State of Iowa v. Randy Scott Meyers , 2011 Iowa Sup. LEXIS 42 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 08–1524
Filed June 24, 2011
STATE OF IOWA,
Appellee,
vs.
RANDY SCOTT MEYERS,
Appellant.
On review from the Iowa Court of Appeals
Appeal from the Iowa District Court for Scott County, Gary D.
McKenrick, Judge.
Defendant seeks further review of court of appeals’ decision affirming
his conviction for sexual abuse and lascivious acts with a minor. DECISION
OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and David A. Adams,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Michael J. Walton, County Attorney, and Julie A. Walton,
Assistant County Attorney, for appellee.
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CADY, Chief Justice.
Randy Scott Meyers seeks further review of a decision by the court of
appeals that affirmed his conviction for sexual abuse in the third degree and
lascivious conduct with a minor. Meyers primarily challenges the sufficiency
of the evidence to support the convictions. On our review, we affirm the
decision of the court of appeals and affirm the judgment and sentence of the
district court.
I. Background Facts and Prior Proceedings.
In the fall of 1993, Randy Scott Meyers met and began dating Patricia,
a single mother of two children. Meyers was thirty years old. Patricia and
her children lived in Davenport. The oldest child, Mindy, was six years old
at the time. Meyers moved in with Patricia and her two children in the
spring of 1994. The couple had one child together later that year.
In June 1995, Meyers was convicted of the crime of lascivious acts
with a child after Patricia found Meyers engaging in sexual activity with
Mindy in her bedroom. He was sentenced to five years in prison. Shortly
after he completed serving his sentence, Meyers returned to live with Patricia
and her children. He then married Patricia, and the couple continued to live
together in Davenport with the children.
Patricia suffered from bipolar disorder during the course of their
marriage. She threatened and attempted suicide while the children were
present and was hospitalized. Meyers was the “controlling figure” to the
children. At times, Meyers physically and mentally abused Mindy, as well as
her younger brother. In September 2004, the Department of Human
Services (DHS) investigated an injury inflicted on Mindy by Meyers.
After the incident of physical abuse, the already contentious familial
circumstances deteriorated rapidly. Meyers, Patricia, and Mindy had started
to smoke crack cocaine together. Meyers supplied the cocaine. Mindy
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quickly developed an addiction to the drug, which caused her to drop out of
high school. She was seventeen years old. In late 2004, Patricia sought and
received a protective order against Meyers that required him to move out of
their Davenport home. Disharmony also developed between Mindy and
Patricia, which caused Mindy to leave the home. She began living with
Meyers in his trailer outside Davenport.
On New Year’s Eve 2004, Meyers and Mindy had a party at the trailer.
Mindy consumed alcohol at the party. On at least two occasions, guests
observed Mindy and Meyers go into Meyers’ bedroom or the bathroom
together for thirty minutes or more. On a separate occasion, Meyers was
observed touching Mindy’s face and hair in a romantic way while telling her
she was beautiful.
Mindy lived with Meyers until January 2005, when Patricia sought
and obtained a court order for her involuntary commitment for drug
treatment. Mindy was initially admitted to a hospital in Davenport for
treatment. In the spring of 2005, she was transferred to Youth Shelter
Services, a residential treatment facility in Ames.
After Mindy was placed at Youth Shelter Services, Meyers moved to
Ames to be closer to her. He was subsequently convicted of lascivious
conduct with a minor and was sentenced to one year in jail. Mindy was the
victim of the crime. While in jail, Meyers sent Mindy a series of letters.
Many of the letters professed love for Mindy and revealed she was the object
of his sexual and romantic desires. In one letter dated March 8, 2006,
Meyers wrote:
All I want is to buy you things (hold you) and make little ones
with you. Please be mine. . . . It’s been over 60 days since I’ve
had sex. It has been with this one beautiful blonde. 1 . . . She is
so gorgouse [sic] so careing [sic] and everything I’ve ever wanted.
1Evidence at trial showed the phrase “beautiful blonde” referred to Mindy.
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I love this beautiful blond! (Her p---- taste great) The best I’ve
ever tasted. The best in bed also and she treats me like a king
....
In another letter to Mindy dated March 12, 2006, Meyers wrote: “I
must have you soon. I must hold you soon . . . . Remember our shower. I
love memories . . . . I’d give anything to have you again and again and again.
You no [sic] what I mean.” Meyers also described Mindy’s physical attributes
in a letter dated March 11, in which he stated:
Your legs are awesome your hips are perfect your chest is more
woman than I can handle your lips are thin and hot your face is
perfect your toes are cool but I’ll admit I haven’t looked at them
as much as your beautiful body but I will!
These letters were signed “Love, Randy.” In other letters, Meyers signed
“Love, Dad.” In one such letter, Meyers advised Mindy to sell his truck and
keep the money to live on and to “be a good kid.” Mindy gave the letters to
her Alcoholics Anonymous sponsor and friend, Johnna Folkmann-Ask.
