Davis v. United States
Davis v. United States
Opinion of the Court
Marvin L. Davis was charged by information with one count of misdemeanor sexual abuse in violation of D.C.Code § 22-3006 (2001).
Davis claims that the trial judge erred as a matter of law in concluding that a consent defense is not available to a defendant charged with attempted misdemeanor sexual abuse where the complainant is a child. Davis also claims that, in any event, the government did not present sufficient evidence that he attempted to commit the offense of misdemeanor sexual abuse.
We are not persuaded by either of Davis’s claims and therefore affirm his conviction.
I.
As Davis’s first claim turns on the proper construction of two statutes, D.C.Code §§ 22-3006 (“Misdemeanor sexual abuse”) and 22-3007 (“Defense to sexual abuse”), our review of the claim is de novo. District of Columbia v. Jerry M., 717 A.2d 866, 868 (D.C. 1998). The two provisions at issue were enacted as part of the Anti-Sexual Abuse Act of 1994 (“ASAA”), which revamped the sex offense laws of the District of Columbia. See
Unlike the general sexual assault offenses in the first category, the offenses in the other ASAA categories address particular situations and relationships in which the victims are deemed incapable of giving meaningful consent, and for which coercion accordingly is presumed. Specifically, the offenses in the second category prohibit any person who is at least four years older than a child from engaging in sexual activity with that child. See D.C.Code §§ 22-3008 to 22-3010 (defining first and second degree child sexual abuse and enticing a child).
D.C.Code § 22-3007 provides that “consent” by the victim is an affirmative defense to a prosecution for any of the general sexual assault offenses in the first ASAA category, including misdemeanor sexual abuse.
We reject this argument, as it is based on a fundamental misreading of the ASAA. Section 22-3011 preserves the longstanding rule that a child is legally incapable of consenting to sexual conduct with an adult.
The rule that children cannot consent to sexual advances by adults was never restricted to prosecutions for child-specific sexual abuse offenses. On the contrary, the rule has been applied with equal force in general sexual assault prosecutions in which consent by the victim is a recognized defense. When non-violent sexual touching is prosecuted as a simple assault, for instance, the prosecution must establish that the complainant did not consent to being touched. See Mungo, 772 A.2d at 245-46 (holding, inter alia, that non-violent sexual touching assault is a lesser-ineluded offense of misdemeanor sexual abuse). If the complainant was a child at the time of the assault, however, the defense of consent is unavailable. In re A.B., 556 A.2d 645, 649 n. 10 (D.C. 1989) (citing Guarro, 99 U.S.App. D.C. at 100, 237 F.2d at 581). This exception recognizes that children “do not have the capacity to consent to intimate sexual touching.” Jenkins v. United States, 506 A.2d 1120, 1123 (D.C. 1986) (citations omitted).
There is no evidence that the Council intended to change the law so as to allow consent of a child victim to be raised as a defense in general sexual assault prosecutions under the ASAA. The Council, being of the view that sexual activity between adults and children is inherently coercive, had no reason to do so. Such a significant
Davis does not contend that under the ASAA, a defendant cannot be charged with a general sexual assault offense if a child-specific offense such as first or second degree child sexual abuse would apply to the conduct at issue. See post at 1107 (concurring opinion of Judge Farrell expressing “strong reservations” about the applicability of the misdemeanor sexual abuse statute where the victim is a child). Facially, the misdemeanor sexual abuse statute is applicable to Davis’s offense against his daughter. He has not argued otherwise, nor has the government addressed the issue. Although the Council may not have anticipated that the United States Attorney’s Office would opt to prosecute crimes against children under the misdemeanor statute, that does not mean the Council intended to preclude the. practice. See generally United States v. Young, 376 A.2d 809, 812-13 (D.C. 1977) (holding, inter alia, that where two criminal statutes apply to the same conduct, the government may elect to prosecute under either). Moreover, this case is not the first such prosecution that has come to our attention. See, e.g., In re Bewig, 791 A.2d 908, 909 (D.C. 2002); Mungo, 772 A.2d at 242-43. We therefore leave for another occasion the question of statutory interpretation that Judge Farrell discusses.
Thus, because D.C.Code § 22-3011 makes clear that children are legally incapable of consenting to sexual activity with adults, we hold that if the complainant in a misdemeanor sexual abuse (or other general sexual assault) prosecution was a child at the time of the alleged offense, an adult defendant who is at least four years older than the complainant may not assert a “consent” defense. In such a case, the child’s consent is not valid for purposes of D.C.Code § 22-3007. By the same token, unless he was deceived, the defendant is charged with the knowledge that the sexual act or contact was committed without the child’s valid “permission” within the meaning of D.C.Code § 22-3006.
Applying our holdings to the present case, Davis should have known that his eleven-year-old daughter could not validly consent to his sexual advance. Notwithstanding § 22-3007, therefore, Davis properly could be convicted of attempted misdemeanor sexual abuse.
II.
We turn to Davis’s second claim on appeal, that the prosecution presented insufficient evidence to support his conviction. Davis argues that (1) his daughter was not a credible witness, because her allegation was uncorroborated, and she had a history of emotional problems and a reputation for dishonesty; and (2) the evidence did not show unequivocally that he intended to coerce his daughter to participate in a sexual contact.
