Non'ee: Tllis opinion is subject ro_fornlnl revision before pnblieorion in rhe Ationric and Mor;’lom! Reporrers. Users ore requested to notiij file Clerk of the C.`onrt of onyjornm[ errors so finn corrections ino_l’ be mode before the bound volumes go to press.

DISTRICT OF COLUMB|A COURT Ol+` APPEALS No. l:'»-FS-313 lN la'-: M.S., AI=l’m.l./\N'l. Appeal |`1‘0:11 the SLlperior Courl Ol`the

Dislriel of`Columbia (DEL- l (17{~‘,-|4)

(Ilon. Flc)renee Y. l’an, Tl‘ial Judge) {Argaed lane l. 2()1() Deeided ()etoher 12, 2()17)

Dmn`el S. i'{ormvo. l’ublie De|`elldel‘ Ser\»'iee, with \\»'lmm ./oo:es l\'iein, .5'/11`!;)¢: S. .S`oir)s/cor and Sonn`o Fom, I’ublie Del`endel' Sel'viee1 were an the bl'ie|`, l`Or appeHanL

./o/.'n D. ll»ior!orono, Assistant /\tlnrney Cieneral. with whom [\'ori el. Rocine._ Allurney (jeneral. Y`oo'ri .S'. ]\':'m_ So|ieilar General. and /\’osoi_1'n (`. Groee_ Depuly Solieitor General, Were on the bl'iel`. l`Ol‘ appellee

Bef`ore Bl..,-\L‘I<.lsLa<Nl-i-Rlcism'_ C/n'ef`./mz'g¢g' "|`l Ic )1~.-11=5¢ )N, ‘»Is.w)w'cne./mige, and FI"`I{|{I`-N.` lS'enir)r ./nrige.

C`hiei`.ludge Blae[<hurne-Rigsl)y was an /\ssoeiale .ludge al the lime oi`al'al argumenl. ller status changed la (`hie|`.ludge an l\/lareh 18,2017.

Senior .ludge Warren R. Kiag was on lhe panel al the lime this ease was argued On Nuvemher 23, 2()](), .|udge King retired and Seniur .|lege .Iahn l\/l. l?er'ren replaced .ludge l<.ing as a member af`lhe panel.

I~J

BI..»'\CKBURNE-RIGSBY, C/n'ef`.!odge: ln this appeal, we are asked to determine whether three general sexual abuse offenses merge into the victim-specific ol`i"ense ot` second-degree child sexual abuse. Appellant M.S., who was thirteen and fourteen years old during the relevant period. appeals his eight adjudications of delinquency arising From two instances of sexual contact with his younger male cousin, R..l. For each ol" the two sexual contacts, M.S. was adjudicated delinquent on l`our counts: second-degree child sexual abuse, D.C. Code § 22-3009; third-degree sexual abuse. D.C`. Code § 22-3004; fourth-degree sexual abuse, D.C. C`ode § 22-3005; and misdemeanor sexual abuse. D.C. Code §22--[)0().' l-le argues that the Double leopardy Clause requires merger ot` his eight counts ol" sexual abuse into just two

counts ol`second-degree child sexual abuse.

Based upon the plain language, structure, and legislative history ofthe Anti- Sexual Abuse Act Ol" l994 (“ASAA"), as well as our relevant case law, we hold that the ol`l`enses ol` misdemeanor sexual abuse and l`ourth-deg_ree sexual abuse merge with the offense ot` second-degree child sexual abuse. l-lowever. we hold that the

oi`l`ense ol`third-degree sexual abuse, which requires prool`ol`t`orce, does not merge

' l_lnless otherwise indicated, the D.C. Code citations herein ret`er to the 20|3 Supplement.

with second-degree child sexual abuse. Accordingly, we affirm in part and remand

in part for merger consistent with this opinion.

l. Factual Background

Tltis case arises from two instances of sexual contact that appellant, who was thirteen and fourteen years old at the relevant times, initiated against his cousin, R..l., who was nine years old. R..l. frequently visited appellant in the spring and summer of 2014 to play video games On August 9, 2014, while R..l. was playing "Minecra|`t," appellant made oral contact with R..l.`s genitals through his pants. l-le then forced R..l. to lie down, and appellant sat on him to force oral contact with appellant’s genitals through his clothing, 'fhe activity stopped when R.J.`s father called him downstairs to leave. R.J. described the sexual contact to his father during the drive home, and at some point, it became clear that similar contact between l\/l.S. and R..l. had occurred before. The trial court credited R..l.’s explanation for not reporting sooner: that he did not want to lose access to the better television and game

system at appellant`s home.

After R..l. described the incident to his t`ather, on August C), R..l.`s father

immediately drove back to appellant`s home and angrily confronted him.

Appellant`s mother was also present and asked appellant more calmly about the incidents because she wanted to get him help. After initial denials. appellant admitted to sexual contact with R..l. on August 9q 20|4. and on at least one prior occasion, during that spring or summer, after appellant`s family bought a ‘“sl‘nal't

TV" in l\/larch 2014.