Folkmann-Ask confronted Meyers about the letters over the phone and told
Meyers to stop calling Mindy.
The DHS child protection worker, who had been initially involved with
the family in 2004, Kim Cronkleton Fish, continued working with the
family’s case in 2005. In June 2005, Fish visited Mindy at the Ames shelter
to follow up on a report of sexual abuse between Meyers and Mindy. Fish
also interviewed Meyers, who admitted he and Mindy had “crossed the line”
and that he knew it was wrong. Meyers further admitted to Fish that the
sexual activity with Mindy he described in the letters had actually taken
place.
The State charged Meyers with two counts of sexual abuse in the third
degree, one count of lascivious conduct with a minor, and one count of
distributing a controlled substance to a minor for his conduct with Mindy
while they resided together in Meyers’ trailer between September 2004 and
5
January 2005. The State offered two alternative theories of sexual abuse
under Iowa Code section 709.4 (2003). The first alternative alleged Meyers
performed sex acts by force or against Mindy’s will. See Iowa Code
§ 709.4(1). The second alternative alleged Meyers performed sex acts at a
time when Mindy was suffering from a mental defect or incapacity. See id.
§ 709.4(2)(a). Meyers waived his right to a jury trial and proceeded to a
bench trial. Mindy did not testify at trial, and the trial court denied the
State’s offer to admit her deposition into evidence in her absence.
At trial, the State introduced evidence consistent with the background
facts set forth in this opinion. Additionally, the State offered the testimony
of an expert witness, Dr. Richard Hutchison, a board-certified clinical
psychologist who specializes in the mental health treatment of children and
families. Dr. Hutchison opined that Mindy did not have the ability to
consent to a sex act with Meyers under all the circumstances of the case.
The State asked Dr. Hutchison a series of hypothetical questions about the
psychological state of a girl in Mindy’s circumstances from the time she was
sexually abused as a young child by her stepfather to when she moved in
with her stepfather and began a romantic relationship with him involving
sex. 2 Dr. Hutchison generally opined that a girl in Mindy’s situation would
not be psychologically able to effectively consent to sex with her stepfather.
He testified that Meyer’s past abuse of Mindy in their home as her father
figure, along with Patricia’s support of Meyers following the abuse, would
confuse a child’s boundaries and freeze the child’s emotions at the age of the
trauma if left untreated. Dr. Hutchison also testified a child witnessing and
2Iowa prohibits a sexual relationship between stepparent and stepchild when the
parents are still married. See Iowa Code § 726.2; see also Back v. Back, 148 Iowa 223, 231,
125 N.W. 1009, 1012 (1910). An incestuous relationship, however, is not the same as sex
without consent. State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, 527 (1943). The State
did not charge Meyers under section 726.2.
6
experiencing physical violence in the home by Meyers would fear resisting
him. He further testified that a chaotic household without appropriate
decision making and boundaries would cause increased confusion.
Additionally, Dr. Hutchison testified an addiction to crack cocaine, with the
authority figure as the supplier, would cause a physiological layer of
dependency. The State concluded its questioning of Dr. Hutchison by asking
him to express his expert opinion about Mindy’s ability to consent to sexual
activity with Meyers based on the evidence presented at trial. Dr. Hutchison
concluded the combination of all the factors in Mindy’s life would cause her
to have a “below normal” ability to resist her stepfather and that, ultimately,
Mindy would not have the ability to consent to sex with him.
The district court found Meyers guilty of all charges against him. The
court concluded there was insufficient evidence Mindy was “mentally
incapacitated” under Iowa Code section 709.4(2)(a) at the time of the sex
acts with Meyers. Yet, it found Meyers guilty of sexual abuse in the third
degree under the totality of the circumstances that showed the sex acts were
against Mindy’s will because they occurred while she was psychologically
unable to consent to Meyers’ advances as her stepparent. See Iowa Code
§ 709.4(1). Relying on the same facts, the court found Meyers guilty of
lascivious conduct with a minor based on evidence that Meyers had
“persuaded [Mindy] to disrobe for the purpose of arousing his sexual
desires.” See id. § 709.14. Finally, the court found the State proved Meyers
was guilty of distributing a controlled substance to a minor under Iowa Code
section 124.406.
Meyers appealed from his conviction for lascivious conduct with a
minor and sex abuse in the third degree. 3 He primarily challenged the
3Meyers does not appeal from his conviction for distribution of a controlled
substance to a minor under Iowa Code section 124.406.
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sufficiency of the evidence to support the conviction. The thrust of the
challenge targets the absence of testimony from Mindy that the sex acts with
him were by force or against her will. Meyers asserts Mindy’s consent
cannot be negated without expert evidence that she suffered from a
recognized mental defect. He claims the expert testimony presented by the
State that she was psychologically unable to consent is insufficient to vitiate
consent under the statute. We transferred the case to the court of appeals.
A divided court affirmed the judgment and sentence of the district court. We
granted Meyers’ request for further review.
