State v. Solander (Dwight) C/W 67711

IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 67710
Appellant,
vs.
DWIGHT CONRAD SOLANDER,
Respondent.
THE STATE OF NEVADA, No. 67711
Appellant,
vs.
JANET SOLANDER,
Respondent.
FILED
APR 1 9 2016
TRADIE K. LINDEMAN
CLERK OF , SUPREME COU
ORDER OF REVERSAL AND REMAND EY •
DEPUTY CLEW
These are consolidated appeals from district court orders
granting respondents' pretrial petitions for writ of habeas corpus. Eighth
Judicial District Court, Clark County; Valerie Adair, Judge.
Pretrial writs of habeas corpus may be granted if a district
court determines "that an affirmative defense exists as a matter of law
based solely on its review of the transcript of a preliminary hearing."
Sheriff, Clark CV. v. Roylance, 110 Nev. 334, 338, 871 P.2d 359, 361
(1994). If a district court's conclusions of law are based on its
interpretation of a statute, this court reviews those conclusions de novo.
Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402, 405 (2014). Here,
we are asked to decide whether, as a matter of law, the district court erred
in concluding that the insertion of a catheter into the urethra of a minor
under the age of 14 cannot constitute sexual assault. We reverse and
remand.
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I.
In March 2014, the State charged the Solanders with child
abuse and endangerment and with sexually assaulting their three foster
daughters. At the preliminary hearing, the three girls testified that the
Solanders catheterized them as a form of punishment for urinary
incontinence, with threats to mutilate their genitals with a razor blade if
they resisted the catheterization and diel not stop soiling themselves. The
Solanders filed pretrial petitions for writ of habeas corpus alleging that, as
a matter of law, inserting a catheter into a child's urethra cannot
constitute sexual assault under NRS 200.366. The Solanders denied
catheterizing the girls but argued that, even if they did catheterize them,
they did so for a legitimate medical purpose and without sexual
motivation. The district court granted the petitions, concluding that "it is
not within the statutory meaning or legislative intent for the insertion of a
catheter to meet the elements of Sexual Assault."
Two statutes are at issue in this case: NRS 200.366 and NRS
200.364. NRS 200.366 defines "sexual assault," while NRS 200.364
defines "sexual penetration." NRS 200.366(1) defines sexual assault in
terms of sexual penetration:
A person who subjects another person to sexual
penetration, or who forces another person to make
a sexual penetration• on himself or herself or
another, or on a beast, against the will of the
victim or under conditions in which the
perpetrator knows or should know that the victim
is mentally or physically incapable of resisting or
understanding the nature of his or her conduct, is
guilty of sexual assault.
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NRS 200.364(5) defines sexual penetration, as used in NRS 200.366, to
mean "cunnilingus, fellatio, or any intrusion, however slight, of any part of
a person's body or any object manipulated or inserted by a person into the
genital or anal openings of the body of another, including sexual
intercourse in its ordinary meaning." (Emphases added.) In 2015, the
Legislature amended NRS 200.364(5) to add a final sentence stating that
"[t]he term [sexual penetration] does not include any such conduct for
medical purposes." 2015 Nev. Stat., ch. 399, § 7, at 2235.
To the State, the language of NRS 200.366 and 200.364 is
plain, clear, and unambiguous. Thus, the State argues that its allegations
that the Solanders inserted a catheter into the urethra of each of the girls
without their consent are sufficient to sustain charges of sexual assault.
The Solanders counter that the acts "were not sexually motivated" but
rather were undertaken for a "legitimate medical purpose." The State
offers two responses to the Solanders' arguments. First, the definitions of
sexual assault and sexual penetration do not include a requirement that
the penetration be sexually motivated. Second, because sexual assault
requires a showing of general intent—not strict liability as the Solanders
suggest with their "per se penetration" arguments—the purpose of the
penetration presents a question of fact for the jury to decide, not the court.
We agree with the State.
A.
Neither the definition of "sexual assault" nor the definition of
"sexual penetration" includes an element of sexual motivation or
gratification. See NRS 200.364(5); NRS 200.366. Because NRS 200.364(5)
and 200.366 are unambiguous, the plain language of the statutes control,
and we give that language its ordinary meaning. See City Council of Reno
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v. Reno Newspapers, Inc., 105 Nev. 886, 891, 784 P.2d 974, 977 (1989)
("When the language of a statute is plain and unambiguous, a court should
give that language its ordinary meaning and not go beyond it.").
Comparing the statutory provision making sexual seduction a
crime with the sexual assault statutes confirms our reading of the latter.
In contrast to sexual assault, the offense of statutory sexual seduction
expressly requires sexual motivation in addition to sexual penetration.