The trial court found that at least two instances of sexual contact occurred. that appellant was at least four years older than R..l. at those times, and that appellant intended 10 gratify sexual desire through his conduct with R..l. Signil"tcantly. the trial court also l`ound: (l} thaL in accordance with the third-degree sexual abuse charge, appellant had used force by sitting on R.J., (2) that, in accordance with the fourth-degree sexual abuse charge1 appellant had reason to know that R.J. could not appraise the nature ofthe conduct, and (3) that._ in accordance with the misdemeanor sexual abuse charge, R..l. did not consent to the sexual contact. Appellant was adjudicated delinquent on all eight counts (l`our counts for each incident) and was sentenced to one year of probationq including group therapy and ninety hours of

community service. This appeal l`ollowed.

ll. Analysis

'l`he Double .leopardy Clause "protects against multiple punishments for the same offense." UnitedSrotes v. Mel.rmg/ih`n. 164 F.3d 118 {D.C. Cir. 1998) (citation and internal quotation marks omitted); see o/so U)n`red Sm!es t'. t'l-'fo/idt`, 593 F.3d 883, 387 (D.C. Cir. 2010) (citation omitted). To determine whether convictions merge, we apply the default rule articulated in B/oc/rbtn'ger v. Uni`ied Smtes. 284 U.S. 209, 304 ( l 932). which states that "“where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof oi"a fact the other does not." See D.C`. Code § 23-1 12 (2012 Repl.); B_\-'rd it Unireo' Snnes, 593 A,.'Zd 386. 389 90 (D.C. 1991 ) (en banc) (adopting B/ocit'i)io'ger, in light ofD.C. C`ode§ 23-1 12 (1989), over a “pure fact-based analysis"). The B/oc/t'i)io'ger analysis applies unless the legislature has clearly indicated a contrary intent with respect to the particular offense at issue. See B_i-'rd. snpro, 598 A.2d at 389;

B/oc'/r/ect'ge v. Unireci Srrnes. 371 A.Zd l 193, l 196 (D.C. 2005).

6

Appellant argues that merger of his sexual abuse adjudications is required both under the B/oekbnrger test and as a matter of legislative intent.2 The government counters that each crime contains a unique element on its face, precluding merger under B/oe/\'bnrger; and that the legislative history ofthe ASAA indicates that all four sexual abuse charges may be brought for the commission ofa

single act.

All four ofthe criminal code provisions under which appellant was charged were enacted under the ASAA in 1994. See D.C. Council. Report on Bill 111-87 (Sep. 28, 1994). The Council of the District of C`olumbia ("`D.C. Council" or “Council") stated that the purpose behind the ASAA was to “strengthen and reform the existing laws against rape and sexual abuse in the District ofColumbia." [ri. at l. In line with this purpose, the ASAA “rnodernize[d] the District`s antiquated rape and sexual assault laws" by ‘“creating graded offenses for sexual assaults ofvarying

[degrees ol] severity[.]" Io'. at 2. ln addition to creating graded forms of sexual

2 Preliminarily, we obseiye that the merger protection ofthe Double jeopardy C`lause applies equally in juvenile delinquency proceedings and adult criminal prosecutions See Breer/ v. ./ones, 421 U.S. 519. 530 31 (1975); see also fn re Z.B.. 131 A.3d 351, 354 55 (D.C. 201()) (considering a merger claim in a juvenile delinquency appeal). l\/loreover. a juvenile may raise a merger claim because a delinquency disposition may carry "penal consequences for an offender later in life."` H.M. v. Srore, 892 N.E.2d ()79_ 682 (lnd. Ct. App. 2008).

abuse, the Council also grouped the sex offenses into different categories Relevant here, the first category ofthe ASAA consists ofgeneral sexual abuse offenses. which do not require a specilic victim1 while the second category ofthe ASAA addresses sexual abuse against children" and minors in particular .S'ee D.C. Code §§ 22-3002 to 22-3006 (general sexual abuse offenses); 22-3008 to 22-3010.02 (sexual abuse offenses against children and minors); Dovr`s r'. L)’niredSmres, 373 A.2d l 101, l 104

(D.C. 2005).

l_lpon reviewing the legislative history of the ASAA, we see no clear expression ofthe D.C`. Council`s intent as to whether or not the crimes ofthe ASAA should merge. While the Council stated in its C`ommittee Report for the ASAA that it sought to "rnake the laws governing sexually abusive conduct more inclusive, llexible[q] and reflective ofthe broad range ofabusive conduct which does in fact occur." Rep. on Bill 10-87 at l, this expression by the Council does not indicate whether it intended to allow multiple convictions based upon the same act. Neither does the Council`s creation of “graded offenses for sexual assaults" and its separation ofthe sexual assault offenses into different categories indicate whether

the Council intended that each instance of sexual conduct would be prosecuted as

l Under the ASAA. a `“child" is "a person who has not yet attained the age of

l() years." D.C`. C`ode § 22-3001 (2012 Repl.).

just one corresponding offense even if it satisfies the elements of other ASAA

of fenses.4

Funhermore, the D.C. Council has not provided explicit guidance on merger of offenses under the ASAA, as it has done in other contexts See. e.g., D.C. Code §2_-3203 (a) (2012 Repl.) (providing for multiple convictions for theft, identity theft, fraud, credit card fraud1 unauthorized use ofa velricle, commercial piracy, and receiving stolen property, but only concurrent sentences). Thus, because the C`ouncil`s intent on merger ofoffenses under the ASAA is not clear. we must analyze each offense at issue under the B/oe/t'/)in'ger test. See Prn'/ter r’. L.-lnirecf Snnes, 692 A.2d 913, 916 (D.C. 1997) (quoting fl/Ii`ssonrt` r'. Hnnrer, 459 U.S. 359, 367 68 (1983)] (emphasis in original) (stating that the Biock})nrger test is applied to determine merger of offenses unless there is “o clear indication of coni‘ror_r'

}Ugis/on`ve inr‘eni").