II. Scope of Review.
We review challenges to the sufficiency of evidence presented at trial
for correction of errors at law. State v. Hennings, 791 N.W.2d 828, 832 (Iowa
2010). In doing so, we examine whether, taken in the light most favorable to
the State, the finding of guilt is supported by substantial evidence in the
record. Id. at 832–33. We find evidence substantial if it would convince a
rational fact finder the defendant is guilty beyond a reasonable doubt. State
v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010). We draw all fair and
reasonable inferences that may be deduced from the evidence in the record.
Hennings, 791 N.W.2d at 832–33. In assessing the sufficiency of the
evidence, we find circumstantial evidence equally as probative as direct.
State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994).
III. Evidence of Sexual Abuse.
The State alleges two separate occasions of sexual abuse between
September 2004 and January 2005. To sustain the conviction, there must
be sufficient evidence of every fact necessary to support each count. See
State v. Capper, 539 N.W.2d 361, 364 (Iowa 1995) (“In determining the
sufficiency of the evidence we consider each count separately.”), rev’d on
other grounds by State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000). The first
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requirement for sexual abuse in the third degree is the State must provide
sufficient evidence a sex act occurred. See Iowa Code § 709.4. To prove a
sex act occurred, the State presented Meyers’ statements admitting to
numerous sex acts with Mindy, along with circumstantial evidence of the
existence of a sexual relationship. Meyers claims there was insufficient
corroborative evidence to support his references to sex acts with Mindy.
A. Sufficient Evidence of Sex Act. Our law on the admissibility of
confessions has been substantively unchanged since its inception in 1860.
See Iowa Code § 4806 (1860). Under this law, extrajudicial confessions of a
defendant cannot result in a conviction in the absence of corroborating
evidence of the crime charged. Iowa R. Crim. P. 2.21(4). The general policy
behind the statute is to help ensure convictions will not be based upon
untrue or coerced confessions. Comments on Recent Cases, 36 Iowa L. Rev.
694, 704 (1951); see also Warszower v. United States, 312 U.S. 342, 347, 61
S. Ct. 603, 606, 85 L. Ed. 876, 880 (1941) (“The rule requiring corroboration
of confessions protects the administration of the criminal law against errors
in convictions based upon untrue confessions alone.”).
Although there is no confession by Meyers in this case to any of the
charges, there were numerous admissions. Admissions can constitute a
confession when they “amount to an acknowledgement of the guilt of the
offense charged.” Capper, 539 N.W.2d at 364. As a result, admissions are
treated with the same evidentiary precautions as confessions. See State v.
Polly, 657 N.W.2d 462, 466 n.1 (Iowa 2003). Thus, admissions of essential
facts or elements of the crime made after the alleged crime must be
supported with sufficient corroborating evidence. Id.
Corroborating evidence is sufficient to support a conviction based on a
confession when it tends to “confirm[] some material fact connecting the
defendant with the crime.” State v. Robertson, 351 N.W.2d 790, 793 (Iowa
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1984). It is sufficient as long as it supports the content of the confession
and if, together with the confession, proves the elements of the charge
against the defendant beyond a reasonable doubt. State v. Wescott, 130
Iowa 1, 8, 104 N.W. 341, 344 (1905). Corroborating evidence may be either
direct or circumstantial. See Liggins, 524 N.W.2d at 187. It need not be
strong evidence, “nor need it go to the whole of the case so long as it
confirms some material fact connecting the defendant with the crime.” Id.
Circumstantial corroborating evidence may include several facts that, when
combined, support the admission. Id.
Meyers admitted to instances of oral sex and sexual intercourse with
Mindy in letters he wrote in jail in the spring of 2005. Meyers specifically
recounted at least two instances of oral sex and sexual intercourse with
Mindy in these letters. At trial, the State also presented evidence that
Meyers indicated the relationship and activity described in his letters to
Mindy were “her choice.” Finally, the child protective worker testified that
Meyers told her he and Mindy had “crossed the line,” and that he “knew it
was wrong, but it happened.”
The State also offered additional facts that corroborated these
admissions. Aside from the testimony of the child protective worker and the
AA sponsor, the State introduced the testimony of Mindy’s friend, who said
Mindy disappeared with Meyers several times during a New Year’s Eve party
into Meyers’ bedroom and that Meyers generally behaved romantically
towards Mindy. The State also introduced evidence of the prior sexual abuse
of Mindy by Meyers in 1994 and 2005. Finally, Mindy’s AA sponsor testified
that Meyers and Mindy would sing a sexually explicit song to one another
during their telephone conversations. Taken individually, these
circumstances would not be legally conclusive as to the existence of any
sexual encounters between Mindy and Meyers. However, we find,
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cumulatively, these circumstances “confirm[] some material fact connecting
the defendant with the crime.” Robertson, 351 N.W.2d at 793. As a result,
we conclude the district court did not err in finding sufficient evidence that
two sex acts occurred.
