In re G.T.

Annotate this Case

In re G.T. (96-610); 170 Vt. 507; 758 A.2d 301

[Filed 19-May-2000]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-610

In re G.T., Juvenile Supreme Court

On Appeal from
Windham Family Court

September Term, 1997

Theresa S. DiMauro, J.

Robert M. Fisher, Windham County Deputy State's Attorney, Brattleboro,
for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.

PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., and Gibson, J.,
Specially Assigned

DOOLEY, J. G.T. appeals from a family court order adjudicating him to
be a delinquent child because he is guilty of statutory rape, that is, he
engaged in a sexual act with a person under the age of sixteen years, in
violation of 13 V.S.A. § 3252(a)(3). At the time of the alleged offense,
G.T. was fourteen years of age. He contends that, as a person within the
protection of the statutory rape statute, he cannot be charged with
violating the statute. We agree and reverse.

The trial court's findings are not contested on appeal. G.T. lived
across the street from M.N., a twelve-year-old girl. The two had been
friends, but had never had sexual contact with each other prior to the
incident in question. One night in October 1995, while G.T. and M.N.

were watching a television movie in M.N.'s house, G.T. began kissing M.N.
on the mouth. G.T. then pulled M.N.'s legs out straight, pulled her shorts
down, pulled his pants down, and got on top of her. He continued kissing
her with his hands on her shoulders. M.N., who had never previously had
intercourse, felt what she believed was G.T.'s penis in her vagina. G.T.
asked if it hurt, but did not stop when M.N. said it hurt. Although she
was not afraid of him, M.N. was not sure what G.T. would have done if she
had pushed him off of her.

G.T.'s actions were interrupted when M.N.'s mother and boyfriend
unexpectedly returned to the house. They saw G.T. scramble up off M.N.,
but did not observe sexual contact. They ordered G.T. out of the house.
M.N. began crying and ran upstairs. She revealed to her mother what had
occurred.

On these facts, the State alleged that G.T. had committed statutory
rape and, therefore, had engaged in a delinquent act. Based upon the
above facts, the family court adjudicated G.T. a delinquent child, and
this appeal followed. Some context is necessary to frame the issue before
us. A "delinquent child" is a child between the ages of ten and sixteen
who has committed a delinquent act. See 33 V.S.A. § 5502(a)(1), (4). A
"delinquent act" is defined, in relevant part, as "an act designated a
crime under the laws of this state." Id. § 5502(a)(3). The question we
must address is whether the family court properly found that G.T.
committed a crime, specifically the crime of statutory rape.

The crime of statutory rape is defined in 13 V.S.A. § 3252(a)(3) as
follows:

(a) A person who engages in a sexual act with another
person and

. . .

(3) The other person is under the age of 16, except
where the persons are married to each other and the sexual
act is consensual;

. . .

shall be imprisoned for not more than 20 years, or fined
not more than $10,000.00, or both.

G.T. argues that the juxtaposition of the word "person" in the two parts of
the statute shows that the Legislature intended that the perpetrator be a
person of sixteen years of age or older. Although G.T. recognizes that
the plain meaning of the term might not contain that limitation, he argues
that the context does require such a limitation.

G.T. also stresses that we have held that statutory rape is a strict
liability offense, see State v. Searles, 159 Vt. 525, 528-29, 621 A.2d 1281, 1283 (1993), for which the only elements are the age of the "victim"
and the presence of a sexual act, see State v. Barlow, 160 Vt. 527, 530,
630 A.2d 1299, 1301 (1993). Thus, under the State's theory, both G.T. and
M.N. have necessarily committed the crime, and all consensual sexual
activity between teenagers is a felony for both participants. Given the
prevalence of such activity, see Vermont Dep't of Health, Vermont Youth
Risk Behavior Survey 53-54 (1997) (among students in the eleventh grade,
the year in which they generally turn sixteen, fifty-six percent of males
and fifty percent of females report having had sexual intercourse)(FN1)
and the potential sentence of twenty years in jail,(FN2) G.T. argues that
such a construction creates absurd, irrational or unjust results.