In evaluating sufficiency, we view the evidence in the light most favorable to
“To prove an attempt, the government is not required to prove more than ‘an overt act done with the intent to commit a crime, ... which, except for some interference, would have resulted in the commission of the crime.’ ” Evans v. United States, 779 A.2d 891, 894 (D.C. 2001) (quoting Wormsley v. United States, 526 A.2d 1373, 1375 (D.C. 1987)) (construing the general attempt statute, D.C.Code § 22-1803 (2001)). While “[m]ere preparation may not be an attempt,” In re Doe, 855 A.2d 1100, 1107 n. 12 (D.C. 2004), this case involved more than mere preparation. According to his daughter, Davis committed an overt act that went beyond mere preparation when he exposed himself to her and asked her to rub his penis. As his eleven-year-old daughter was legally incapable of consenting to Davis’s sexual advance, coercion was implicit and need not have been otherwise shown. Additionally, Davis’s intent to obtain illicit sexual gratification could be inferred. His overt acts therefore would have resulted in a completed crime — at the very least, misdemeanor sexual abuse — but for the fact that his daughter fled instead of submitting to his request. These facts are enough to convince us that the government presented sufficient evidence to convict Davis of a criminal attempt.
III.
For the foregoing reasons, Davis’s conviction is hereby
Affirmed.
. D.C.Code § 22-3006 ("Misdemeanor sexual abuse”) reads:
Whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person’s permission, shall be imprisoned for not more than 180 days and, in addition, may be fined in an amount not to exceed $1,000.
The terms “sexual act” and "sexual contact” are defined in D.C.Code §§ 22-3001(8) and 22-3001(9), respectively.
. D.C.Code § 22-3018 ("Attempts to commit sexual offenses”) reads:
Any person who attempts to commit an offense under this subchapter shall be imprisoned for a term of years not to exceed 15 years where the maximum prison term authorized for the offense is life or for not more than 1/2 of the maximum prison sentence authorized for the offense and, in addition, may be fined an amount not to exceed 1/2 of the maximum fine authorized for the offense.
. See, e.g., Webster’s Third New International Dictionary of the English Language Unabridged 1683 (1993) (defining "permission” as "formal consent”). The ASAA was not intended to criminalize consensual sexual activity between adults. See Council of the District of Columbia, Report of the Committee on the Judiciary, Bill 10-87, the "Anti-Sexual Abuse Act of 1994,” at 4 (1994) (hereinafter, "Committee Report”).
. A "child" is defined as "a person who has not yet attained the age of 16 years.” D.C.Code § 22-3001(3). Each of the three child sex abuse offenses requires that the perpetrator be at least four years older than the child victim.
. D.C.Code § 22-3007 ("Defense to sexual abuse”) reads:
Consent by the victim is a defense, which the defendant must establish by a preponderance of the evidence, to a prosecution under §§ 22-3002 to 22-3006, prosecuted alone or in conjunction with charges under § 22-3018 or §§ 22-401 and 22-403.
. In pertinent part, D.C.Code § 22-3011 ("Defenses to child sexual abuse”) provides that "[njeither mistake of age nor consent is a defense to a prosecution under §§ 22-3008 to 22-3010, prosecuted alone or in conjunction with charges under § 22-3018 or § 22-403.” D.C.Code § 22-3017 ("Defenses to sexual abuse of a ward, patient, or client”) similarly provides, in pertinent part, that "[cjonserit is
. Although Davis could have been found guilty of attempted second degree child sexual abuse, see D.C.Code § 22-3009, he was not prosecuted under that statute.
. By adopting the four-year age differential as an element of the child sexual abuse provisions, it appears that the ASAA does modify the traditional rule so as to allow bona fide consent of a child victim to be a potential defense where the defendant is less than four years older than the child. That, of course, was not the case here.
. Such a radical expansion of the consent defense also would have been contrary to the drafters' announced desire to "strengthen” the District's laws against sexual abuse and make them “more inclusive, flexible and reflective of the broad range of abusive conduct which does in fact occur.” Committee Report, supra note 3, at 1.
. See D.C.Code § 22-3001(9) (defining "sexual contact” to mean a touching of the genitalia or other specified parts of the body "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”).
. In point of fact, the testimony of Davis’s daughter was corroborated, for example, by the fact that she promptly reported her father’s sexual advance to her mother.
Concurring Opinion
concurring in the result:
I have strong reservations about whether the D.C. Council, in enacting the ASAA to “strengthen and reform the existing laws against rape and sexual abuse in the District of Columbia,”
It would not be a response, it seems to me, to say that by “consent” in § 22-3007 the Council meant “legally valid” consent, something a child by law cannot give. When the Council in the ASAA meant to invalidate consent as a matter of law, it knew exactly how to do so, as in § 22-3011; see also § 22-3017 (“[c]onsent is not a defense tó a prosecution for” sexual abuse of a ward, a patient, or a client). The natural conclusion, I believe, is that the consent or permission referred to in §§ 22-3006 and 22-3007 is “valid” in all its applications, to be established as a matter of fact (or at least reasonable doubt) in any case where raised as a defense. Yet, since the Council plainly meant to bar that defense in most child sexual abuse prosecutions, I strongly doubt that it intended such prosecutions to come within the reach of § 22-3006. As the court recognizes, appellant could have been charged with second degree child sexual abuse, § 22-3009, as to which no issue of consent — and thus no need to revise the statutory language — would have arisen.
Davis, however, has not argued in this court, nor did he argue below, that he was charged under the wrong statute. I see no duty of the court to raise the issue for him at this late date, and because I agree that consent was unavailable to him as a defense in this child sexual abuse prosecution, I join the court in affirming.
. Council of the District of Columbia, Report of the Committee on the Judiciary, Bill 10-87, The "Anti-Sexual Abuse Act of 1994,” at 1 ("Committee Report”).
Reference
- Full Case Name
- Marvin L. DAVIS, Appellant, v. UNITED STATES, Appellee
- Cited By
- 12 cases
- Status
- Published