B. Sufficient Evidence Sex Acts Were “By Force or Against the
Will of” Mindy. Meyers next claims there was insufficient evidence the sex
acts were done “against the will of” Mindy to support a conviction for sexual
abuse in the third degree. See Iowa Code § 709.4(1). He claims the evidence
of Mindy’s history with him is insufficient to establish her lack of consent,
even when aided by expert opinion. Consistent with the decision of the
district court, the State asserts the statutory element of “by force or against
the will” includes circumstances in which pervasive psychological coercion
vitiates the consent of the victim.
Structurally, Meyers argues his conduct in this case did not fall within
any specific statutory category of section 709.4 that addresses the inability
of the other person to consent, and there was no evidence presented at trial
of either physical force exhibited by him or nonconsent voiced or exhibited
by Mindy to support a conviction under the “by force or against the will”
standard of section 709.4(1). In particular, Meyers argues the State’s
evidence attempted to show Mindy suffered from a mental defect, and the
mental-defect standard of section 709.4(2)(a) does not include the inability of
an otherwise mentally competent individual to consent to sex with just one
particular person.
At the outset, it is unnecessary for us to address Meyers’ argument
that the “mental defect” standard under section 709.4(2)(a) is inapplicable to
the circumstances presented in this case. Meyers was charged and
prosecuted under two categories of sexual abuse. The State alleged Meyers
engaged in sex acts with Mindy either “by force or against” her will under
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section 709.4(1) or while she was suffering from “a mental defect or
incapacity” that precluded consent under section 709.4(2)(a). The district
court found insufficient evidence of a mental incapacity, but concluded there
was sufficient evidence of psychological manipulation by Meyers to establish
Mindy did not give effective consent under section 709.4(1). The district
court found the sex acts were against Mindy’s will based on evidence
presented by the State’s expert witness. Thus, our task is to decide if the “by
force or against the will” standard of section 709.4(1) includes consent
negated by psychological factors and, if so, whether there was sufficient
evidence presented in this case to support a conviction. See 3 Charles E.
Torcia, Wharton’s Criminal Law § 287, at 30–31 (14th ed. 1980) [hereinafter
Torcia] (noting the terms “against the female’s will” and “without her
consent” are synonymous).
We begin our resolution of the sufficiency-of-the-evidence issue by first
examining the applicable statutory language. We recognize it is the
responsibility of our legislature to define crimes. State v. Welton, 300
N.W.2d 157, 160 (Iowa 1981). Our task is to apply and interpret such
statutes to carry out the legislative intent based on the facts and
circumstances of each case. See Auen v. Alcoholic Beverages Div., 679
N.W.2d 586, 590 (Iowa 2004). When a statute is ambiguous, we employ our
familiar rules of statutory interpretation to aid us in ascertaining the intent
of the legislature. McCullah, 787 N.W.2d at 94. A statute is ambiguous if
reasonable minds could be uncertain as to “ ‘the general scope and meaning
of the statute when all of its provisions are examined.’ ” Id. (quoting Carolan
v. Hill, 553 N.W.2d 882, 887 (Iowa 1996)). We are primarily guided by what
the legislature said, not what it should or might have said. Carolan, 553
N.W.2d at 888. Aside from the express language used in the statute, we also
consider the overall object sought to be attained, the statute’s purpose and
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underlying policies, and the consequences of various interpretations.
McCullah, 787 N.W.2d at 94–95. In the end, a criminal statute cannot be
expanded beyond those circumstances intended by the legislature to be
within the scope of the statute. See State v. Hearn, 797 N.W.2d 577, 587
(Iowa 2011) (recognizing the “time-honored rule that criminal liability cannot
be expanded beyond express legislative terms by construction or
implication”).
In our search for legislative intent in this case, we first examine the
legal history of the statute because it may shed light on whether the
particular facts before us were intended to be governed by the current law.
See 2B Norman J. Singer & J.D. Shambie Singer, Statutes & Statutory
Construction § 50:1, at 156 (7th ed. 2008) [hereinafter Singer]. As with many
other early criminal statutes, Iowa’s sexual abuse statute was based on the
common law. The common law declared it unlawful for a man to engage in
sexual intercourse with a woman by force and against her will. Torcia,
§ 283, at 1. Over the years, statutes have expanded the common law crime
to include additional specific circumstances or categories of nonconsensual
conduct. Model Penal Code & Commentaries § 213.1 cmt. 1, at 276–77
(1980) [hereinafter Model Penal Code]. The first expansion was to specifically
include children viewed by the law to be too young to effectively consent. Id.
§ 213.1 cmt. 1, at 276. This expansion occurred very early in history when
an English statute expanded the crime to include sexual intercourse with a
child under the age of ten years. Id. It occurred so early in time that it is
generally viewed as part of the common law and was readily accepted into
American law. Torcia, § 291, at 43.
Iowa followed the common law approach when it enacted its rape
statute in 1851. See Iowa Code § 2581 (1851). This statute criminalized
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sexual intercourse with a child under the age of ten or with any other female
when “by force and against her will.” Id.