As G.T. emphasizes, we faced a similar statutory construction
determination in In re P.M., 156 Vt. 303, 592 A.2d 862 (1991), a
delinquency proceeding in which the male juvenile, who was almost fifteen
years old, engaged in inappropriate sexual activity with a young girl who
was almost nine years old. In P.M., the juvenile was charged with lewd
and lascivious conduct with a child under sixteen years of age, in
violation of 13 V.S.A. § 2602, and argued that the perpetrator could not
also be a child under sixteen years if the sexual activity was consensual.
As in this case, the statute was silent on the age of the perpetrator.
Similar to this case, the juvenile argued that it was absurd to believe
that the Legislature intended to make teenage petting a felony.

Although we rejected the juvenile's argument in P.M., we found that
"age differential is an important factor" in determining whether the
juvenile engaged in a delinquent act because "common-sense community
standards" must control what is lewd and lascivious conduct. See id. at
308, 592 A.2d at 864. We concluded:

Under the facts of this case, considering the age disparity of the
participants, § 2602 is sufficiently certain to inform persons of
reasonable intelligence that the conduct engaged in by P.M. is
proscribed.

Id.

G.T. argues that if we took a similar approach here we would reject
prosecution under § 3252(a)(3) because the age differential is much
narrower than in P.M., and the State can charge G.T. under § 3252(a)(1),
which criminalizes non-consensual or coerced, compelled participation in a
sexual act.

Although P.M. is helpful, we do not find it controlling. In P.M., the
issue was whether the conduct of the juvenile met the broad and general
standard of "lewd and lascivious conduct," and this Court defined what
factors were relevant to that determination. Here the standard, if it

applies, is narrow and specific. See In re John C., 569 A.2d 1154, 1156
(Conn. Ct. App. 1990) (criminal statute on impairing the morals of
children covered "any person" and, therefore, a minor defendant); In re
Interest of J.D.G., 498 S.W.2d 786, 789 (Mo. 1973) (rape statute covering
"every person" who has intercourse with a female child under the age of
sixteen years applies to boy under sixteen). Nevertheless, we concluded
that the statute involved in that case, § 2602, "concerns situations where
a child is sexually exploited by another person." We believe that §
3252(a)(3) also concerns those situations.

Although P.M. is not controlling, we find three other reasons to
follow its approach and question the apparent plain meaning of §
3252(a)(3) in this context. The first is that the Legislature has taken
other actions which appear inconsistent with the plain meaning of §
3252(a)(3). Similar inconsistencies form the basis for the decision in
Planned Parenthood Affiliates v. Van de Kamp, 226 Cal. Rptr. 361 (Cal. Ct.
App. 1986), a case discussed at length in P.M.

In Van de Kamp, reproductive health care providers sued the California
Attorney General to overturn his ruling requiring health care providers to
report to law enforcement, under the California child abuse reporting law,
the names of children under fourteen years of age who they believed had
engaged in voluntary, consensual sexual activity with another minor of
similar age. The Attorney General had ruled that such reporting was
required because California law included within the crime of sexual abuse
lewd and lascivious conduct upon or with the body of a minor under fourteen
years of age and did not require that the perpetrator be fourteen years of
age or older. In essence, the Attorney General had ruled that every
sexually active child under fourteen years of age was a child abuse
victim, perpetrator or both, and every medical care provider

who learned of this activity in the course of extending medical care was
required to report it to law enforcement authorities for investigation of
prosecution. The failure of a medical care provider to report, when
required by the law, is a crime in California.

The court in Van de Kemp agreed with the providers' contention that
minors would not seek reproduction-related health care if no
confidentiality requirements applied and their circumstances were
automatically reported for a criminal investigation. Accordingly, it held
that the Legislature could not have intended that the providers report as
child abuse all voluntary sexual activity of minors under fourteen years.
It reached that conclusion in part by holding that the underlying criminal
statute does not apply to sexual activity between partners who are both
under the age of fourteen. See id. at 376-77. Contrary to the
characterization in the dissent, this holding is not dicta.

