State v. Doe

249 A.3d 658

STATE of Vermont

v.John DOE

No. 19-402

Supreme Court of Vermont.

May Term, 2020

September 18, 2020

Alexander N. Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret.), Specially Assigned

CARROLL, J.

¶ 1. The State appeals the trial court's finding that there was no probable cause to support the charge that defendant committed aggravated sexual assault under 13 V.S.A. § 3253(a)(9) by fraudulently misrepresenting his HIV status. The State contends that fraud undermines consent to engage in sexual activity and, therefore, defendant's lie about his HIV status vitiated the victim's consent and created probable cause for aggravated sexual assault. The defendant argues that the trial court was correct in finding no probable cause for aggravated sexual assault. We affirm.

I. Facts

¶ 2. The affidavit of probable cause alleges the following. Defendant had three separate sexual encounters with the complainant. Complainant was not interested in engaging in sexual intercourse when she met defendant because she had recently separated from her boyfriend. Complainant "caved," however, and consented to having sex with defendant due to his persistence. When defendant "got a condom and put it on," complainant grew "suspicious" because "most men these days don't use a condom when they know the female is ‘fixed.’ " Complainant accordingly asked defendant if he had a sexually transmitted disease (STD). Defendant denied having an STD. Complainant proceeded to have sex with defendant.

¶ 3. The next day, defendant once again "pursued having sex" with complainant. Although complainant was more willing to engage in sexual intercourse, she remained "uncomfortable" because she had recently broken up with her boyfriend and "she felt like she was cheating." Defendant and complainant had sex using a condom. Defendant did not disclose his HIV status before or during the interaction.

¶ 4. Defendant again expressed a desire to have sex with complainant the following day. Complainant said she did not want to have sex with defendant and refused to perform oral sex when defendant asked her to. Complainant agreed, however, to let defendant masturbate on her. As defendant masturbated, he continued his effort to have sex with complainant, an effort which complainant continuously rejected. Defendant eventually forced his penis into and ejaculated inside of complainant's mouth against her will.

¶ 5. In the following days, complainant heard rumors that defendant was HIV positive. When complainant confronted defendant soon after, defendant denied having HIV. After complainant "begged him to tell her" whether he had HIV, defendant admitted that he was HIV positive.

¶ 6. Based on the above allegations, the State charged defendant with aggravated sexual assault pursuant to 13 V.S.A. § 3253(a)(9) on the theory that defendant's lie about his HIV status vitiated the complainant's consent during each of their encounters, resulting in repeated nonconsensual acts.¹ Defendant moved, pursuant to Vermont Rule of Criminal Procedure 5(i), to review the initial probable-cause finding. The trial court withdrew its initial finding of probable cause and dismissed the charge with prejudice because it concluded that the Legislature did not intend to criminalize the nondisclosure of HIV status. The court explained that aggravated assault under § 3253(a)(9) is predicated on a lack of consent. It noted that the "statute is silent as to whether lying about a positive STD serostatus prior to a sexual act vitiates consent," and, therefore, concluded that the statute is ambiguous. The court considered the statutory scheme and found that it indicated a clear legislative intent not to criminalize nondisclosure of one's HIV status before sex. The court explained that in 13 V.S.A. § 3254 the Legislature outlined instances in which a party cannot consent, none of which include fraudulent misrepresentation by another party. Furthermore, unlike other states, Vermont has not enacted a law that criminalizes nondisclosure of HIV status. Finally, the court noted that there is no authority in Vermont case law applying the informed-consent doctrine to the crime of sexual assault. The State appealed.

¶ 7. On appeal, the State argues that fraud vitiates consent. By fraudulently misrepresenting his HIV status, the State contends, defendant undermined the complainant's consent, thus creating probable cause for aggravated sexual assault under § 3253(a)(9). The State argues that by using the word "voluntary" in the definition of consent, the Legislature intended to protect people from undesired sexual acts, including sexual acts induced by fraud that expose victims to HIV. Additionally, the State argues that in the civil context, this Court has held that deceit undermines consent. Furthermore, the State notes that other jurisdictions have specifically held that consent is not valid when a person does not disclose his or her HIV status.