4 The legislative history ofthe 2006 amendment to the ASAA, enacted as pan ofthe Omnibus Public Safety Act of2006` also does not indicate the Council"s intent on whether offenses under the ASAA should merge. ln the amendment. the D.C. Council expanded the definition of "signifrcant relationship"' with a minor and created a new crime for "misdemeanor sexual abuse of a child." D.C. Council, Report on Bill 16-247,at l | (Apr. 28,2006). 'l`he Council`s comment about the new misdemeanor offense -"lt is the Committee`s intent that prosecutors only employ [the new misdemeanor sexual abuse ofa child] charge when appropriate." is not particularly helpful even in determining the "appropriate" scope ofthe new law. See i`o'. The comment does not indicate whether the C`ouncil intended merger ofoffenses from the original enactment ofthe ASAA.

A. The Blockbnrger Test

When applying the B/oc/t'bto'ger test, we compare the elements ofthe relevant offenses to determine "whether each provision requires proofofa fact the other does not." 284 U.S. at 304; see oiso B_t-‘rd, snpro, 598 A.2d at 389. Both parties claim to prevail under the B/oe/tf)m~ger analysis by applying the test differently The government focuses solely on the language of the elements of each offense Appellant instead asks whether it is possible to commit one crime without committing the other. The latter approach reflects the correct application of B/oe/t'/)to~ger. See, e.g.` Z.B., supra note 21 131 A.3d at 355 (“[l]t is not possible to commit robbery without also committing assault, and assault accordingly merges as

a lesser-included offense").

For example. in julie v. Uin`red$mres, 629 A.2d 201 22- 23 (D.C. 1993). we considered whether the crimes ofcan'ying a pistol without a license ("CPWL") and possession of an unregistered firearm (“UF") merge. Observing that one could potentially have a non-pistol firearm that was not properly registered stored within her own home (thus committing UF without committing CPWL) and thal, conversely, one could carry a registered pistol on the streets without a proper license

(thus committing CPWL without committing UF). we concluded that the crimes did

10

not merge under B/ocicbnrger. ld. Thus, the facial comparison ofthe elements was supplemented by a practical inquiry into whether it was possible to commit one offense without at the same time committing the other offense See also Sneii v. Unired Stores, 68 A.3d 689, 694 (D.C. 2013) (reaffrrn‘ring holding of Y:r'i'ee). On the other hand1 in Hrnr/ri'ns v. Uin'red Srcnes, we considered whether a count of obstruction ofjustice for influencing truthful testimony should merge with another count ol`obstruction for causing or inducing a person to withhold truthful testimony l 19 A.3d 68 7, 703 (D.C. 2015), cert denied snb noin. l”errer v. United Srores, 136 S. Ct. 1526 (20 l 6). We concluded that the two counts merged because “telling a lie necessarily includes withholding the tr'uth[.] too. so a person who ‘inlluences` truthful testimony under [D.C. Code § 22-722 (a)(2)(A)] by instructing a person to

lie will violate [D.C. Code § 22-722 (a)(2)(B)] as well." !d. (emphasis added).

This is not to say that B/oc/t'l)io'ger precludes multiple convictions for a single act; it is axiomatic that the same act can give rise to multiple convictions so long as each crime has a unique element. See, e.g., R:`chord.s‘on r’. Um'ted Snrtes, 1 16 A.3d 434, 439 40. 439 n.2 (D.C. 2015) (stating that the fact-based merger inquiry in which we looked to whether one crime was "incidental" to another to determine if the offenses merged, had been overruled by B_r'rd). Nevertheless, "“a lesser offense

will merge into a greater offense if guilt of the lesser offense “is necessarily

ll

established by proofofthe greater offense."` Bo// v. Uin'redSmtes, 429 A.2d 1353. 13601‘1.13(13.€. 1981) (quotittg Fn/ier r’. Unired Srcites, 407 F.2Cl l 199. 1228 (D.C. Cir. 1968) (en banc)). As a result` the B/oekbnrger test examines the elements ofthe crimes, see B_r'rd, sn;)ro, 598 A.2d at 390 (asking “whether each statutory provision required proofofan element that the other did not"), with the purpose of`ascertaining whether it is possible to fulfill the elements of one offense without fulfilling the elements of the other offense. See Nr)rri`s r'. L)'nii‘ed Smtes. 585 A.2d 1372, 1374 (D.C. 1991 ). With this understanding ofthe proper application ofthe B/oekburger test, we tum now to whether appellant`s general sexual abuse counts merge into his

two counts ofsecond-degree child sexual abuse.

B. Application of Blockbnrger to the ASAA Crimes at lssue

Second-degree child sexual abuse requires proofofthree elements: (1) that the defendant was `“at least 4 years older than [the] child" at the time ofthe offense. (2) that the defendant ‘“engage[d] in sexual contact with that child or caus[ed] the child to engage in sexual contact[,]"'i' and (3) that the defendant did so ‘“with an intent

to abuse, humiliate, harass. degrade. or arouse or gratify sexual desire." See D.C`.

