State v. Wm. Henry Barney ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1996 SESSION
July 23, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9509-CR-00317
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. WALTER C. KURTZ,
WILLIAM HENRY BARNEY, ) JUDGE
)
Appellant. ) (Rape of a Child, Aggravated
) Sexual Battery, and Sentencing)
DISSENT
I respectfully disagree with the majority’s holding that the counts of the
indictment alleging rape of a child are constitutionally adequate. The indictment does not
meet constitutional muster because it fails to allege the defendant’s mens rea, an
essential element of the crime. The author of the lead opinion states, “Upon only a
cursory reading of the indictment, any person of normal intelligence would realize that the
only sound implication of the factual allegations is that these acts were at least reckless,
if not knowing or intentional.” I contend that the only sound implication of the factual
allegations is that these acts were perpetrated without the victim’s consent and that they
say nothing about the defendant’s mens rea.
To begin, I remind my brethren on the Court that one of the stated
objectives of our criminal code is to “Give fair warning of what conduct is prohibited, and
guide the exercise of official discretion in law enforcement, by defining the act and the
culpable mental state which together constitute an offense.” T.C.A. § 39-11-101(2) (1991
Repl.) (emphasis added). See also T.C.A. § 39-11-301(b) (1991 Repl.) (“A culpable
mental state is required within this title unless the definition of an offense plainly
dispenses with a mental element.”) The act which is prohibited by the rape of a child
statute is unlawful sexual penetration. T.C.A. § 39-13-522(a)(Supp. 1996). The culpable
mental state which must have been possessed by the defendant at the time he
committed the unlawful sexual penetration is intent, knowledge or recklessness. T.C.A.
§ 39-11-301(c) (1991 Repl). Thus, the factual allegations which must be set forth in an
indictment charging rape of a child are that the defendant committed unlawful sexual
penetration with intent, knowledge or recklessness.
As noted by the majority, the term “sexual penetration” is legislatively
defined as including “any . . . intrusion, however slight, of any part of a person’s body or
of any object into the genital or anal openings of the victim’s, the defendant’s, or any
other person’s body . . . ” T.C.A. § 39-13-501(7) (1991 Repl). Unlike the term “sexual
contact,” T.C.A. § 39-13-501(6), the definition of sexual penetration contains no
requirement that the intrusion be intentional. Nor does it require that the penetration be
for the purpose of sexual arousal or gratification as does the definition of sexual contact.
Id. Thus, as further noted by the majority, the definition of sexual penetration does not
include any description of the necessary mens rea. Indeed, one panel of this Court has
previously held, “a reference to sexual penetration, as statutorily defined, does not imply
the mens rea.” State v. Milton S. Jones, Jr, No. 02C01-9503-CR-00061, Shelby County
(Tenn. Crim. App. filed Mar. 7, 1997, at Jackson). Rather, the definition of sexual
penetration is aimed at describing particular acts, and is broad enough to include
completely accidental and totally innocent intrusions: for instance, a mother bathing her
infant may find one of her fingers accidentally intruding into the baby’s anal opening as
she lifts him from the bathwater. Such an intrusion, “however slight,” would meet the
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statutory definition of sexual penetration. The definition also includes intentional
intrusions that are clearly lawful. For example, a nurse taking a child’s temperature
rectally would satisfy the statutory definition of sexual penetration. While there is no
question that our legislature did not intend these acts to constitute rape of a child, the
plain meaning of the defining statute does encompass them within the rubric of “sexual
penetration.”
How, then, are we to distinguish between innocent and criminal acts of
sexual penetration? The child rape statute proscribes “unlawful” sexual penetration.
T.C.A. § 39-13-522(a) (Supp. 1996). Clearly, then, our legislature intended this word to
differentiate between child molestation and, for instance, legitimate medical treatment.
The differentiation is not based, however, on the defendant’s mental state: as seen in
the examples above, sexual penetration can occur intentionally, knowingly or recklessly
and still be perfectly innocent. Thus, construing the term “unlawful” to imply the requisite
state of mind held by the defendant does nothing to distinguish innocent from criminal
activity.
I suggest the term “unlawful” should be construed to mean “without
consent.” Cf. State v. Jones, 889 S.W.2d 225, 227 (Tenn. Crim. App. 1994) (“the term