¶ 8. Defendant argues there is no probable cause to believe that he committed aggravated sexual assault because the Legislature has not specified by statute that fraud undermines consent. As a result, defendant argues that the common law is still in effect. And at common law, defendant asserts, lying about one's HIV status would not undermine consent. Finally, defendant argues that under the State's interpretation, the aggravated sexual assault statute would be void for vagueness because it would not provide defendants with sufficient notice that lying to induce sex could constitute a felonious act.

II. Merits

¶ 9. This case turns on whether—given the allegations in the affidavit supporting the charge—there was probable cause to conclude that defendant committed aggravated sexual assault under 13 V.S.A. § 3253(a)(9). "The standard for a determination of probable cause is whether there is probable cause to believe that an offense has been committed and that the defendant has committed it." State v. Bresland, 2012 VT 75, ¶ 4, 192 Vt. 644, 57 A.3d 727 (mem.). Section 3253(a)(9) states that a person commits aggravated sexual assault if "the victim is subjected to repeated nonconsensual sexual acts as part of the actor's common scheme and plan." The State contends there is probable cause to believe that defendant committed aggravated sexual assault because his sexual acts with the complainant were nonconsensual. Although the complainant initially consented to having sex with defendant, the State contends that defendant's fraudulent misrepresentations about his HIV status invalidated complainant's consent. The specific question on appeal is whether under the sexual assault statutory scheme, fraud—namely, lying about one's HIV status—undermines consent. This is a question of law that we review de novo. State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816 ("Whether a trial court properly interprets a statute is a question of law which we review de novo.").

¶ 10. Our main objective in interpreting statutes is to determine and enforce the Legislature's intent. State v. Berard, 2019 VT 65, ¶ 12, 211 Vt. 39, 220 A.3d 759. In order to discern legislative intent, we first look to the plain language of the statute. Id. If a statute's plain language clearly indicates the Legislature's intent, "we implement the statute according to that plain language." Id. (quotation omitted). If, as in this case, a statute's plain language is ambiguous, "we ascertain legislative intent through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law." Id. (quotation omitted).

¶ 11. We hold that the trial court was correct in concluding that there was no probable cause to believe that defendant committed aggravated sexual assault under § 3253(a)(9).² We agree that the statute is ambiguous and conclude that there is no indication, considering the sexual-assault statutory scheme as a whole, that the Legislature intended for fraud to vitiate consent. Furthermore, because the Legislature has not been clear as to whether fraud undermines consent, the State's interpretation of § 3253(a)(9) would implicate due process concerns.

¶ 12. We begin with the plain text of the statute. Section 3253(a)(9) prohibits "nonconsensual sexual acts." Although the statutory scheme does not define the term "nonconsensual," it does define "the nominal form of its opposite," the word "consent." State v. Deyo, 2006 VT 120, ¶ 15, 181 Vt. 89, 915 A.2d 249. Consent is defined as "words or actions by a person indicating a voluntary agreement to engage in a sexual act." 13 V.S.A. § 3251(3). "[S]exual act" is, in turn, defined as

conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person's body or any object into the genital or anal opening of another.

Id. § 3251(1).

¶ 13. As an initial matter, we note that § 3251(3) is concerned with consent, not informed consent. A person gives consent to another to engage in an act. Consent, Black's Law Dictionary (11th ed. 2019) ("A voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose ...."). Informed consent, however, refers to whether the person gave consent "with full knowledge of the risks involved and the alternatives." Informed Consent, Black's Law Dictionary (11th ed. 2019). As we have explained in the medical-malpractice context, a patient can consent to surgery, but that consent may not be informed if the patient "receives inadequate disclosures of the alternatives and foreseeable risks and benefits of the alternatives." Christman v. Davis, 2005 VT 119, ¶ 7, ...