 (D.C. 1981) (explaining the crimes of ―rape,‖ which
protected adults from forcible, non-consensual sexual acts, and ―carnal
knowledge,‖ which protected female children under the age of sixteen by
presuming force and non-consent). Fourth-degree sexual abuse is one of the new
sexual assault crimes, which criminalizes sexual contact with a person ―incapable
of appraising the nature of the conduct.‖ D.C. Code § 22-3005. In a case
20
involving an adult victim, the charge might involve proof of the victim‘s
intoxication or general mental incapacity. See, e.g., Thomas v. United States, 59
A.3d 1252, 1255 (D.C. 2013) (recounting defendant‘s act of sexually touching a
drunk, sleeping adult victim who awoke ―alarmed and confused,‖ giving rise to a
fourth-degree sexual abuse charge). However, in a fourth-degree sexual abuse case
involving a child victim (at least four years younger than the defendant), additional
proof would be redundant because the ASAA retains the notion that children lack
the capacity to understand the nature of sexual conduct. See Davis, supra, 873
A.2d at 1105 (―The drafters [of the ASAA] viewed sexual conduct between adults
and children as ‗inherently coercive due to the age difference between the
participants.‘‖) (quoting Rep. on Bill 10-87 at 4)).
The rationale underlying the presumption that children cannot consent, in
our view, readily extends to the additional proof required for fourth-degree sexual
abuse. We have held that child victims are unable to meaningfully consent to
sexual contact with an older person because they ―do not understand what is
happening to them.‖ See Parnigoni v. District of Columbia, 933 A.2d 823, 827
(D.C. 2007) (citation and internal quotation marks omitted); Guarro, supra, 237
F.2d at 581. Thus, it necessarily follows that if a child victim does not understand
what is happening during sexual contact, then he/she is also ―incapable of
21
appraising the nature of the [sexual conduct]‖ with an older person, as required for
fourth-degree sexual abuse. D.C. Code § 22-3005 (2)(A). It would be inconsistent
for this court to require merger of misdemeanor sexual abuse with second-degree
child sexual abuse, on the basis that the law conclusively presumes that child
victims cannot meaningfully consent, but to preclude merger of fourth-degree
sexual abuse with second-degree child sexual abuse. This is because the
presumption that child victims cannot consent to sexual contact with older partners
is based upon the child victims‘ inability to appraise the nature of the sexual
contact in such circumstances. See Davis, supra, 873 A.2d at 1105–06.
Accordingly, due to the historical premise that children do not understand what is
happening during sexual contact, every act giving rise to a second-degree child
sexual abuse charge will, by virtue of the age gap between the child victim and the
defendant, also involve a child victim who is ―incapable of appraising the nature of
the conduct‖ within the meaning of D.C. Code § 22-3005.
Moreover, we note that proving a distinct, unmerged fourth-degree sexual
abuse charge based upon a particular child victim‘s inability to appraise the nature
of sexual contact would require an inquiry into the victim‘s sexual experience or
knowledge. Such an inquiry would require evidence that may be excluded by the
22
―Rape Shield Law,‖ a protection for victims that was also enacted by the ASAA.11
―The Rape Shield Law was enacted as a safeguard against unwarranted invasions
of privacy and also serves to exclude largely irrelevant evidence that may distract
the jury or lead it to discount the complainant‘s injury because of societal
stereotypes and prejudices.‖ Scott v. United States, 953 A.2d 1082, 1089 (D.C.
2008). Evidence of a victim‘s ―sexual sophistication or private sexual behavior‖ is
precisely the sort of evidence that the Rape Shield Law seeks to exclude, except
where absolutely necessary. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1105
(9th Cir. 2002).
Arguably, some older children may be able to understand sexual contact.
This is something that the Council also recognized, but only as it pertained to
sexual contact between children of similar ages. In the ASAA‘s Committee
Report, the Council explained that in creating the four-year age gap requirement
11
The Rape Shield Law excludes from sexual abuse cases ―reputation or
opinion evidence of the past sexual behavior of an alleged victim[.]‖ D.C. Code §
22-3021 (2012 Repl.). The Law also excludes ―evidence of a victim‘s past sexual
behavior other than reputation or opinion evidence‖ unless the
defendant demonstrates (1) that the evidence is relevant, (2) that its probative value
outweighs ―the danger of unfair prejudice,‖ and (3) that the evidence either reflects
prior sexual behavior with the defendant where consent of the victim is at issue;
indicates that the source of semen or bodily injury is from a person other than the
defendant; or ―is constitutionally required to be admitted.‖ D.C. Code § 22-
3022 (a)–(b) (2012 Repl.).
