Commonwealth v. Wilbur W.

479 Mass. 397

95 N.E.3d 259

COMMONWEALTH

v.WILBUR W., a juvenile.

SJC–12351

Supreme Judicial Court of Massachusetts, Essex..

Argued January 10, 2018

Decided April 25, 2018

Joseph Maggiacomo, III, Quincy, for the juvenile.

Marina Moriarty, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae: Yale Yechiel N. Robinson, pro se.

Robert F. Hennessy, Springfield & Merritt Schnipper for Youth Advocacy Division of the Committee for Public Counsel Services.

Gary D. Buseck, Boston, Bennett H. Klein, & Patience Crozer for GLBTQ Legal Advocates & Defenders & another.

Marsha L. Levick, Riya S. Shah, & Lisa Swaminathan, of Pennsylvania, for Juvenile Law Center & another.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

The crime of statutory rape, G. L. c. 265, § 23, is a strict liability offense. To prove statutory rape, the Commonwealth is required to establish that the accused had sexual intercourse with a person who was less than sixteen years old at the time. See Commonwealth v. Bernardo B., 453 Mass. 158, 172, 900 N.E.2d 834 (2009). As a matter of law, a person below the age of sixteen is deemed incapable of consenting to sexual intercourse. Therefore, lack of consent is not an element of the offense, and the intent of the accused is not relevant. See G. L. c. 265, § 23 ; Commonwealth v. Miller, 385 Mass. 521, 522, 432 N.E.2d 463 (1982). When two minors have consensual sexual relations, both of whom are members of the class the statute is designed to protect, each has committed a statutory rape. This case requires us to decide whether, as applied to a juvenile offender under the age of sixteen, a conviction of statutory rape was constitutional, where the juvenile maintains that he was involved in consensual sexual experimentation with another child.

In 2009, a delinquency complaint issued against the juvenile, charging him with two counts of rape of a child by force, G. L. c. 265, § 22A, and dissemination of child pornography, G. L. c. 272, § 29B. At the time of the alleged offenses, the juvenile was twelve years old and the victim was eight years old. Following a trial in the Juvenile Court, a jury found the juvenile delinquent on the lesser included offenses of statutory rape. The juvenile filed a notice of appeal from the adjudication of delinquency, and we allowed his motion for direct appellate review.

The juvenile contends that enforcement of the strict liability statutory rape charge against him violates his Federal and State constitutional rights to due process and equal protection. He argues that imposition of criminal liability on a child for a strict liability offense, where the premise of the offense is that a child under sixteen lacks the capacity to understand and consent to the conduct, is fundamentally unfair. The juvenile maintains that a child under sixteen cannot be deemed to understand and assume the legal risks of engaging in sexual activity with another child under the age of sixteen, as the statute requires of an adult, and that the imposition of criminal responsibility for peer-aged sexual experimentation is contrary to the statutory purpose of protecting children from sexual abuse. He also argues, for the first time on appeal, that he should have been considered a victim of statutory rape, and that the government wrongfully singled him out for prosecution. The issues the juvenile raises as to experimentation among consenting juveniles are not before us in this case, where the victim testified that he was afraid and felt compelled to comply with the juvenile's demands. Accordingly, we conclude that, as applied in these circumstances, enforcement of the statutory rape charge is constitutional, and affirm the adjudication of delinquency.¹

1. Background. To determine whether statutory rape is constitutional, as applied to the juvenile's conduct, we examine the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Oakes, 407 Mass. 92, 95, 551 N.E.2d 910 (1990) ; Commonwealth v. Bohmer, 374 Mass. 368, 370, 372 N.E.2d 1381 (1978). In the summer of 2009, the victim was an eight year old third grader, who lived with his father in a city near Boston. The victim met the juvenile, who was twelve years old and a seventh grader, when the victim moved into the neighborhood earlier that year. The victim and the juvenile became friends. They played together at the park and with other children in the neighborhood, and they played video games at the victim's apartment. Carol,² who had been friends with the victim's mother, was his live-in caretaker. Carol also watched the juvenile on occasion, and the juvenile referred to her as "Grammy."