Although the context of this decision is different, the exact conflict
that underlies the Van de Kamp decision is present in Vermont. A "child
who is sexually abused ... by any person" is an "abused or neglected
child." 33 V.S.A. § 4912(2). Rape of a child is sexual abuse. See id. §
4912(8).(FN3) If any health care provider; school teacher, librarian,
principal, or guidance counselor; mental health professional; day care
worker; social worker; police or probation officer; or camp owner,
administrator or counselor, among others, has reason to believe a child has
been

abused, that person must report that fact to the Department of Social and
Rehabilitation Services (SRS) within twenty-four hours. See id. §
4913(a). Failure to make such a report is a misdemeanor, subject to a
fine of not more than $500. See id. § 4913(e).

The Commissioner of SRS is required to commence an investigation
within 72 hours of receiving the report. See id. § 4915(a). Normally the
investigation must include a visit to the child's place of residence and
an interview with the child, see id. § 4915(b)(1), (2), and determine the
"identity of the person responsible for such abuse or neglect," id. §
4915(b)(4). If the abuse is substantiated, the Commissioner or a designee
"shall promptly inform a parent or guardian of the child." Id. §
4916(e)(1). The written records of the SRS investigation are placed in a
registry of substantiated child abuse cases indexed by the name of the
child, during the child's minority, and by the name of the perpetrator.
See id. § 4916(a), (g). Registry information may be provided to persons
designated by the Commissioner, see id. 4916(d), and is available to day
care providers for background checks on job applicants and staff. See In
re Selivonik, 164 Vt. 383, 385 n.2, 670 A.2d 831, 833 (1995). Thus,
placement of information in the registry represents a substantial stigma
for the perpetrator, see id. at 387, 670 A.2d at 834, and a substantial
privacy invasion for the abused child.

Under the State's theory in this case, if two persons under sixteen
years of age commit consensual, mutual sexual acts with each other, they
are both guilty of statutory rape. Thus, under the child abuse reporting
laws, any of the listed professionals who learn of the acts must report
them to SRS or risk prosecution. SRS must notify each child's parents and
list both children in the child abuse registry as victims and
perpetrators. In Selvonik, we noted the irony of maintaining confidential
the fact and detail of a juvenile delinquency adjudication, while placing

and disseminating information about the same juvenile in the child abuse
registry. See id. Here the tension goes beyond irony. We seriously
doubt the that Legislature intended to label a juvenile under sixteen
years of age who engages in a sexual act a child abuser for life.

There is another strong indication that the Legislature did not intend
this result. The State of Vermont, with approval of the Legislature, has
accepted funds under the Family Planning Services and Population Research
Act of 1970, P.L. 91-572, 84 Stat. 1504 (Dec. 24, 1970) (codified as 42
U.S.C. §§ 300 to 300a-5, 3505a, 3505b). Among the Act's stated objectives
are "to assist in making comprehensive voluntary family planning services
readily available to all persons desiring such services" and "to develop
and make readily available information . . . on family planning . . . to
all persons desiring such information." Id., § 2(1) and (5) (emphasis
added). The program, also known as Title X of the Public Health Service
Act, has served teenagers since its inception. See Planned Parenthood
Federation of America, Inc. v. Heckler, 712 F.2d 650, 652 (D.C. Cir. 1983).
Indeed, since enacting Title X, Congress has: "frequently expressed its
increasing concern about the still unmet family planning needs of sexually
active teenagers," amending the statute in 1978 to require that Title X
projects offer "'a broad range of acceptable and effective family planning
methods and services (including . . . services for adolescents).'" Id.
(quoting 42 U.S.C. § 300(a) and citing congressional committee reports
from 1974 and 1975).