23
for child sexual assault offenses, it was ―recognizing but not condoning the sexual
curiosity which exists among young persons of similar ages.‖ Rep. on Bill 10-87
at 15 (emphasis added). In line with this statement, we acknowledged in Davis,
that the ASAA slightly modifies the traditional rule that a child is incapable of
consenting to sexual contact, by making the consent defense available in cases in
which the sexual assault victim is a child, but there is less than a four-year age
difference between the child and the defendant.12
We conclude that the Council intended, as a policy matter, to continue to
protect children as a class from undue pressure from an older partner. See, e.g.,
Davis, supra, 873 A.2d at 1105 (―The purpose of the law [regarding sexual
conduct] thus has long been to protect children . . . .‖) (citation omitted); Rep. on
Bill 10-87 at 15 (referring to sexual conduct involving a child and a defendant that
is more than four years older than the child as ―inherently coercive‖). The Council
was willing to permit a bona fide consent defense in sexual assault cases in which
there is less than a four-year age difference between the defendant and child, but
not in cases in which there is a four or more-year age gap between the defendant
12
See Davis, supra, 873 A.2d at 1105 n.8 (―By adopting the four-year age
differential as an element of the child sexual abuse provisions, it appears that the
ASAA does modify the traditional rule so as to allow bona fide consent of a child
victim to be a potential defense where the defendant is less than four years older
than the child.‖).
24
and child. Accordingly, once the government proves in a sexual assault case that
the defendant was four or more years older than the child victim, there is a
conclusive presumption that the defendant knew or should have known that the
child was incapable of appraising the nature of the sexual conduct.
This result is in line with our holding in Davis, and also furthers the purpose
of our Rape Shield Law. In sum, when comparing the elements of the crimes as
required by Blockburger and recognizing a conclusive presumption that a child
who is at least four years younger than the defendant has an ―inability to appraise
the nature of the [sexual contact],‖ D.C. Code § 22-3005 (2)(A), we hold that it is
impossible to commit second-degree child sexual abuse without also committing
fourth-degree sexual abuse. Therefore, appellant‘s fourth-degree sexual abuse
adjudications merge into his second-degree child sexual abuse adjudications.
3. Third-Degree Sexual Abuse
Third-degree sexual abuse requires proof of three elements: (1) that the
defendant ―engage[d] in or cause[d] sexual contact with or by another person,
(2) ―[b]y using force against that other person[,]‖ and (3) ―with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify sexual desire.‖ D.C. Code §§ 22-
25
3004 (1), -3001 (9). The critical question we examine is whether proof that the
victim was a child four or more years younger than the defendant, as required for
second-degree child sexual abuse, triggers a conclusive presumption that the
defendant used force.
Third-degree sexual abuse, which requires use of force, is a step removed
from the extensive discussion in Davis regarding a child victim‘s inability to
consent to sexual contact, because force and non-consent are generally understood
to be independent aspects of a sexual assault. Prior to the ASAA, ―when a child
under the age of consent [was] involved[,] the law conclusively presume[d] force
and the question of consent [was] immaterial.‖ Davis, supra, 873 A.2d at 1105
(quoting United States v. Jones, 477 F.2d 1213, 1218 (D.C. Cir. 1973)). However,
through the ASAA, the Council created a new statutory scheme for sexual assault
offenses, in which force is no longer required as a pre-requisite to adult sexual
assault, and thus, the presumption of force in child sexual assaults has become an
anachronism.13 For example, under the ASAA, second-degree sexual abuse (a
general sexual assault crime, not the child-specific crime at issue in this case) can
13
Consent remains a defense to general sexual assault crimes, D.C. Code
§ 22-3007, but the ASAA did not create a lack-of-force defense. See D.C. Code
§ 22-3001 (4) (defining ―consent‖ such that a victim‘s nonconsensual submission
may be obtained by threats or coercion, not just force).
26
be committed by placing the victim in reasonable fear without force. D.C. Code
§ 22-3003 (1). In addition, force is merely one of four circumstances that can
elevate nonconsensual intercourse to first-degree sexual abuse, which carries a ten-
year-greater maximum penalty. See D.C. Code § 22-3002 (a). In this way, the
ASAA embodies the notion that force is not essential to the commission of sexual
assault offenses, a view that is consistent with a national shift in attitudes toward
sexual assault.14
The omission of any force requirement or lack-of-force defense for sexual
abuse offenses was a conscious decision by the Council in drafting the ASAA.15
14
More than twenty states punish non-consensual or coerced sexual
intercourse between adults without requiring a showing that the perpetrator used
force or threatened imminent force (though many of these states, like the District
of Columbia, also have a more serious offense available when a perpetrator uses
force or threatens imminent force). See Alaska Stat. § 11.41.410 (a)(1); Ariz. Rev.