5 For all relevant charges, "sexual contact" includes the touching ofgenitalia through clothing as occurred in this case. D.C. C`ode § 22-3001 (9).

l")

C`Od€ §§ 22-3009, -3001 [9); Green r’. Unired Srotes, 948 A.2d 554, 558 [D.C. 2008). The other three offenses at issue, being general sexual abuse offenses, are not "victim-specific," so they do not require proof that the sexual contact was with a

child at least four years younger than the defendant

B/oc/rbnrger requires us to compare the elements of second-degree Child sexual abuse with the elements of( 1 ) misdemeanor sexual abuse, (2) fourth-degree sexual abuse, and (3) third-degree sexual abuse, in order to ascertain whether it is possible to commit the first offense, without committing the last three offenses .S`ee Appendix A ("Table of Elements ofthe ASAA Crimes at lssue"`). In doing so. we also consider whether the traditional presumptions of non-consent (premised on a child`s incapacity to consent) and use of force in child sexual abuse prosecutions were retained by the ASAA. See t.g. Dow's, snpro, 873 A.2d at l 104 05 (discussing the historical presumptions of force and non-consent for sexual assaults committed

against children).

l. Misdcnlcanol' Se.\'ual Abusc

l\/lisdemeanor sexual abuse requires proof of three elements: (l) that the

defendant `“engage[d] in a sexual act or sexual contact with another person[,]"` (2)

13

while knowing or having reason to know “`that the act was committed without that other person`s permission"` and (3) "with an intent to abuse, humiliate, harass, degrade. Or arouse or gratify sexual desire."` D.C. Code §§ 22-3006, 22-3001 (9). The critical question we examine is whether proofthat the victim was a child at least four years younger than the defendant1 as required for second-degree child sexual

abuse, triggers a conclusive presumption that the victim did not give permission

We have previously addressed the intersection ofsecond-degrec child sexual abuse and misdemeanor sexual abuse. albeit indil‘ectly. in Davis r’. Unired Stores. ln that case, Davis was convicted ofattempted misdemeanor sexual abuse for engaging in sexual conduct with his eleven-year old daughter1 although this court acknowledged that he could have been convicted of second-degree child sexual abuse. 873 A.2d at 1 1031 1 105 n.7. Davis argued on appeal that because § 22-3007 ofthe ASAA makes the consent defense available for misdemeanor sexual abuse, he should have been permitted to demonstrate as a defense that his daughter consented

to the sexual contact. ]d. at l 105."

“ `“Consent by the victim is a defense to a prosecution under §§ 22-3002 to 22-3006 . . . D.C. Code § 22-3007. ln other wordsq consent is only a defense to general sexual assault crimes (l`rrst-degree sexual abuse down to misdemeanor sexual abuse). not to victim-specific sexual assault crimes such as second-degree child sexual abuse.

14

We rejected that argument. concluding that § 22-301 1 of the ASAA, which expressly precludes a consent defense for child sexual abuse offenses, demonstrated the Council"s intent to ‘“preserve[] the longstanding rule that a child is legally incapable ofconsenting to sexual conduct with an adult." ld. at l 104 -05. We noted that the basis for this historical rule is “that children cannot consent “in a meaningful way,` because they *do not understand what is happening to them.`" Id. at 1105 (quoting Wt'//i'onrs rt United Stotes, 756 A.2d 38th 386 (D.C`. 2000). and Grnirro v_ t.trir'reo'.§`rrites, 237 F.2d 578, 581 (D.C`. C`ir. 1956)). lr`urthermore, we observed from the Council`s Committee Report on the ASAA that the C`ouncil continued to view "sexual conduct between adults and children as `inherently coercive due to the age difference between the participants."’ ]d. (citing Rep. on Bill 10-87 at 4.). Accordingly, we held that "ifthe 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." Id. at l 106.i lmporlantly, in Dor'i`s we stated further,

"[b]y the same token, unless he was deeeived. the defendant is charged with

f Although Davis discusses an "adult defendant"' and the consent defense nothing in that decision or in the text of the ASAA suggests an exception for juveniles who sexually assault much youngerjuveniles. We discern no reason {and the parties have not advanced one here) that Davis would not apply to this case because appellant is ajuveni|e.

15

knowledge that the sexual act or contact was committed without the child’s valid

`perntission` within the meaning of D.C. Code § 22-3006." Id.

Our holding in Davis makes clear that proof of at least a four-year age gap between the defendant and a child victim of sexual assault itselfconstitutes proofof the second element of misdemeanor sexual abuse: that the sexual contact was committed without the child`s valid permission .S'ee D.C. C`ode § 22-3006. ln such circumstances the Council has deemed the sexual contact between the defendant and child as "inherently coercive." Dc:vr`s, supro, 873 A.2d at 1105 (internal quotation marks and citation omitted). Therefore, every set of facts satisfying the elements of second-degree child sexual abuse will also necessarily satisfy the elements of misdemeanor sexual abuse.“ Tltis result is further supported by the

C`ouncil`s intent that the ASAA remain “consistent with existing law governing

"l Our conclusion here is not foreclosed by our statement in Sunon r'. Uni'red Srores, 140 A.3d 1 198, 1205 (D.C. 2016}1 that misdemeanor sexual abuse ofa child and attempted misdemeanor sexual abuse are different offenses under B/oc/r})io'ger because the former ““has age requirements for the victim and perpetrator"’ while the latter “has a knowledge-of-lack-of-consent requirement." `l`his assertion was merely dictum1 as our ultimate holding that the defendant`s convictions for the two offenses should not merge in that case was based upon our recognition that the defendant`s convictions were not based upon a single continuous act. but were instead based upon two separate acts. See id. at 1206 (holding that "the criminal conduct on which each [ofthe defendant`s] conviction[s] was predicated represented a discrete act for which [the defendant] could be punished separately").

16

indecent acts with children"` at least where applying the pre-existing legal presumption that a child cannot consent to sexual contact 873 A.2d at 1 105 (citing Rep. on Bill 10-87 at 4)." As a result. misdemeanor sexual abuse is a ‘“lesser- included offense" of second-degree child sexual abuse, because one cannot commit second-degree child sexual abuse without committing misdemeanor sexual abuse. See Z.B., supra note 2, 131 A.3d at 355. Speciflcally. when there is a four or more- year age gap between the defendant and the child victim of sexual assault, coercion is presumed triggering a conclusive presumption that the sexual contact was committed without the child’s permission Accordingly, appellant`s second-degree child sexual abuse adjudications and his misdemeanor sexual abuse adjudications

l`ll€l‘g€.