Since that time, the Iowa legislature has built on the common law
approach by expanding the crime to add more specific categories of offensive
conduct. These categories have been aligned with those circumstances
commonly recognized in other states and generally involve sexual
intercourse with individuals who are unconscious, drugged, or mentally
incompetent. See Iowa Code § 709.4. Today, Iowa’s statute maintains its
original common law standard of force and nonconsent, with only a slight
alteration from the past: Iowa Code section 709.4(1) makes it a crime to
perform a sex act “by force or against the will of the other person” and
declares such conduct to be sexual abuse in the third degree. 4 Iowa Code
§ 709.4(1) (emphasis added). Our legislature changed the conjunctive “and”
to “or” in 1921. See 1921 Iowa Acts ch. 192, § 1 (codified at Iowa Code
§ 12966 (1924)).
Iowa’s sexual abuse statute then defines six additional categories of
third-degree sexual abuse. See 4 Robert R. Rigg, Iowa Practice: Criminal
Law § 6.24, at 224 (2010). The first category captures the circumstance
when the other person “is suffering from a mental defect or incapacity which
precludes giving consent.” Iowa Code § 709.4(2)(a). The second category
prohibits sex acts with a person who is twelve or thirteen years of age.5 Id.
4Chapter 709 is a comprehensive set of laws generally defining the scope of sex acts
that are deemed offensive. Along with third-degree sexual abuse, the law also criminalizes
sex abuse causing another person serious injury as first-degree sexual abuse, classified as a
class “A” felony. Iowa Code § 709.2. Second-degree sexual abuse is a class “B” felony and
includes sexual abuse committed while using a dangerous weapon, sex acts with a person
under the age of twelve, and sex acts aided and abetted by one or more other individuals
and committed by force or against the will of the victim. Id. § 709.3. Several other
categories of sex abuse that qualify as misdemeanors or class “D” felonies are also included
in chapter 709. See id. §§ 709.12, .15–.16.
5A sex act with a child less than twelve years of age is prohibited as second-degree
sexual abuse. Iowa Code § 709.3(2).
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§ 709.4(2)(b). The third and fourth categories capture a variety of
circumstances when the other person is fourteen or fifteen years of age and
the defendant is a member of the same household, related by blood or
affinity to the fourth degree, an authority figure, or four or more years older
than the other person. Id. § 709.4(2)(c). The fifth category involves
situations in which the other person is under the influence of a controlled
substance that prevents consent, and the defendant reasonably knows the
person is under the influence of the substance. Id. § 709.4(3). The sixth
category criminalizes sex acts with a person who is “mentally incapacitated,
physically incapacitated, or physically helpless.” Id. § 709.4(4). While the
categories describe fact-specific circumstances, each category continues to
involve the absence of consent. Thus, consent remains the lynchpin of the
crime, and the legislature has sought over the years to identify more specific
circumstances of nonconsent while leaving the broader “against the will”
standard in place to capture all circumstances of actual nonconsent. See 2A
Singer § 47:17, at 378–79 (noting that, unless a contrary intention is
apparent, when specific terms follow general terms, the general terms
include everything embraced by the specific terms that follow along with
things beyond the specific terms that are similar in nature though not
expressly mentioned); see also 2A Singer § 47:25, at 429–35 (stating maxim
of expressio unius est exclusio alterius applies in narrow circumstances and
is to be disregarded when its application would “thwart the legislative intent
made apparent by the entire act”). The structure of the statute does not
foreclose psychological circumstances that could work to establish
nonconsent.
Further evidence of the legislative intent for psychological
circumstances to be included in “against the will” language of Iowa Code
section 709.4(1) can be found in the context of the surrounding statutes in
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chapter 709. See Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co.,
787 N.W.2d 75, 82 (Iowa 2010) (noting “we interpret statutes in their
context”). Our legislature has specifically declared in section 709.5 that
physical resistance is not required “to establish that an act of abuse is
committed by force or against the will of a person.” Iowa Code § 709.5.
Thus, nonconsent under the “against the will” language of section 709.4(1)
does not rely on the existence of physical resistance. Instead, the legislature
expressed its intention that “the circumstances surrounding the commission
of the act” be considered in determining whether the act was “by force or
against the will of the other.” Id. We have said that this language “means all
the circumstances, subjective as well as objective” are considered. State v.
Bauer, 324 N.W.2d 320, 322 (Iowa 1982).
Additionally, section 709.1(1) declares the meaning of the phrase
“against the will of the other” includes acts done while the person is in a
state of unconsciousness. Iowa Code § 709.1(1). Clearly, the “against the
will of another” standard seeks to broadly protect persons from
nonconsensual sex acts, even under circumstances showing the victim had
no opportunity or ability to consent due to the inherently coercive nature of
the circumstances. Likewise, a psychological inability to consent broadly
protects individuals from nonconsensual sex when particular circumstances
have rendered that person incapable of consenting to the sexual advances of
a particular person. Importantly, the statute as a whole expresses no limit
on the conduct or circumstance that can be used to establish nonconsent
under section 709.4(1). See id. § 4.2 (directing courts to liberally construe
the provisions of the Code “with a view to promote its objects and assist the
parties in obtaining justice”); see also Hearn, 797 N.W.2d at 587 (noting in
our interpretation of statutes we “decline to narrow a broad legislative
16
formulation by implying or constructing limitations not present in the
statute and undercutting its obvious public purpose”).