Stat. § 13-1406 (A); Colo. Rev. Stat. § 18-3-402 (1)(a); Del. Code tit. 11,
§ 772 (a)(1); Fla. Stat. § 794.011 (b) & (e); Idaho Code § 18-6101 (6); Iowa Code
§ 709.1 (1); Kan. Stat. § 21-5503 (a)(1)(A); Mich. Comp. Laws § 750.520d (1)(b);
Mont. Code § 45-5-503 (1); Nev. Rev. Stat. § 200.366 (1)(a); N.H. Rev. Stat.
§ 632-A:2 (m); 18 Pa. Cons. Stat. § 3124.1; 11 R.I. Gen. Laws § 11-37-2 (2); S.C.
Code § 16-3-654 (1)(a); S.D. Codified Laws § 22-22-1 (2); Tenn. Code § 39-13-
503 (2); Utah Code § 76-5-402 (1); Vt. Stat. Tit. 13 § 3252 (a)(1); Wash. Rev.
Code § 9A.44.060 (1)(a); Wis. Stat. § 940.225 (3); Wyo. Stat. § 6-2-303 (a)(ii); see
also FBI Criminal Justice Information Services Division, ―Reporting Rape in
2013,‖ at 2 (Apr. 9, 2014) (defining rape, without reference to force, as,
―Penetration, no matter how slight . . . without the consent of the victim‖).
15
The Council received support from multiple parties for its decision to
omit a force requirement, see Comment of Denise Snyder, D.C. Rape Crisis
Center, on Bill 10-87 (Jun. 8, 1994); Testimony of Diana Savit, Women‘s Bar
(continued . . .)
27
Instead, the ASAA provides for an increased potential penalty when force is used
against an adult by punishing first-degree sexual abuse with up to thirty years in
prison, while punishing second-degree sexual abuse with only up to twenty years
in prison. D.C. Code §§ 22-3002, 22-3003.16 The ASAA also symmetrically
authorizes an additional penalty of ten years for the use of force to commit child
sexual abuse. Specifically, in addition to the ten-year maximum penalty for
second-degree child sexual abuse, the trial court could impose, upon proof that a
defendant used force, a consecutive sentence of up to ten years if a defendant is
also convicted of third-degree sexual abuse.
Upon this review of the ASAA‘s plain language and legislative history, we
conclude that the ASAA does not retain a presumption of force for sexual contact
with children. Thus, the fact that there is a four or more year age gap between the
defendant and child victim of sexual assault, does not trigger a presumption that
force was used during the sexual contact. Instead, in a criminal prosecution in
(. . . continued)
Association of D.C., on Bill 10-87, at 5 (Sep. 22, 1993), and the Council did not
amend the structure of the ASAA in response to the suggestion that lack of force
and consent were essentially equivalent, see Comment of Shirlimarie McAroy-
Gray, D.C. Public Defender Service, on Bill 10-97, at 4–5 (Sep. 23, 1993).
16
The penalty for an ASAA crime may be further enhanced if additional
aggravating circumstances are present. See D.C. Code § 22-3020 (2012 Repl.).
28
which both third-degree sexual abuse and second-degree child sexual abuse are
charged, the force element of third-degree sexual abuse must be proven
independently from the four-year age gap requirement under second-degree child
sexual abuse. Accordingly, it is possible to commit second-degree child sexual
abuse without committing third-degree sexual abuse, and thus, those offenses do
not merge. Importantly, we note that in this case, the trial court made findings that
appellant actually used force against R.J. without relying on a presumption of force
arising from R.J.‘s youth. Thus, because M.S.‘s adjudication of delinquency for
third-degree sexual abuse rested on independent findings that he used force against
R.J. (the unique element for third-degree abuse), those adjudications are affirmed.17
III. Conclusion
17
Our conclusion that misdemeanor sexual abuse and fourth-degree sexual
abuse merge into second-degree child sexual abuse does not result in lenient
treatment of convicted child abusers. Sexual contact with an adult who could not
appraise the nature of the conduct leads to a maximum penalty of just five years,
and sexual contact without permission leads to a maximum penalty of just 180
days. D.C. Code §§ 22-3005, 22-3006. Those crimes merge into second-degree
child sexual abuse, but a perpetrator of second-degree child sexual abuse faces an
even greater maximum penalty of ten years, reflecting the legislative intent to
protect children. If the perpetrator uses force to accomplish the sexual contact with
a child at least four years younger than the perpetrator, the charge of third-degree
sexual abuse, which does not merge, allows an additional ten-year penalty beyond
that for second-degree child sexual abuse, commensurate with the increased
penalty for using force during an abusive sexual act with an adult.