2. Fourth-Degree Sexual Ahuse

We now consider whether fourth-degree sexual abuse merges with second-

degree child sexual abuse. Fourth-degree sexual abuse requires proof of three

elements: ( l ) that the defendant ‘“engage[d] in or cause[d] sexual contact with or by

"` Davis acknowledges that the ASAA abrogated the traditional rule that a child is incapable ofconsenting to sexual contact in circumstances in which there is less than a four year age gap between the child and defendant 873 A.2d at 1 105 n.8. ln such circumstances1 a !)ono_fide consent defense is permitted ]d.

17

another person[,]" (2) while knowing or having reason to know that the other person was “‘incapable ofappraising the nature ofthe conduct"l" and (3) "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire." D.C. Code §§ 22-3005 (2)(A), -3001 (9). The critical question we examine is whether proof that the victim was a child at least four years younger than the defendant, as required for second-degree child sexual abuse, triggers a conclusive presumption that the

child was incapable ofappraising the nature ofthe conduct.

Our holding in Davis that the ASAA retains the conclusive presumption that children cannot consent to sexual contact._ at least where the defendant is at least four years older than the child, is also a helpful guide for our analysis here. See 873 A.2d at l 105l 06 & n.8. We explained that this conclusive presumption was founded upon the notion that ‘“cltildren ‘do not have the capacity to consent to intimate sexual touching[,]"" id. at 1105 (quoting Jenkins r’. Unired S.totes, 506 A.2d l 120, l 123 (D.C. 1986)) because child victims "do not understand what is happening to them"

during sexual contact, i`d. (quoting Gnc'o'ro, snprn. 237 F.2d at 581). Thus, the result

"' This second element of fourth-degree sexual abuse may also be satisfied by a showing that the defendant knew or had reason to know that the other person was ‘“[i]ncapable ofdeclining participation in that sexual contact;" or “`[i]ncapable of communicating unwillingness to engage in that sexual contact[.]" D.C. Code §22-3005 (2)(13) (C). l-lowever. only the showing that the other person was “`incapable of appraising the nature of the conduct" is relevant to this appeal. § 22-3005 (2)(A).

18

in Davis that a defendant "at least four years older than the complainant" is “charged with the knowledge that the sexual act or contact was committed without the child`s valid ‘permission"` is inextricably tied to the notion that a child is

incapable ofunderstanding the nature ofsexual contact. /d. at l 106.

Our reasoning in Davis is consistent with the long line of`cases employing a presumption that children cannot consent to sexual contact. The presumption is not literal (i.e., that a child cannot form the words to express consent); it is instead based upon a child`s lack ofexperience with sexual contact, which necessarily dictates that consent cannot be meaningfully given, as well as the need to protect children from undue pressure from older partners. For example1 in l'l”'i`iiimns v. L,fni'red .S'mr‘es, involving sexual contact between a thirty-five year old defendant and fourteen-year old child, this court stated "[w]hile it is true that [the child victim] may have been a willing participant, when an age gap . . . exists, the minor cannot consent to sexual [contact] in a meaningful way."' 756 A.2d 380, 386 (D.C. 2000). Similarly, in Beoasolie/ v. Um`red Smres, the D.C. Circuit held that "[y]oung girls" cannot consent to sexual contact. explaining that they are ““within the necessary protection of the law" in order to avoid “persons [from taking] advantage of their ignorance and inexperience[.]" 107 F.2d 292, 296 (D.C. Cir. 1939). Thus. the presumption that

child victims cannot consent is interwoven with an underlying rationale that

19

children, by virtue of their youth and inexperience do not understand sexual

conduct, and therefore are in need of protection from coercive sexual contact.

When the Council developed the ASAA, the Council defined new crimes that went beyond crimes that existed when the presumptions of force and non-consent for sexual contact with children developed See Brd{ord v. United .S'rores, 430 A.2d 483, 485 86 (D.C`. 1981) (explaining the crimes of "'rape," which protected adults from forcible non-consensual sexual acts. and “carnal knowledge__" which protected female children under the age of sixteen by presuming force and non-consent). Fourth-degree sexual abuse is one of the new sexual assault crimes__ which criminalizes sexual contact with a person “incapable ofappraising the nature ofthe conduct." D.C. Code §22-3005. ln a case involving an adult victim, the charge might involve proof of the victim`s intoxication or general mental incapacity See, e.g., T/rornos v. Unired Sirrres; 59 A.3d 1252q 1255 (D.C. 2013) (recounting defendant`s act of sexually touching a drunk, sleeping adult victim who awoke "`alarmed and confused," giving rise to a fourth-degree sexual abuse charge). l'lowever, in a fourth-degree sexual abuse case involving a child victim (at least four years younger than the defendant). additional proof would be redundant because the ASAA retains the notion that children lack the capacity to understand the nature of

sexual conduct. .S`ee Dovi`s, snpro, 873 A.2d at l 105 ("`flre drafters [ofthe ASAA]

20 viewed sexual conduct between adults and children as 'inherently coercive due to

the age difference between the participants."`) (quoting Rep. on Bi|l 10-87 at 4)).