The overall purpose of Iowa’s sexual abuse statute is to protect the
freedom of choice to engage in sex acts. See State v. Sullivan, 298 N.W.2d
267, 271 (Iowa 1980). The sex abuse statute exists to protect a person’s
freedom of choice and to punish “unwanted and coerced intimacy.” Model
Penal Code § 213.1 cmt. 4, at 301. A person who imposes a sex act on
another by force or compulsion under any circumstance violates the other’s
protected interest. Id. Yet, nonconsent includes both consent that is
nonexistent and consent that is ineffectual, and these circumstances have
been largely assimilated into the statute to account for its present expanded
categories of rape. Id. Nevertheless, “the unifying principle among this
diversity of conduct is the idea of meaningful consent.” Id. Consent
precludes rape, which conversely means the law of rape focuses on
“imposition by the actor under circumstances where there is an actual
failure of consent or where the law is prepared to characterize an actual
consent as incompetent.” Id. Accordingly, sexual abuse today remains a
crime predicated on sex acts done by imposition. Id. This concept of
imposition has not been narrowed in any way by our legislature over the
years, but it remains at the heart of the statute to capture both case-specific
circumstances of an “actual failure of consent” as well as circumstances
when the legislature has declared “consent as incompetent” or nonexistent.
See id.
This statutory approach to nonconsent under section 709.4(1) is
consistent with our prior cases. In Bauer, the defendant entered the home of
the victim through a window during the early morning hours, while the
victim was sleeping on a living room sofa. 324 N.W.2d at 321. The victim
awoke after the defendant began kissing her. Id. He then removed her
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clothing and engaged in sexual intercourse. Id. The defendant expressed no
threats and used no force, other than what was necessary to accomplish the
sexual intercourse. Id. The victim never physically resisted the defendant
and voiced no objections to his actions. Id. Instead, the victim made a
conscious decision to refrain from any outward protest because she feared
such resistance would place her in greater danger. Id. The victim felt
“paralyzed,” unable to resist the defendant’s advances, as she remembered a
past incident involving another woman found murdered in a ditch. Id. at
321–22. We affirmed the conviction for sexual abuse and rejected the claim
by the defendant that the circumstances did not amount to “force against
the will” of the victim. Id. at 322. We found the circumstances produced
fear in the mind of the victim that subjectively rendered her incapable of
protesting and resisting, which supported a finding that the advances of the
defendant were imposed against her will. Id.
Importantly, Bauer illustrates that the mental state of the victim is a
proper circumstance to consider in determining if a sex act is
nonconsensual. The paralysis felt by the victim in Bauer is compatible with
the evidence of the fragile and frozen emotional state of Mindy brought about
by her unique and traumatizing history with Meyers as described by the
expert witness in this case.
More directly, we recently observed the legislature never intended to
limit the circumstances that could be used to vitiate consent under the “by
force or against the will” standard of section 709.4(1) by specifically listing
the circumstances or categories under which consent may be vitiated. State
v. Bolsinger, 709 N.W.2d 560, 565 (Iowa 2006). Thus, we held that fraud in
fact could be used to establish nonconsent under section 709.4(1), even
though it was not included as a specific category of nonconsent under the
statute. Id. at 564–65. The approach we have taken in our prior cases does
18
not exclude consideration of a victim’s psychological circumstances that may
vitiate consent.
Additionally, other states have considered whether the statutory
element of “force” required to support sexual abuse can include
psychological force. In Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.
1986), the Pennsylvania Supreme Court held the state’s rape statute’s
reference to “forcible compulsion” includes “not only physical force or
violence but also moral, psychological, or intellectual force used to compel a
person to engage in sexual intercourse against that person’s will.” The
analysis of force by the Pennsylvania court focused on “the totality of the
circumstances.” Id. The court cited various factors for the analysis,
including
the respective ages of the victim and the accused, the respective
mental and physical conditions of the victim and the accused,
the atmosphere and physical setting in which the incident was
alleged to have taken place, the extent to which the accused may
have been in a position of authority, domination or custodial
control over the victim, and whether the victim was under
duress.
Id. The Pennsylvania legislature codified the court’s definition of “forcible
compulsion” soon after the court’s decision. 18 Pa. Cons. Stat. § 3101
(2008) (defining “forcible compulsion” as “[c]ompulsion by use of physical,
intellectual, moral, emotional or psychological force, either express or
implied”); see also Dan M. Kahan, Culture, Cognition, and Consent: Who
Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. Pa. L. Rev.