On August 10, 2009, as he had on previous occasions, the juvenile visited the victim for a sleepover while the victim's father was working a late shift. During the evening, the victim and the juvenile went into the victim's bedroom to play a video game. While both boys were on the bed taking turns using the video game controller, the juvenile told the victim to stand next to a bureau. The bureau, which was "the same height as [the victim], maybe a little bit taller," was positioned on an interior wall adjacent to the bedroom door, such that, when standing in the space next to the bureau, the two boys were not visible from the doorway. The victim did not want to do this, but complied because the juvenile told him to do it.

The juvenile instructed the victim to "pull down [his] pants" so that he could put his "penis" in the victim's "butt." The victim was "shivering" and "scared." He testified:

Q.: "And what did you think or feel when he told you that?

A.: "Like, I was kinda like shivering, like, scared."

Q.: "Okay. And why were you scared?"

A.: " Because I didn't, like—because I was, like, I didn't like, like—like, I was scared because—"

Q.: "Did you want to do that?"

A.: "No."

The juvenile pulled down his own pants, and told the victim to put his mouth on the juvenile's penis. The victim complied for "two seconds" because the juvenile was "bigger," and he was afraid of what the juvenile would do to him. The juvenile then inserted his penis in the victim's "butt." The victim testified that it hurt, and he almost cried.³

Because the boys were too quiet, Carol announced she was entering the room to check on them. The juvenile told the victim to get on the bed. Both boys pulled up their pants and sat on the bed. When Carol entered the room, she found them sitting on the bed playing the video game. The victim did not say anything to Carol that night because he did not want the juvenile to punch him.

The victim's father drove the victim to day camp the next morning. Before leaving for camp, the victim ran into Carol's room to say goodbye, and she took his cellular telephone. Later, she found a photograph of a boy's penis on the cellular telephone. When Carol picked up the victim from camp, she asked him about the photograph. The victim told her that the juvenile had taken it. Carol initially scolded the victim for having inappropriate photographs on his telephone, and told him that he "could get into a lot of trouble." During the drive home, the victim asked, "Well, what does it mean when someone tries to put their private into your butt?" Carol asked if someone had done that to him. The victim "shook his head yes." Carol asked, "Who?" The victim answered that it was the juvenile. Carol reported the victim's statements to the victim's father and the police.

At the close of the evidence, the judge instructed the jury on rape of a child with force, pursuant to G. L. c. 265, § 22A, including the theory of constructive force, and the lesser included offense of statutory rape. He also instructed the jury on dissemination of child pornography. The jury returned delinquency findings on the lesser included offense of statutory rape, and found the juvenile not delinquent on the charge of dissemination of child pornography. The judge sentenced the juvenile to three years of probation with special conditions. Following an evidentiary hearing, the judge allowed the juvenile's motion for relief from the obligation to register as a sex offender, pursuant to G. L. c. 6, § 178E (f ), finding that the juvenile did not pose a risk of reoffending or a danger to the public.

2. Discussion. The juvenile raises three arguments concerning the constitutionality of statutory rape where both the victim and the individual charged with the offense are juveniles.⁴ First, he contends that his adjudication of delinquency violates his right to the due process of law because the Legislature did not intend to impose strict liability on a person below the age of sixteen. Second, he contends that statutory rape fosters arbitrary and discriminatory enforcement and is therefore void for vagueness. Third, the juvenile contends that he was unfairly selected for prosecution in violation of his right to equal protection under the law.⁵

a. Due process challenge. General Laws c. 265, § 23, as appearing in St. 1974, c. 474, § 3, provides: "Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under [sixteen] years of age, shall be punished ...." In Commonwealth v. Gallant, 373 Mass. 577, 581–585, 369 N.E.2d 707 (1977), and Bernardo B., 453 Mass. at 170–172, 900 N.E.2d 834, we traced the history of statutory rape from its English common-law roots to the most recent revisions of G. L. c. 265, § 23, in 1974. Although G. L. c. 265, § 23, has evolved over time, our long-standing interpretation of the statute is that it imposes strict liability for anyone who engages in "sexual intercourse or unnatural sexual intercourse" with a person who is less than sixteen years old. See Commonwealth v. Murphy, 165 Mass. 66, 70, 42 N.E. 504 (1895). See, e.g., Miller, 385 Mass. at 522, 432 N.E.2d 463 ; Commonwealth v. Moore, 359 Mass. 509, 514-515, 269 N.E.2d 636 (1971). Accordingly, the only elements the Commonwealth is required to...