Notwithstanding statutory language encouraging family involvement in
the provision of family planning services to teenagers, the federal courts
have invalidated regulations requiring Title X grantees to notify parents
or guardians before providing contraceptives to unemancipated minors. See
id. at 660-61; New York v. Heckler, 719 F.2d 1191, 1196 (2d Cir. 1983).
The

D.C. Circuit put particular emphasis on Congress's finding that
"confidentiality [is] essential to attract adolescents to the Title X
clinics," without which the availability of family planning services to
teenagers would be "severely undermined." Planned Parenthood, 712 F.2d at
660. Under current federal regulations, a recipient of Title X funds may
not require, whether pursuant to state law or otherwise, that parents give
consent, or even be notified of, the services being provided. See County
of St. Charles v. Missouri Family Health Council, 107 F.3d 682, 685 (8th
Cir. 1997), cert. denied, 118 S. Ct. 160 (1997); Does v. Utah Dep't of
Health, 776 F.2d 253, 255-56 (10th Cir. 1985); Parents United for Better
Schools, Inc. v. School Dist. of Philadelphia Bd. of Educ., 978 F. Supp. 197, 208-09 (E.D. Pa. 1997).

At best, the State's interpretation means that family planning
providers are put in the position where they must abet the commission of a
felony and may not disclose their assistance. At worst, they are placed
between directly conflicting legal requirements: to disclose child abuse
that they reasonably believe is occurring, and to comply with federal
confidentiality requirements. We must question a statutory construction
that would create such a conflict.

The second reason is that the State's construction of 13 V.S.A. §
3252(a)(3) involves a breadth of prosecutorial discretion that raises
serious concerns about whether the resulting prosecutions are consistent
with equal protection of the law. In this case, the prosecutor was candid
that he believed G.T. had violated § 3252(a)(1) which provides:

(a) A person who engages in a sexual act with another person and
(1) Compels the other person to participate in a sexual act:
(A) Without the consent of the other person; or
(B) By threatening or coercing the other person

commits a felony. He chose to charge the case under § 3252(a)(3) because
it creates a strict

liability offense which is easy to prove. Because sexual conduct is
private, prosecution necessarily arises from complaints. The prosecutor
added at argument that the Windham County State's Attorney's office
receives numerous complaints to prosecute teenagers under § 3252(a)(3),
usually from parents, but does so only when there is evidence of coercion
or a lack of true consent. Thus, the prosecutor's office brings
delinquency proceedings only when it believes the juvenile has acted
without the consent of the other juvenile in violation of § 3252(a)(1)(A)
or by coercing the other juvenile in violation of § 3252(a)(1)(B), but it
never charges the juvenile committed either crime. Instead, it charges
that the juvenile committed a violation of § 3252(3) so that it does not
have to prove the presence of the exact elements it found to justify the
prosecution. Thus, the prosecutor determines what crime the juvenile has
committed, but charges in such a way as to ensure that the juvenile never
has the opportunity to show that he or she did not commit the crime found
by the prosecutor.

Although we have only a limited record here, we note that the
selective enforcement of the underlying statute has the hallmarks that
other courts have relied upon to find discriminatory prosecution. See,
e.g., People v. Acme Markets, Inc., 334 N.E.2d 555, 558 (N.Y. 1975)
(discriminatory enforcement found where Sunday sales law was unenforced,
save upon complaint); State v. Vadnais, 202 N.W.2d 657, 659-60 (Minn.
1972) (exclusion of class of violators intended to be included was
discriminatory enforcement). We are not, however, suggesting that we
should impose limits on prosecutorial discretion; we are questioning
instead a statutory interpretation that necessarily results in this kind
of enforcement administration. It is one thing to give discretion in
enforcing a legislatively defined crime; it is quite another to give to
prosecutors the power to define the crime. See In re P.M., 156 Vt. at
315, 592 A.2d at 868 (Dooley, J., dissenting). As

Professor Sanford H. Kadish observed in his seminal work on police
discretion:

One kind of systematic nonenforcement by the police is
produced by criminal statutes which seem deliberately to
over-criminalize, in the sense of encompassing conduct not
the target of legislative concern, in order to assure that
suitable suspects will be prevented from escaping through
legal loopholes as the result of the inability of the
prosecution to prove acts which bring the defendants within
the scope of the prohibited conduct. The prime example are
laws prohibiting gambling....