729, 742 & n.45 (citing and describing the 1995 Pennsylvania act amending
the statute defining “forcible compulsion”). Rhode Island also recognizes
psychological coercion as a form of constructive force, but only when the
coercion amounts to a threat. State v. Burke, 522 A.2d 725, 735 (R.I. 1987)
(“A threat may consist of the imposition of psychological pressure on one
19
who, under the circumstances, is vulnerable and susceptible to such
pressure.”).
Similarly, Ohio courts consider the relative age and relationship of the
parties to determine whether psychological force is sufficient. See State v.
Eskridge, 526 N.E.2d 304, 306 (Ohio 1988). However, Ohio’s approach to
psychological force was limited in a subsequent case, State v. Schaim, 600
N.E.2d 661, 665 (Ohio 1992). In Schaim, the court determined that a father
who had a history of sexual acts with his adoptive daughter was not guilty of
raping her when she became a twenty-year-old adult. Schaim, 600 N.E.2d at
665–66. The court held the distinction between psychological force and
physical force was apparent when the victim was an adult child because an
adult child “is not compelled to submit to her father in the same manner as
is a four-year-old girl. She is no longer completely dependent on her
parents, and is more nearly their equal in size, strength, and mental
resources.” Id. at 665. The court firmly held the age of the victim child was
significant because
a child of tender years has no real power to resist his or her
parent’s command, and every command contains an implicit
threat of punishment for failure to obey. Under these
circumstances, a minimal degree of force will satisfy the
elements of forcible rape. . . .
. . . [A] pattern of incest will not substitute for the element
of force where the state introduces no evidence that an adult
victim believed that the defendant might use physical force
against her.
Id.
Finally, the consideration of psychological circumstances is consistent
with academic commentary examining the issue. Some scholars have opined
the definition of “force” should include psychological force akin to
parameters set out in contract law. Ann T. Spence, A Contract Reading of
Rape Law: Redefining Force to Include Coercion, 37 Colum. J.L. & Soc.
20
Probs. 57, 57 (2003) [hereinafter Spence] (suggesting contract theory be
extended to criminal law definition of “force”); see also James T. McHugh,
Interpreting the “Sexual Contract” in Pennsylvania: The Motivations and
Legacy of Commonwealth of Pennsylvania v. Robert A. Berkowitz, 60 Alb. L.
Rev. 1677, 1686 (1997). In Bolsinger, we held “[f]raud in fact vitiates
consent” to sex. Bolsinger, 709 N.W.2d at 564. Similarly, contract
principles applicable to finding adequate agreement between people in other
situations may aid in understanding whether there has been an equal
agreement to sex. Spence, 37 Colum. J.L. & Soc. Probs. at 57; see also
Susan Estrich, Rape, 95 Yale L.J. 1087, 1120 (1986) (urging adoption of
standard that prohibits fraud to procure sex as contract law forbids fraud to
procure money). For example, “the doctrine of undue influence proscribes
the use of emotional or psychological force as a means of unfair persuasion
in a close relationship. . . . [and] [t]he doctrine of unconscionability can void
contracts that are unfair or reflect an imbalance in bargaining power.”
Spence, 37 Colum. J.L. & Soc. Probs. at 70. While there are also significant
differences between rape and illegal contracts, the doctrines may be
nevertheless helpful as a guide for conceptualizing the important freedom of
each individual to consent to sex that is protected by Iowa Code chapter 709.
Id. at 75.
Considering the legislative history of Iowa’s sexual abuse statute, the
language and purpose of the statute, our prior cases interpreting the statute,
and the persuasive authority from other jurisdictions and scholars on the
topic, we conclude psychological force or inability to consent based on the
relationship and circumstance of the participants may give rise to a
conviction under the “against the will” element of section 709.4(1). This
statutory element considers all circumstances that establish actual
nonconsent, including any psychological circumstances particular to the
21
participants. Thus, we turn to consider the facts in this case to decide if the
evidence was sufficient to support a conviction. In doing so, we follow our
long-standing admonition to review the evidence in a light most favorable to
upholding the verdict. State v. Kraklio, 560 N.W.2d 16, 17 (Iowa 1997).
In assessing the evidence in this case, we note section 709.4(1) does
not require evidence of both force and lack of consent, but one or the other.
Iowa Code § 709.4(1). Nevertheless, meaningful consent is the important
inquiry, and this inquiry normally takes into account circumstances
indicating any overreaching by the accused, together with circumstances
indicating any lack of consent by the other person.