See NRS 200.364(6) (2013) ("Statutory sexual seduction' means: . . . (b)
Any other sexual penetration committed by a person 18 years of age or
older with a person under the age of 16 years old with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires
of either of the persons." (emphasis added))) Because the Legislature
included an element of sexual motivation in its definition of statutory
sexual seduction but did not do so in its definitions of sexual assault or
sexual penetration, "it should be inferred that the omission was
intentional." In re Christensen, 122 Nev. 1309, 1323, 149 P.3d 40, 49
(2006) ("One basic tenet of statutory construction dictates that, if the
legislature includes a qualification in one statute but omits the
qualification in another similar statute, it should be inferred that the
omission was intentional.").
The fact that "sexual" modifies "assault" and "penetration in
NRS 200.364(5) and NRS 200.366 does not, as the Solanders suggest,
impliedly require sexual motivation; the more reasonable reading,
especially given the Legislature's express articulation of a sexual
'In 2015, the Legislature amended the definition of "statutory sexual
seduction." We quote the pre-2015 version in the text. See 2015 Nev.
Stat., ch. 399, § 7, at 2235.
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motivation requirement in NRS 200.364(6) for sexual seduction, is that
the word "sexual" as used in NRS 200.364(5) and NRS 200.366 references
the body parts involved, not motivation. Cf. United States v. JDT, 762
F.3d 984, 1001 (9th Cir. 2014) (rejecting argument that statute penalizing
certain "sexual acts" required sexual motivation and holding that "sexual
act" as a defined term referred to the body parts involved not the actor's
motivation). Therefore, under the plain language of the statutes, "sexual
assault" and "sexual penetration" do not require sexual gratification or
motivation as their object for the crime of sexual assault to occur. See also
Buffalo v. State, 111 Nev. 1139, 1144, 901 P.2d 647, 650 (1995) (rejecting
as a "totally incorrect legal supposition" the suggestion "that no valid
judgment of conviction [for sexual assault] could be entered . . . absent
proof of sexual motivation on [the defendant's] part") (plurality). 2
The Solanders argue that a literal reading of NRS 200.364(5)
and NRS 200.366 produces an absurd result, for it "criminalize[s] every
doctor, nurse, or parent who must, for example, insert a finger inside a
child's rectum to dislodge a stoppage caused by constipation or to clean
areas soiled by dirty diapers or insertion of a suppository." On this basis,
the Solanders urge this court to apply the rule of lenity to NRS 200.364's
definition of sexual penetration. But "ambiguity is the cornerstone of the
rule of lenity, [and] the rule only applies when other statutory
interpretation methods, including the plain language, legislative history,
2 Thisinterpretation is consistent with the legislative history of NRS
200.364 and 200.366, which discussed rape and sexual assault as crimes of
violence, not sex, finding that sexual assault is committed primarily for
power, then for anger, and finally, in a small number of cases, for sexual
gratification. Hearing on S.B. 412 Before the Senate Judiciary Comm.,
59th Leg. (Nev., April 5, 1977).
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reason, and public policy, have failed to resolve a penal statute's
ambiguity." State v. Lacer°, 127 Nev. 92, 99, 249 P.3d 1226, 1230 (2011)
(internal citations and quotations omitted). We decline to apply the rule of
lenity because the statutory definitions of "sexual assault" and "sexual
penetration" are not ambiguous.
B.
The Solanders argue, and the district court agreed, that the
insertion of a catheter into the urethra to void the bladder for legitimate
medical purposes should not constitute sexual assault as a matter of law
and sound public policy. 3 The Solanders point to the 2015 amendments to
NRS 200.364, which added the proviso that "[tie term [sexual
penetration] does not include ... conduct [involving penetration] for
medical purposes." 2015 Nev. Stat., ch. 399, § 7, at 2235. This
amendment brought NRS 200.364(5) and NRS 200.366 into line with
statutes in at least 14 other states that have• similar bona Me medical
purpose exceptions in their sexual assault statutes. See Model Penal Code
§ 213.06 comment on Sexual Assault and Related Offenses (Am. Law Inst.,
Discussion Draft No. 2, 2015) (discussing proposed § 213.06, which
3 Janet also asserts that the alleged conduct does not constitute
sexual assault based on her attempt to distinguish the urinary opening, or
urethra, from one's genital opening. Penetration of the urethra, however,
is encompassed under NRS 200.364's definition of "sexual penetration."
See NRS 200.364(5) (stating "genital or anal opening" under definition of
sexual penetration); see Tyler v. State, 950 S.W.2d 787, 789 (Tex. Ct. App.
1997) (upholding sexual assault charge after concluding that urethra is
included in the female genitalia, which is all the statute requires); see also
People v. Quintana, 108 Cal. Rptr. 2d 235, 238 (Ct. App. 2001) ("[A]
'genital' opening is not synonymous with a 'vaginal' opening. „ . The
vagina is only one part of the female genitalia, which also include inter
alia the labia majora, labia minor, and the clitoris.").