Insofar as such laws purport to bring within the
condemnation of the criminal statute kinds of activities
whose moral neutrality, if not innocence, is widely
recognized, they raise basic issues of a morally acceptable
criminal code. Moreover, these laws are in effect
equivalent to enactments of a broad legislative policy
against, for example, undesirable gambling, leaving it to
the police to further that policy by such arrests as seem to
them compatible with it. From one point of view such
statutes invite a danger cognate to that of defining a crime
by analogy, augmented by the fact that it is the policeman
who is defining criminal conduct rather than the court. That
no actual abuse has been demonstrated in police
administration of an overdrawn statute, such as gambling,
would not seem to answer the moral and precedential
objections to this tactic, any more than the fact that
courts in states where the doctrine of common law crimes
exists have not in recent years abused it would answer the
objections to this doctrine.

S. Kadish, Legal Norm in the Police and Sentencing Processes, 75 Harv. L.
Rev. 904, 909-11 (1962). The preferable response to this kind of
discretion is to reduce it by narrowing the ambit of the statute. See N.
Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion,
19 U.C.L.A. L. Rev. 1, 12 (1971).

The third reason to question the plain meaning of § 3252(a)(3) is that
prosecution for consensual sexual acts between juveniles raises important
privacy concerns that implicate constitutional rights. The United States
Supreme Court has held that "the right to privacy in connection with
decisions affecting procreation extends to minors as well as adults,"
Carey v.

Population Servs. Int'l, 431 U.S. 678, 693 (1977), in striking down a New
York statute which prohibited distribution of contraceptive devices to
minors. Although the Court explicitly did not decide whether minors have
a constitutional right to engage in consensual sexual behavior, see id. at
694 n.17, an outright prohibition on sexual activity appears inconsistent
with the rationale for the decision, see In re Pima County Juvenile
Appeal, 790 P.2d 723, 733-34 (Ariz. 1990) (en banc) (Feldman, J.,
dissenting).

We have not had occasion to determine the extent to which privacy is
protected generally under the Vermont Constitution, see State v. Barlow,
160 Vt. at 528, 630 A.2d at 1300, although other states have found such
protection even in the absence of a specific privacy provision, see, e.g.,
Powell v. State, 510 S.E.2d 18, 22 (Ga. 1998). In Barlow, a statutory rape
case involving an adult defendant, we did not decide whether minors have a
right to privacy in sexual matters under the Vermont Constitution because
we concluded that the state had a compelling interest in protecting minors
that was served by the statute at issue. 160 Vt. at 528, 630 A.2d at 1300.
We noted concerns about the dangers of pregnancy, venereal disease, damage
to reproductive organs, the lack of considered consent, heightened
vulnerability to physical and psychological harm, and the lack of mature
judgment among the many significant interests of the state. See id.
(citing State v. Munz, 355 N.W.2d 576, 585 (Iowa 1984)). We also stressed
our concern for protecting the well-being of minors from exploitation.
See id. at 529, 630 A.2d at 1300 (quoting State v. Searles, 159 Vt. 525,
528, 621 A.2d 1281, 1283 (1993)).

Although we again do not decide whether sexual privacy is protected by
the Vermont Constitution, we do not believe that Barlow is necessarily
inconsistent with such protection for consensual sexual activity between
minors. In a case relied upon in Barlow, the Florida Supreme

Court found that a minor's right to privacy did not protect an adult from
statutory rape prosecution, even though the minor consented to the sexual
activity. See Jones v. State, 640 So. 2d 1084, 1087 (Fla. 1994). When
the Court confronted a similar question in a case where the sexual
activities were between juveniles under the age of consent, the Court
found that the State failed to demonstrate the compelling state interest
to justify this application of the statutory rape statute, noting that the
statute was "not being utilized as a shield to protect a minor, but rather
... as a weapon to adjudicate a minor delinquent." B.B. v. State, 659 So. 2d 256, 260 (Fla. 1995); but see J.A.S. v. State, 705 So. 2d 1381, 1385
(Fla. 1998) (statutory rape charge of fifteen-year-old boy for having
consensual sex with twelve-year-old girl did not violate boy's privacy
rights).(FN4)

We have avoided construction of a statute that threatens its
constitutionality. See, e.g., Central Vermont Ry., Inc. v. Department of
Taxes, 144 Vt. 601, 604, 480 A.2d 419, 421 (1984); see also Jones v.
United States, 526 U.S. 227, 239 (1999) (courts should avoid construing
statutes in a manner to create serious constitutional problems, whenever
possible). However we ultimately decide whether the sexual privacy of
juveniles is protected under the Vermont Constitution, we must take into
account the constitutional question in construing 13 V.S.A. § 3252(a)(3) in
the case before us.