In this case, the State’s expert, Dr. Hutchison, rendered an opinion
based on the facts and inferences from the evidence established at trial that
a person in Mindy’s situation would have been unable to consent to a sex act
with Meyers. Expert testimony may be used to assist a fact finder in
determining a victim’s state of mind as long as the expert does not testify to
the ultimate fact of the defendant’s guilt or innocence. See State v. Griffin,
564 N.W.2d 370, 374–75 (Iowa 1997) (recognizing evidence of battered
women’s syndrome from expert is admissible to show psychological reason
for victim’s recanting of accusation and refusal to testify against defendant);
see also State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997) (holding expert
witnesses “may express opinions on matters explaining the pertinent mental
and physical symptoms of the victims of abuse” if expert testified about the
effects of the victim’s mental condition on her ability to tell the truth); State
v. Gettier, 438 N.W.2d 1, 6 (Iowa 1989) (approving expert testimony linked to
an explanation of PTSD and the typical reaction of a rape victim); State v.
Chancy, 391 N.W.2d 231, 234 (Iowa 1986) (noting in third-degree sex abuse
trial that “there seems to be no question about the potential of psychological
evidence in the present case to assist the trier of fact[, and] [t]he victim’s lack
22
of mental capacity is . . . key element in the crime charged”). We give the
district court’s assessment of the credibility of Dr. Hutchison’s opinion
regarding Mindy’s mental state considerable deference. In re Det. of Barnes,
689 N.W.2d 455, 457 (Iowa 2004).
Based on the history between Meyers and Mindy, together with the
expert testimony at trial assessing all the surrounding facts and
circumstances in this case, we conclude substantial evidence supports the
finding by the district court that the sex acts were performed at a time when
Mindy was unable to consent to sex with him. Meyers did not challenge the
admissibility of the expert testimony, only that it was insufficient to support
a conviction. Yet, all the facts and circumstances presented at trial,
including the expert testimony, were sufficient for a fact finder to infer the
sex acts were nonconsensual.
There was evidence that Meyers pursued and engaged in a sexual and
romantic relationship with his high-school-age stepdaughter while she was
in a very vulnerable psychological state. Her vulnerability was not only due
to her crack cocaine addiction, her estrangement from her mother, and her
need for support and shelter, but it was also based on the history of sexual
and physical abuse inflicted by Meyers in the past. In addition to Mindy’s
condition, Meyers was a controlling person and Mindy’s father figure. All the
circumstances together, including the disparity in age between Meyers and
Mindy, the background and history of their relationship, the authority
exercised by Meyers, the circumstances leading up to the establishment of a
romantic relationship, and Dr. Hutchison’s opinion concerning the inability
of Mindy to consent in light of all the circumstances, support a finding that
23
the sex acts engaged in between Meyers and Mindy were “by force or against
the will” of Mindy. 6
IV. Sufficient Evidence of Lascivious Conduct with a Minor.
To support the charge of lascivious conduct with a minor, the State
must show (1) Meyers was over eighteen years old; (2) Meyers was in a
position of authority over Mindy; (3) Mindy was under the age of eighteen;
and (4) Meyers forced, persuaded, or coerced Mindy to disrobe or partially
disrobe for the purpose of satisfying the sexual desires of either of them.
Iowa Code § 709.14. Meyers argues there was insufficient evidence to
establish he forced Mindy to “disrobe or partially disrobe” for the purpose of
satisfying his sexual desires. The State presented evidence of Meyers’ age
and of Mindy’s age as well as evidence that Meyers was Mindy’s father figure
from the time Mindy was six years old and that he was the “controlling
figure” in the home at that time. It also presented Meyers’ March 11 letter
describing Mindy’s body, along with the testimony of witnesses supporting
the existence of a sexual relationship between Mindy and Meyers. For the
same reasons we find substantial evidence exists to show Meyers performed
sex acts against Mindy’s will, we also find the district court did not err in
6Meyers argued on appeal that inclusion of psychological factors to negate consent in
the “mental defect or incapacity” category of sexual abuse would render the statute too
broad and presents a serious danger of overcriminalization of sexual relationships viewed
socially unacceptable but not intended to be punished under the statute. While we do not
address the argument as it pertains to the mental defect or incapacity category, we
recognize the same concern has been voiced with regard to an “against the will of” standard
as well. See Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the
Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 1780, 1792 (1992)
(advising against application of a broad definition of lack of consent to avoid “the sweeping
criminalization of sex”); see also Model Penal Code § 213.1 cmt. 4, at 302 (noting an
overemphasis on nonconsent may unintentionally overbroaden the law). While this claim
might have appeal under different facts, it does not under the specific facts and
circumstances of this case. The facts of this case fall within Iowa’s criminal statute
prohibiting sex acts “by force or against the will of the other.”
24
finding sufficient evidence Meyers coerced Mindy to disrobe to satisfy his
sexual desires.
V. Meyers’ Pro Se Claim.
Meyers has filed a pro se brief in this case, asserting the district court
erred by failing to rule on a motion to dismiss in this case. Meyers claims
this failure violated his constitutional right to due process. No motion to
dismiss appears in the record before us on this case. Issues on appeal not
raised in the district court are deemed waived. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Consequently, we do not address a violation
of Meyers’ constitutional right to due process.
VI. Conclusion.
After consideration of all the issues presented for our review, we affirm
the judgment and sentence of the district court and affirm the decision of the
court of appeals.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.