The rationale underlying the presumption that children cannot consent, in our view, readily extends to the additional proofrequired for fourth-degree sexual abuse We have held that child victims are unable to meaningfully consent to sexual contact with an older person because they “do not understand what is happening to them." See Pornigoni r'. District of'Co/tonbio, 933 A.2d 823, 827 (D.C. 2007] (citation and internal quotation marks omitted); Giiorro, sirpro. 237 F.2d at 581. Thus, it necessarily follows that if a child victim does not understand what is happening during sexual contact, then lie/she is also “`incapable ofappraising the nature ofthe [sexual conduct]" with an older person, as required for fourth-degree sexual abuse D.C. Code §22-3005 (2)(A). lt would be inconsistent for this court to require merger of misdemeanor sexual abuse with second-degree child sexual abuse, on the basis that the law conclusively presumes that child victims cannot meaningfully consent` but to preclude merger of fourth-degree sexual abuse with second-degree child sexual abuse This is because the presumption that child victims cannot consent to sexual contact with older partners is based upon the child victims` inability to appraise the nature of the sexual contact in such circumstances See

Dovi`s, sri/irca 873 A.2d at l 105 06. Accordingly. due to the historical premise that

21

¢-¢

children do not understand what is happening during sexual contact. every act giving rise to a second-degree child sexual abuse charge will, by virtue of the age gap between the child victim and the defendant, also involve a child victim who is “‘incapable ofappraising the nature ofthe conduct" within the meaning of D.C. Code

§ 22-3005.

l\/loreover, we note that proving a distinct, unmerged fourth-degree sexual abuse charge based upon a particular Child victim`s inability to appraise the nature of sexual contact would require an inquiry into the victim`s sexual experience or knowledge Such an inquiry would require evidence that may be excluded by the ‘“Rape Shield Law," a protection for victims that was also enacted by the ASAA.“ "The Rape Shield Law was enacted as a safeguard against unwarranted invasions of privacy and also serves to exclude largely irrelevant evidence that may distract the

jury or lead it to discount the complainant"s injury because of societal stereotypes

]' The Rape Shield Law excludes from sexual abuse cases “reputation or opinion evidence ofthe past sexual behavior of an alleged victirn[.]" D.C. Code § 22-3021 (2012 Repl.). Tlte Law also excludes “evidence ofa victim`s past sexual behavior other than reputation or opinion evidence" unless the defendant demonstrates (1) that the evidence is relevant, (2} that its probative value outweighs "the danger ofunfair prejudice," and (3) that the evidence either reflects prior sexual behavior with the defendant where consent of the victim is at issue; indicates that the source ofsemen or bodily injury is from a person other than the defendant; or "is constitutionally required to be admitted." D.C. Code § 22- 3022 (a) (b) (2012 Repl.).

[~.) [~J

and prejudices." Scoo r=. Uin'reci’.$`rores, 953 A.2d 1082, 1089 (D.C. 2008). Evidence ofa victim`s “sexual sophistication or private sexual behavior`" is precisely the sort of evidence that the Rape Shield Law seeks to exclude except where absolutely

necessary See B./\'.'.B. r'. Moin` Po[i`ce Dep 'r, 276 F.3d 1091. l 105 (9th Cir. 2002).

Arguably, some older children may be able to understand sexual contact. This is something that the Council also recognized, but on{_i' as it pertained to sexual contact between children of similar ages. ln the ASAA`s Committee Report1 the Council explained that in creating the four-year age gap requirement for child sexual assault offenses. it was `“recognizing but not comi'oni'ng the sexual curiosity which exists among young persons ofsimilar ages." Rep. on Bill 10-87 at 15 (emphasis added). ln line with this statement. we acknowledged in Drivi`s, that the ASAA slightly modifies the traditional rule that a child is incapable of consenting to sexual contact, by making the consent defense available in cases in which the sexual assault victim is a child. but there is less than a four-year age difference between the child

and the defendant.'2

13 See Dovi's, sapra._ 873 A.2d at 1 105 n.8 ("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 /)onofi`de consent ofa child victim to be a potential defense where the defendant is less than four years older than the child.").

23

We conclude that the Council intended, as a policy matter, to continue to protect children as a class from undue pressure from an older partner. See, e.g., Davis, supra1 873 A.2d at l 105 (‘“The purpose ofthe law [regarding sexual conduct] thus has long been to protect children . . . .") (citation omitted); Rep. on Bill 10-87 at 15 (referring to sexual conduct involving a child and a defendant that is more than four years older than the child as “inherently coercive"). The Council was willing to permit a bonojide consent defense in sexual assault cases in which there is less than a four-year age difference between the defendant and child, but not in cases in which there is a four or more-year age gap between the defendant and child. Accordingly, once the government proves in a sexual assault case that the defendant was four or more years older than the child victim, there is a conclusive presumption that the defendant knew or should have known that the child was incapable of

appraising the nature ofthe sexual conduct.

This result is in line with our holding in Dovi`s, and also furthers the purpose of our Rape Shield l_aw. ln sum1 when comparing the elements of the crimes as required by B/oekl)urger and recognizing a conclusive presumption that a child who is at least four years younger than the defendant has an "inability to appraise the nature of the [sexual contact]," D.C. Code §22-3005 (2)(A), we hold that it is

impossible to commit second-degree child sexual abuse without also committing

24

fourth-degree sexual abuse Therefore appellant`s fourth-degree sexual abuse

adjudications merge into his second-degree child sexual abuse adjudications

3. Third-Degree Sexual Abuse

Third-degree sexual abuse requires proof of three elements: (l) that the defendant “engage[d] in or cause[d] sexual contact with or by another person, (2) “[b]y using force against that other person[._]" and (3) ‘“with an intent to abuse humiliate harass. degrade or arouse or gratify sexual desire." D.C. C`ode §§ 22- 3004 ( l ). -3001 (9). The critical question we examine is whether proof that the victim was a child four or more years younger than the defendant, as required for second-degree child sexual abuse triggers a conclusive presumption that the

