People v. Bristol

115 Mich. App. 236 (1981) 320 N.W.2d 229

PEOPLE
v.
BRISTOL

Docket No. 49157.

Michigan Court of Appeals.

Decided December 2, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Assistant Prosecuting Attorney, for the people.

Kurt R. Thornbladh, for defendant.

Before: T.M. BURNS, P.J., and D.E. HOLBROOK, JR., and K.B. GLASER,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from a jury conviction of first-degree criminal sexual conduct. MCL 750.520b; MSA 28.788(2).

The victim, a four-year-old girl, in response to questioning by the attending doctor, said that defendant's penis actually went inside and she had experienced a great deal of pain at that time in the area of the vagina. There was an abrasion of the labia minora. The hymenal ring was intact, but according to the testimony this would not necessarily rule out "penetration". Testimony was introduced to show that "penetration" of the vagina to a physician would require an entry into the "introit" [sic] of the vagina which lies past the labia minora, and this could neither be confirmed nor refuted in the instant case. The testimony also established that the sensations described by the child could be caused by something less than an entry into the "introit" [sic] of the vagina. Defendant alleges there is no evidence of "intrusion, however slight, * * * into the genital * * * openings" to support the jury's verdict. MCL 750.520a(h); MSA 28.788(1)(h).

There appears to be no definition of "penetration" in Michigan case law with regard to sexual acts. The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Dussia v Monroe County Employees Retirement System, 386 Mich. 244, 248; 191 NW2d 307 (1971), Van Antwerp v State, 334 Mich. 593, 600; 55 NW2d 108 (1952). The words of a statute are to be given their ordinary meaning unless it appears from the context or otherwise in the statute that a different sense was intended. Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich. 465, 480; 242 NW2d 3 (1976), Hammons v Franzblau, 331 Mich. 572, 574; 50 NW2d 161 (1951). A reasonable construction should give consideration to the purpose of a statute and the object sought to be accomplished. King v Director, Midland County Dep't of Social Services, 73 Mich. App. 253, 258; 251 NW2d 270 (1977).

One object of the Legislature in providing for degrees of criminal sexual conduct was to differentiate between sexual acts which affected only the body surfaces of the victim and those which involved intrusion into the body cavities, in the instant case the female "genital opening". In view of the fact that the penetration of the labia majora is beyond the body surface, a definition of the female genital opening that excluded the labia would be inconsistent with the ordinary meaning of female genital openings. The fact that the Legislature used "genital opening" rather than "vagina" indicates an intent to include the labia. Such a definition is also consistent with that in most other jurisdictions. See 76 ALR3d 163, § 3, p 178.

Defendant's conviction is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.