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provides that otherwise criminal "sexual penetration" does not occur if
"done for bona fide medical, hygienic, or law enforcement purposes," and
noting that statutes in 14 states have some form of this exception).
The 2015 amendment to NRS 200.364(5), adding an express
"medical purpose" exception to Nevada's sexual assault statute, does not
apply to the Solanders' alleged conduct, which occurred before its effective
date. See 2015 Nev. Stat., ch. 399, § 27, at 2245 (stating that the
amendatory provisions of NRS 200.364(5) "apply to an offense that is
committed on or after October 1, 2015"). Nonetheless, as the State itself
suggests, sexual penetration that is proven to have been undertaken for a
bona fide medical purpose, as when a doctor assists an unconscious
woman in delivering a baby, may not establish the crime of sexual assault,
either because consent to the penetration is implied under such
circumstances, see NRS 200.366(1) (the penetration must be "against the
will of the victim"), because the criminal law generally requires mens rea,
see NRS 193.190, 4 or because the defense of necessity applies. 5
193.190 provides: "In every crime or public offense there must
4 NRS
exist a union, or joint operation of act and intention, or criminal
negligence." (Emphasis added.) The State agrees with this interpretation,
placing the burden of proving the requisite mens rea on the State, which
can be negated by the defense of a legitimate medical purpose. See People
v. Burpo, 647 N.E.2d 996, 998 (Ill. 1995) (holding that a gynecologist's
"good faith will protect him from criminal sanctions," and requiring the
State to "prove that the gynecologist possessed a mental state of intent,
knowledge, or recklessness," which the gynecologist can rebut).
State asserts consent, lack of mens rea, and necessity as
5 The
possible defenses or theories the Solanders may argue at trial, depending
on proof. At this stage in the proceedings, none of these defenses or
theories were argued and developed below, precluding this court from
continued on next page...
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Indeed, such has been the holding of other state courts that
have interpreted statutes that, like NRS 200.364(5) and NRS 200.366
before their 2015 amendment, did not include an express bona fide
medical purpose exception. E.g., State v. Lesik, 780 N.W.2d 210, 214 (Wis.
Ct. App. 2009) ("It would be equally absurd to imagine the legislature
intended to include legitimate medical, health care and hygiene
procedures within the bounds of 'sexual intercourse' for the assault of a
child statute. . .. Accordingly, . . . 'sexual intercourse' as used in the sexual
assault of a child statute does not include 'bona fide medical, health care,
and hygiene procedures."); see also Roberson v. State, 501 So. 2d 398, 400
(Miss_ 1987) ("Although, on its face, the definition of sexual penetration
announced in § 97-3-97 encompasses any penetration, the Court holds the
parameters of the definition of sexual penetration are logically confined to
activities which are the product of sexual behavior or libidinal
gratification, not merely the product of clinical examinations or domestic,
parental functions.").
We thus agree that, if the Solanders undertook the
catheterization for a bona fide medical purpose, they may avoid criminal
liability under NRS 200.366. The problem is, though, that the question is
not just a question of law, but also one of fact. In this case, as the State
asserts, evidence adduced at [the] preliminary hearing illustrated that
the catheters were used as a form of punishment, not for any medical use."
Accordingly, we disagree with the Solanders that the insertion of a
catheter into the urethra cannot constitute sexual assault as a matter of
...continued
adopting them as a matter of law and circumventing the jury's role in
deciding questions of fact.
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law because, while a catheter has a medical purpose, it does not
necessarily follow that it was used for legitimate medical purposes. The
reasons why a catheter was used, and the manner in which it was used,
are questions of fact for the jury, not the court, to decide. See State v.
Preston, 30 Nev. 301, 308, 97 P. 388, 388 (1908) ("[Judges shall not charge
juries in respect to matters of fact." (internal quotation omitted)); see also
Winnerford Frank H. v. State, 112 Nev. 520, 526, 915 P.2d 291, 294 (1996)
(holding the State must prove the required mens rea to commit sexual
assault beyond a reasonable doubt as it is a general intent crime).
The district court erred when it held, as a matter of law, that
the insertion of a catheter into the urethra of a minor under the age of 14
cannot, under any circumstances, constitute sexual assault. Here, the
preliminary hearing testimony provides probable cause to support the
charges of sexual assault, and the law does not prohibit the State from
proceeding with these charges. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
/ frea.4; J.
Hardesty
11 .■••••■". J.
Saitta
, J.
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cc: Hon. Valerie Adair, District Judge
Attorney General/Carson City
Clark County District Attorney
Mueller Hinds & Associates
Eighth District Court Clerk
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