Slobodian v. State

OPINION

Per Curiam:

This is an appeal from a judgment of conviction pursuant to a jury verdict of two counts of statutory sexual seduction. Appellant contends that Count V of which he was convicted failed to state a crime. Appellant further contends that all the elements of statutory sexual seduction were not proven by the prosecution.

Appellant Robert Alan Slobodian was accused of sexually assaulting a fifteen-year-old runaway girl, on or about May 3, 1987. Slobodian gave the girl a ride to his apartment complex as a favor for some mutual friends that she was going to see. The girl went to Slobodian’s apartment to help Slobodian get some things needed to have a barbecue with their friends. While the girl drank a wine-cooler, the two discussed the making of a movie about a sixteen-year-old girl who had sexual relations with her stepfather.

The girl testified that she was then held in the apartment against her will for more than seven hours. During these hours Slobodian allegedly assaulted her four separate times. The girl testified that Slobodian removed her clothes and rubbed lubricant on her vagina, penetrating her vagina with his finger. Slobodian then allegedly inserted a dildo into the girl’s vagina, moving it in and out. She also testified that Slobodian inserted a warm curling iron into her vagina. Finally the girl testified that Slobodian put his penis in her mouth against her will. She testified that all these acts were done against her will and that each time she tried to scream or resist Slobodian would hit or choke her.

After a jury trial on four counts of sexual assault and four counts of statutory sexual seduction, Slobodian was found not guilty of all four counts of sexual assault and two counts of statutory sexual seduction. Slobodian was found guilty of counts V and VIII, both for statutory sexual seduction.

To be convicted of statutory sexual seduction¹ one must have engaged in one of four specifically described sexual acts, namely, “ordinary sexual intercourse, anal intercourse, cunnilingus, or fellatio.” Count V charges a sexual act other than the four specified in the statute, namely, digital penetration of the girl’s vagina. Why the legislature limited the crime of sexual seduction to the four sexual acts set forth in the statute is not clear. What is clear is that Slobodian committed none of the four and that he cannot, therefore, be convicted for violation of this statute for digital penetration, and the Count V conviction must be vacated.

With regard to the Count VIII conviction of sexual seduction, there is a failure to prove an essential statutory element. There are three elements of the offense of statutory sexual seduction:

1. Commission of one of the four sexual acts mentioned.

2. The act must be committed “with a consenting person.”

3. The consenting person must be “under the age of 16 years.”

The second listed element, “with a consenting person,” was not and could not have been proven in this case. Throughout the preliminary examination and at trial, it was always the position of the state’s attorney and of the complaining witness that the girl had been raped, that she was forcibly assaulted and forced to submit to sexual penetration. The victim testified repeatedly that she did not consent to the acts and that when she told Slobodian “no” he choked her with his hands. Absolutely no evidence was presented at trial by either side which would tend to show that the victim consented to the acts.

NRS 200.364 clearly calls for the act to have been committed on a “consenting person.” Based upon a plain reading of the statute, consent of the victim is a necessary element of the crime of statutory sexual seduction which must be proven by the prosecution.² It is well settled that in order to obtain a conviction the prosecution must prove every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979), reh’g denied, 444 U.S. 890 (1980); Hass v. State, 92 Nev. 256, 548 P.2d 1367 (1976); State v. Lima, 643 P.2d 536 (Haw. 1982); State v. Gratzer, 682 P.2d 141 (Mont. 1984); State v. Chouinard, 634 P.2d 680 (N.M. 1981).

In the case at bar the prosecution failed to produce any evidence which tended to show consent on the part of the victim; to the contrary, the prosecution vigorously argued that the acts were performed against the victim’s will and that she did not consent in any manner. Accordingly, we conclude that evidence of a specific element of the crime of statutory sexual seduction was not presented. We therefore reverse the defendant’s convictions under both Count V and Count VIII.

1 NRS 200.364(3) provides:

3. “Statutory sexual seduction” means ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio committed by a person 18 years of age or older with a consenting person under the age of 16 years.

2 Prior to 1967, the statutory rape law (the predecessor to statutory sexual seduction) in Nevada did not call for a consenting victim. Prior to 1967, NRS 200.360 included in the definition of rape the following:

Any person of the age of 16 years or upwards who shall have carnal knowledge of any female child under the age of 18 years, either with or without her consent, shall be adjudged guilty of rape and punished as before provided.

(Emphasis added.)

Traditionally statutory rape was treated as any rape and the consent of the victim was irrelevant. If the victim was under the mandated age the act was rape regardless of consent. In 1967, the legislature adopted a specific definition of statutory rape which included the phrase, “with her consent.” This language of consent was subsequently continued in the current statute which was adopted in 1977 (“consenting person”).

It is presumed that the legislature believed that the language of consent did not pose a problem because if the victim did not consent, the perpetrator would be guilty of sexual assault which contains no language of consent and applies to any victim regardless of age. Unfortunately, a problem is created when it appears there is no consent, but the issue is not entirely clear.

Had it not been for the described statutory change, Slobodian could have been convicted of statutory rape, whether the girl had consented or not. Under the present statutory scheme, however, a charge of forcible, noncon-sensual sexual assault is incompatible with a charge of non-forcible consensual statutory sexual seduction. The prosecution, understandably, relied on the statement of the victim in this case and pursued the charges on the basis of forcible rape. The state cannot pursue this course and then expect the accused to answer to charges which are based on consent rather than forcible sexual activity.