Hice v. State ( 1980 )

George Rose Smith, Justice.

The appellant, 20, was convicted of the rape of a 9-year-old girl and was sentenced to serve 50 years’ imprisonment. His brief questions only the sufficiency of the evidence.

It is argued that there is no proof of penetration of the labia, as required by our earlier cases. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Poe v. State, 95 Ark. 172, 129 S.W. 292 (1910). The child’s testimony, which we need not narrate, was sufficient to identify the accused and establish penetration. The examining physician testified that there were signs of irritation, reddening, and tenderness into the inner surfaces of the labia, “to the opening into the vagina at the hymen. There was really no evidence of penetration past the hymen, but certainly within the labia up to as far as the hymen, there was evidence of irritation.” The proof is essentially the same as that in the Poe case, supra, and is sufficient under our earlier cases to support the conviction.

In our discussions of the case, however, the question has been raised that the proof may not be sufficient under the new Criminal Code, in which the definition of rape includes “sexual intercourse” with a person less than 11 years old. Ark. Stat. Ann. § 41-1803 (Repl. 1977). Sexual intercourse in turn is defined as “penetration, however slight, of a vagina by a penis.” § 41-1801(9). According to medical textbooks and to dictionaries, the female sexual organs consist of the vulva, comprising the outer and inner labia, and the vagina, which is the canal extending inward to the uterus. The hymen is at the entrance to the vagina. Thus there is a possibility that the legislature, in referring to the slightest penetration of the vagina, meant to change the crime of rape by requiring a deeper penetration into the body than was formerly necessary. We appreciate the force of this argument, which is supported by the medical definition of “vagina” and by the rule of strict construction of penal statutes; but we are firmly convinced that the legislature did not intend any such drastic change in the law.

The basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the legislative intention. Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384 (1943). Penal statutes are not to be so strictly construed as to exclude cases which the words, in their common and ordinary acceptation, would apply to. St. Louis, I.M. & S. Ry. v. Freeman, 95 Ark. 218, 128 S.W. 1024 (1910). And a literal application of a statute which would lead to absurd consequences should be discarded in favor of a more reasonable interpretation. Merritt v. No Fence Dist. No. 2, Jefferson County, 205 Ark. 1129, 172 S.W.2d 684 (1943).

We have two basic reasons for our conviction that the suggested change was not envisioned by members of the legislature. First, the consequences would verge on the ridiculous. As far as we know, Arkansas would be the only state in the nation having such a nebulous and impractical definition of rape. The Code definition requires penetration, “however slight,” of the vagina. In the case of married women, with the hymen gone, it would often be utterly impossible for the victim to say whether the required depth of penetration had occurred, despite the essential immateriality of that particular fact. Certainly the Commentary prepared by the draftsmen of the Criminal Code gave no hint whatever to the General Assembly that such a far-reaching change in the law was to come about.

In the second place, the selection of the word “vagina” is perfectly understandable in view of the task confronting the draftsmen of the Code. They were, as they explain in the Commentary to Section 41-1801 (where sexual intercourse is defined), attempting “to foreclose any contention that the offenses defined by this Chapter are vague in scope.” But in modernizing the criminal law, the draftsmen said specifically, in the last paragraph of the Commentary to that Section: “ ‘Sexual intercourse’ is defined in a fashion that restates the common law doctrine that any penetration suffices to constitute the act.” And the Poe case, supra, which held that penetration of the labia is sufficient, was cited in support of that statement.

It must be remembered that the Code was designed to update language that had not been touched since the Revised Statutes were adopted in 1838. Only ten years earlier Noah Webster had published, in two big volumes, the first edition of his magnificent dictionary. Even though that dictionary defined 70,000 words, it did not contain such entries as anus, penis, or vagina—all Latin words that had precisely the same spelling in ancient Rome. But such words simply were not used in print. Indeed, Webster perhaps went to the limit of propriety in his distinction between the sexes: “The male sex is usually characterized by muscular strength, boldness and firmness. The female sex is characterized by softness, sensibility and modesty.” Nothing more. Webster’s Dictionary (1st ed., 1828), Sex.

So with the General Assembly in 1838. Rape, almost in Webster’s words, was defined in the Revised Statutes as “the carnal knowledge of a female, forcibly, and against her will.” Ark. Stat. Ann. § 41-3401 (Repl. 1964). Sodomy was not even defined, being referred to simply as the crime against nature, which was Webster’s entire definition. And as to penetration the statute merely stated: “Proof of actual penetration into the body shall be sufficient to sustain an indictment for a rape, or for the crime against nature.” §§ 41-814 and 41-3402 and Compiler’s Notes (Repl. 1964).

However, times change. By the 1970’s the draftsmen of the Code preferred to use more forthright language. Sexual intercourse was defined as the penetration of a vagina (no better word comes to mind) by a penis. § 41-1801(9). That distinguishes rape from “deviate sexual activity,” which includes the penetration, however slight, of the anus or mouth of one person by the penis of another. § 41-1801(2). Thus the word “vagina” was selected not to change the definition of rape but to add precision to the definitions of rape and of deviate sexual activity, which includes what was formerly known as sodomy. There is no tenable basis for supposing that the suggested far-reaching change in the fundamental conception of the crime of rape ever crossed the minds of those who wrote or enacted the 1975 Criminal Code.

Affirmed.

Fogleman, C.J., and Holt and Stoud, JJ., concur. Purtle and Mays, JJ., dissent.