defendant used force

Third-degree sexual abuse which requires use of force is a step removed from the extensive discussion in Dor=i`s regarding a child victim`s inability to consent to sexual contact1 because force and non-consent are generally understood to be independent aspects ofa sexual assault. Prior to the ASAA, “when a child under the age of consent [was] involved[i] the law conclusively presume[d] force and the

question of consent [was] immaterial." Dovi`s, snprcc 873 A.2d at 1105 (quoting

l\..l lJ\

Uni`ted Stro‘es 1’. Jonesq 477 F.2d 1213, 1218 (D.C`. Cir. 1973)). However, through the ASAA, the C`ouncil created a new statutory scheme for sexual assault offenses, in which force is no longer required as a pre-requisite to adult sexual assault._ and thus, the presumption of force in child sexual assaults has become an anachronism."l For example under the ASAA, second-degree sexual abuse (a general sexual assault crime not the child-specific crime at issue in this case) can be committed by placing the victim in reasonable fear rt'i'.t/ioiu force D.C. Code § 22-3003 (1). ln addition. force is merely one of four circumstances that can elevate nonconsensual intercourse to first-degree sexual abuse which carries a ten-year-greater maximum penalty. See D.C. Code § 22-3002 (a). 111 this way` the ASAA embodies the notion that force is

not essential to the commission of sexual assault offenses, a view that is consistent

with a national shift in attitudes toward sexual assault.14

ll Consent remains a defense to general sexual assault crimes D C`. Code §22 3-007 but the ASAA did not create a lack- of-force defense .See D. C. Code §22 -3001 (4) )(defining consent such that a victim s nonconsensual submission may be obtained by threats or coercion, notjust force).

'4 More than twenty states punish non-consensual or coerced sexual intercourse between adults without requiring a showing that the perpetrator used force or threatened imminent force (though many ofthese states, like the District of Columbia, also have a more serious offense available when a perpetrator uses force or threatens imminent force). See Alaska Stat. § 1 1.41.410 (a)(l); Ariz. Rev. Stat. §13-1406(A); Colo. Rev. Stat. _§`18- 3-402(1}(a);De1 Code tit. ll § 772 (a) )(l); Fla. Stat. § 794.011 (b) & (e); ldaho Code§ 18- 6101 (6); lowa Code §709. l (11; Kan. Stat. §21-5503(a)(1)(A); Micli. Comp. Laws § 750.520d tl](b); Mont. Code §45-5-503(1);Nev.Rev.Stat.§200.366(1)(a);1\l.l-l.Rev.Stat.§632-A:2(m); 18

26

The omission of any force requirement or lack-of`-force defense for sexual abuse offenses was a conscious decision by the Council in drafting the iiiSAA.l5 lnstead, the ASAA provides for an increased potential penalty when force is used against an adult by punishing first-degree sexual abuse with up to thirty years in prison, while punishing second-degree sexual abuse with only up to twenty years in prison. D.C. Code §§ 22-30021 22-3003.'“ The ASAA also symmetrically authorizes an additional penalty of ten years for the use of force to commit child sexual abuse Specifrcally, in addition to the ten-year maximum penalty for second-

degree child sexual abuse the trial court could impose upon proofthat a defendant

Pa. Cons. Stat. § 3124,1; ll R.l. Gen. Laws § 11-37-2 (2); S.C. Code § 16-3-654(1)(a); S.D. Codified Laws § 22-22-1 (2); Tenn. Code § 39-13-503 (2); Utah Code § 76-5-402(1); Vt. Stat. Tit. 13 § 3252 (a)(|); Wash. Rev. Code § 9A.44.060 (|)(a); Wis. Stat. § 940.225 (3); Wyo. Stat. § 6-2-303 (a)(ii); see also FB| Criminal lustice lnformation Services Division. “Reponing Rape in 2013."’ at 2 (Apr. 9. 2014) (defining rape without reference to force as, “Penetration. no matter how slight . . . without the consent ofthe victim").

"`_` The Council received support from multiple parties for its decision to omit a force requirement_ see Comment of Denise Snyder, D.C`. Rape Crisis Center. on Bill 10-87 (Jun. 8_ 1994); Testimony ofDiana Savit. Women`s Bar Association of D.C., on Bill 10-871a15 (Sep. 22, 1993), and the Council did not amend the structure of the ASAA in response to the suggestion that lack ol` force and consent were essentially equivalent, see Comment of Shirlimarie l\/chroy-Gray. D.C. Public Defender Service, on Bill 10-97. at 4- 5 (Sep. 23, 1993).

"‘ The penalty for an ASAA crime may be further enhanced if additional a t rravating circumstances are resent. See D.C. Code § 22-3020 (2012 Re l.). Z¢l= 12 12

27 used force a consecutive sentence ofup to ten years ifa defendant is also convicted

ofthird-degree sexual abuse

Upon this review of the ASAA`s plain language and legislative history, we conclude that the ASAA does not retain a presumption of force for sexual contact with children. Thus. the fact that there is a four or more year age gap between the defendant and child victim of sexual assault, does not trigger a presumption that force was used during the sexual contact. lnstead, in a criminal prosecution in which both third-degree sexual abuse and second-degree child sexual abuse are charged, the force element ofthird-degree sexual abuse must be proven independently from the four-year age gap requirement under second-degree child sexual abuse Accordingly, it is possible to commit second-degree child sexual abuse without committing third-degree sexual abuse and thus, those offenses do not merge lmportantly_ we note that in this case the trial court made findings that appellant actually used force against R.j. without relying on a presumption of force arising from R.J.`s youth. Thusi because l\/l.S.`s adjudication of delinquency for third- degree sexual abuse rested on independent findings that he used force against R.l.