We return to the statutory construction question before us. We have
expressed the plain

meaning rule as a presumption, Brennan v. Town of Colchester, ___ Vt. ___,
___, 730 A.2d 601, 603 (1999), recognizing that in some circumstances the
literal meaning of the words employed cannot prevail. We are faced with
the unique confluence of three factors that weigh heavily against the plain
meaning rule: (1) statutes that deal with the same subject matter should be
construed together to harmonize them, see, e.g., In re 1650 Cases of
Seized Liquor, 168 Vt. 314, 321, 721 A.2d 100, 105 (1998) (we "consider
the purpose of the statute and look to the broad subject matter of the law,
its effects, consequences and reason and spirit of the law"); Central
Vermont Hosp., Inc. v. Town of Berlin, 164 Vt. 456, 459, 672 A.2d 474, 476
(1995); (2) statutes should be construed so as not to reach absurd results
manifestly unintended by the Legislature, see Roddy v. Roddy, 168 Vt. 343,
347, 721 A.2d 124, 128 (1998); and (3) statutes should be construed to
avoid constitutional difficulties, if possible, see supra. In exceptional
circumstances, we must narrow the reach of a broadly-worded statute to
make it consistent with other statutes or to avoid serious questions of
constitutionality. State v. Read, 165 Vt. 141, 148-49, 680 A.2d 944,
948-49 (1996); In re P.M., 156 Vt. at 307-08, 592 A.2d at 864. We believe
this is such a case.

Our analysis parallels that of the Maryland Court of Appeals in
Schochet v. State, 580 A.2d 176, 183 (Md. 1990), which found that a
broadly worded statute criminalizing fellatio did not apply to consensual,
noncommercial, heterosexual activity between adults in the privacy of the
home. The Court noted that the "very broad and sweeping nature" of the
language, with no specifics, renders the statute "reasonably susceptible
to different constructions" and susceptible to constitutional challenge,
and narrowed it to avoid the constitutional question. See id.; see also
People v. Lino, 527 N.W.2d 434, 441 (Mich. 1994) (Levin, J., concurring)
(accepting similar construction of Michigan statute).

In order to make § 3252(a)(3) consistent with the child abuse
reporting statute and the legislatively-approved family planning services
for minors, and to avoid the real possibility of discriminatory
enforcement and interference with the privacy rights of defendant and the
asserted victim, we construe subsection (a)(3) as inapplicable in cases
where the alleged perpetrator is also a victim under the age of consent.
We agree with the Florida Supreme Court that the statute is intended as a
shield for minors and not a sword against them.

We emphasize that we reach this result as a fair construction of the
relevant legislation as it is currently worded. The Legislature has the
power to specifically address the issue before us by amendment to the
statute. If it decides that juveniles are both perpetrators and victims of
statutory rape when they engage in consensual intercourse, it can clarify
the apparently inconsistent child abuse reporting and family planning
laws.

Meanwhile, unlike the dissent, we doubt that our decision will have
any effect on other cases because, as discussed above, the prosecutor has
made clear that he will bring cases like this only where he believes there
has been non-consensual or coerced sexual acts between persons under the
age of sixteen, conduct that is a crime under 13 V.S.A. § 3252(a)(1). We
also doubt that we impose upon prosecutors by forcing them to prove the
crime they believe occurred, rather than allowing them to rely on the
relaxed burden of proof under § 3252(a)(3).(FN5) This decision,

however, will bring needed clarity to the obligation to report child sexual
activity as child abuse under the child abuse reporting statutes.(FN6)

Reversed.