29
Contrary to the parties‘ contentions, the plain language and legislative
history of the Anti-Sexual Abuse Act of 1994 do not clearly indicate a policy on
merger of the various sexual assault offenses. We hold, based upon our analysis of
the ASAA and our prior decisions in Davis and Blockburger, that every act
fulfilling the elements of second-degree child sexual abuse necessarily also fulfills
the elements of misdemeanor sexual abuse and fourth-degree sexual abuse. In
other words, it is impossible to commit second-degree child sexual abuse without
triggering a conclusive presumption that the child victim was incapable of giving
permission, as required for misdemeanor sexual abuse. It is also impossible to
commit second-degree child sexual abuse without triggering a conclusive
presumption that the child victim was incapable of appraising the nature of the
conduct, as required for fourth-degree sexual abuse. Thus, the offenses of
misdemeanor sexual abuse and fourth-degree sexual abuse merge into second-
degree child sexual abuse.
In contrast, we hold that the ASAA does not presume a use of force merely
by the fact that a defendant is at least four years older than a child victim of sexual
assault, and the government‘s proof that a defendant used force to accomplish a
sexual contact may sustain an independent adjudication of delinquency (or
conviction) for third-degree sexual abuse. Thus, appellant‘s adjudications of
30
delinquency for third-degree child sexual abuse, having rested on independent
findings that appellant actually used force against the child victim, do not merge
with his second-degree child sexual abuse adjudications. Accordingly, we affirm
in part and remand for merger consistent with this opinion.18
So ordered.
18
Appellant‘s briefs discussed Judge Farrell‘s concurring opinion in Davis
in order to provide additional support for his merger claims. In his concurrence,
Judge Farrell indicated that he had ―strong reservations‖ about whether the Council
intended to allow the government to charge general sexual abuse offenses in
circumstances in which the victim is a child. Judge Farrell opined that by charging
Davis with misdemeanor sexual abuse for engaging in sexual conduct with a child,
the government had ―reached outside [of the] hierarchy‖ of child sexual abuse
offenses to charge a general sexual abuse offense — which likely was not intended
by the Council. Davis, supra, 873 A.2d at 1106. In our majority opinion in Davis,
we decided to leave Judge Farrell‘s statutory interpretation of the ASAA ―for
another occasion[,]‖ because Davis had not argued that he had been improperly
charged and in addition, we observed that ―[f]acially, the misdemeanor sexual
abuse statute [was] applicable to Davis‘s offense against his daughter[.]‖ Id.
While appellant discussed Judge Farrell‘s concurring opinion, appellant
made clear several times in his briefs and at oral argument that he is not arguing
that he was improperly charged in this case. See, e.g., Reply Br. of Appellant at 9,
In re M.S., No. 15-FS-313 (May 25, 2016) (―M.S. is not challenging [the
government‘s] charging decisions‖); id. at 8 (―M.S. does not argue . . . that the
District could not charge the general sexual assault offenses given that the
complainant in this case was a child.‖); see also Oral Argument, at 10:21, In re
M.S., No. 15-FS-313 (June 1, 2016) (statement from defense counsel that ―[w]e‘re
not saying that the crimes can‘t be charged, we‘re just saying that they have to
merge‖). Accordingly, because appellant is not challenging the government‘s
decision to charge him with general sexual abuse offenses in this case, we again
leave for another occasion the issue of whether the government may charge general
sexual abuse in circumstances in which child sexual abuse offenses are applicable.
31
Appendix A: Table of Elements of the ASAA Crimes at Issue
Crime Elements Statutory Source
Second-Degree Sexual Contact with a Child § 22-3009
Child Sexual Defendant is at least 4 Years Older Than § 22-3009
Abuse the Child
Intent to Abuse, Humiliate, Harass, § 22-3001 (9)
Degrade, or Arouse or Gratify Sexual
Desire
Third-Degree Sexual Contact with Another Person § 22-3004
Sexual Abuse By Using Force Against that Person § 22-3004 (1)
Intent to Abuse, Humiliate, Harass, § 22-3001 (9)
Degrade, or Arouse or Gratify Sexual
Desire
Fourth-Degree Sexual Contact with Another Person § 22-3005
Sexual Abuse Knows or Has Reason to Know that the § 22-3005 (2)(A)
Other Person Is Incapable of Appraising
the Nature of the Conduct
Intent to Abuse, Humiliate, Harass, § 22-3001 (9)
Degrade, or Arouse or Gratify Sexual
Desire
Misdemeanor Sexual Contact with Another Person § 22-3006
Sexual Abuse With Knowledge or Reason to Know that § 22-3006
Act is Without the Person’s Permission
Intent to Abuse, Humiliate, Harass, § 22-3001 (9)
Degrade, or Arouse or Gratify Sexual
Desire