(the unique element for third-degree abuse)i those adjudications are affirmed."

li Our conclusion that misdemeanor sexual abuse and fourth-degree sexual abuse merge into second-degree child sexual abuse does not result in lenient

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lll. Conclusion

C`ontrary to the parties` contentions, the plain language and legislative history ofthe Anti-Sexual Abuse Act of 1994 do not clearly indicate a policy on merger of the various sexual assault offenses We hold, based upon our analysis ofthe ASAA and our prior decisions in Davis and B/oc/ri)urger, that every act fullilling the elements ofsecond-degree child sexual abuse necessarily also fulfills the elements ofmisdemeanor sexual abuse and fourth-degree sexual abuse ln other wor'ds. it is impossible to commit second-degree child sexual abuse without triggering a conclusive presumption that the Child victim was incapable ofgiving permission, as required for misdemeanor sexual abuse lt is also impossible to commit second- degree child sexual abuse without triggering a conclusive presumption that the child

victim was incapable ofappraising the nature ofthe conduct. as required for fourth-

treatment of convicted child abusers. Sexual contact with an adult who could not appraise the nature of the conduct leads to a maximum penalty ofjust five years, and sexual contact without permission leads to a maximum penalty ofjust 180 days. D.C. Code §§ 22-3005, 22-3006. Those crimes merge into second-degree child sexual abuse but a perpetrator of second-degree child sexual abuse faces an even greater maximum penalty of ten years, reflecting the legislative intent to protect children. lfthe perpetrator uses force to accomplish the sexual contact with a child at least four years younger than the perpetrator, the charge of third-degree sexual abuse which does not merge allows an additional ten-year penalty beyond that for second-degree child sexual abuse commensurate with the increased penalty for using force during an abusive sexual act with an adult.

29

degree sexual abuse Thus, the offenses of misdemeanor sexual abuse and fourth-

degree sexual abuse merge into second-degree child sexual abuse

ln contrast, we hold that the ASAA does not presume a use of force merely by the fact that a defendant is at least four years older than a child victim of sexual assault, and the government’s proof that a defendant used force to accomplish a sexual contact may sustain an independent adjudication of delinquency (or conviction) for third-degree sexual abuse Thus_ appellant`s adjudications of delinquency for third-degree child sexual abuse having rested on independent findings that appellant actually used force against the child victim. do not merge with his second-degree child sexual abuse adjudications Accordingly. we affirm in

part and remand for merger consistent with this opinion.""`

m Appellant`s briefs discussed .ludge l"r`arrell`s concurring opinion in Davis in order to provide additional support for his merger claims. ln his concurrence .ludge Farrell indicated that he had ‘“strong reservations" about whether the Council intended to allow the government to charge general sexual abuse offenses in circumstances in which the victim is a child. .ludge Farrell opined that by charging Davis with misdemeanor sexual abuse for engaging in sexual conduct with a child, the government had "reached outside [of the] hierarchy"' of child sexual abuse offenses to charge a general sexual abuse offense which likely was not intended by the Council. Dovis, siiprrx 873 A.2d at l 106. ln our majority opinion in Dovi's, we decided to leave .ludge Farrell`s statutory interpretation ofthe ASAA "`for another occasion[.]" because Davis had not argued that he had been improperly charged and in addition._ we observed that "[l]acially, the misdemeanor sexual abuse statute [was] applicable to Davis`s offense against his daughter[.]" [d.

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So ord ered.

While appellant discussed Judge Farrell"s concurring opinion1 appellant made clear several times in his briefs and at oral argument that he is not arguing that he was improperly charged in this case See, e.g., Reply 1311 of Appellant at 9, /n re M.S., l\lo. lS-FS-3 l 3 (l\/lay 25, 2016) (‘“l'vl.S. is not challenging [the government`s] charging decisions"); i`d. at 8 ("M.S. does not argue . . . that the District could not charge the general sexual assault offenses given that the complainant in this case was a child."); see o/so Oral Argument_. at 10:21. fn re /l/I.S.. l\lo. l5-FS-3 l 3 (.lune l, 2016) (statement from defense counsel that "[w]e`re not saying that the crimes can`t be charged, we"rejust saying that they have to merge"}. Accordingly, because appellant is not challenging the government"s decision to charge him with general sexual abuse offenses in this case we again leave for another occasion the issue of whether the government may charge general sexual abuse in circumstances in which child sexual abuse offenses are applicable

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Appendix A: Table of Elements of the ASAA Crimcs at issue

Crime_ + Elcmen_ts T_St_atu_tp_r;g §grirc_e Second- Degiee Sexual Contact with a Chil_d § 22-3009 'Child Sexual Defendnnt‘ is or 7eosr 4 leors O_/der § 22-3009 Abuse Tinor the Child iilntent to Abuse Eummate. Harass1 §§-3001 (9) Deg_rade, or Arouse or Gratify Sexual S`§“§ §§ t§§@§I§§g§§§§§§§f§§§§§§§§§," §§§1§§§§1§1 Deg.rade, or Arouse or Gratify Sexual Sexual Abuse ;;;:1:t};;:::s[:_i’;:::;£:;/:\:;n flint tire ` §22- 3005 (2)(A) Appirns‘ing tire Nri.'iir e o_)' the Condirc! latent to Abuse Humiliate llarass § 22-0 001 (9) Deg.rade, or Arouse or Gratify Sexual i:iiieififi:(:buse Hummate iiarass._ h § 22-3001 (9)

Degrade or Arouse or Gratify Sexual

Desire