FOR THE COURT:

___________________________________________
Associate Justice

--------------------------------------------------------------------------------

FN1. The term "sexual act" in § 3252 is broader than sexual intercourse,
including "any intrusion, however slight, by any part of a person's body or
any object into the genital or anal opening of another." 13 V.S.A. §
3251(1). No data are available on the percentage of juveniles who have
committed a sexual act by their sixteenth birthday.

FN2. We agree with the dissent that a fifteen year-old juvenile does not
face a penalty of twenty years in jail. However, the juvenile can be placed
in a "treatment, rehabilitative or educational institution or facility," 33
V.S.A. § 5529(a)(3), and the adjudication of delinquency becomes part of the
juvenile's record available to the court in a future sentencing proceeding.
Id. § 5536(b)(3).

FN3. To avoid the conflict between the reporting law and the coverage of
statutory rape, the dissent suggests that we interpret rape, as defined in §
4912(8), as not including statutory rape, and the professional's duty to
report abuse, a term explicitly defined in § 4912(2), as sufficiently
discretionary to allow the professional not to report statutory rape in some
instances. If these are the proper interpretations of the statutes
involved, they deviate far more from the plain meaning of the legislature's
words than the deviation from the language of 13 V.S.A. § 3252(3) accepted in
this opinion.

FN4. The dissent suggests that we ignore B.B. and recognize J.A.S. because
the facts here are closer to those in the latter case. Our task is neither
to resolve the tension between Florida decisions nor to determine whether it
would be constitutional to prosecute G.T. on the facts before us. Instead,
our responsibility is to construe 13 V.S.A. § 3252 in light of the factual
circumstances that would be covered by alternative interpretations. If we
construe the statute to allow prosecution based on the facts in J.A.S., we
must also construe it to allow prosecution on the facts of B.B.

FN5. On this point, we apparently differ with the dissent, which argues that
there will be cases in which the state will not be able to prove coercion or
lack of consent despite an age difference between the juveniles. The one
example before us shows to the contrary since the juvenile court found the
elements of coercion, despite not having to make these findings under §
3252(3), so that the prosecutor would have prevailed under § 3252(a)(1)(B).
In essence, the dissent seeks to define a crime, different from that in
either § 3252(a)(1) or 3252(3), a crime that the State never has to prove.
This reinforces our point that the dissent's construction of the statute
necessarily creates an overly-broad concept of prosecutorial discretion.

FN6. G.T.'s motion to vacate his delinquency adjudication is denied as moot.

------------------------------------------------------------------------------
Dissenting

No. 96-610

In re G.T., Juvenile Supreme Court

On Appeal from
Windham Family Court

September Term, 1997

Theresa S. DiMauro, J.

Robert M. Fisher, Windham County Deputy State's Attorney, Brattleboro,
for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.

PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., and Gibson, J. (Ret.),
Specially Assigned

JOHNSON, J., dissenting. Today, the majority holds that a person
under sixteen years of age cannot be adjudicated a delinquent for having
committed statutory rape. Before examining this broad holding, I want to
emphasize what this case is about, and what it is not about. First, this
is an appeal from an adjudication of delinquency. The appeal does not
concern subjecting juveniles to criminal prosecution for statutory rape.
Indeed, as I explain later in detail, under Vermont law juveniles less
than sixteen years of age cannot be criminally prosecuted for statutory
rape, and thus, notwithstanding the majority's suggestion to the contrary,
see ante, at 3, they cannot be imprisoned for up to twenty years for
violating 13 V.S.A. § 3252(a)(3).

Second, the facts of this case do not lend support to the majority's
concern that juveniles will be punished for consensual sex. As found by
the trial court, the facts demonstrate that the fourteen-year-old boy
surprised the twelve-year-old girl by suddenly engaging in sex with her

even though they had never had any sexual contact prior to that time.
Further, he continued his conduct even after the girl told him that it
hurt. The prosecutor may have had difficulty proving forcible rape, but,
apart from presenting the legal argument that juveniles can never be
adjudicated delinquent for having committed statutory rape, no one is
claiming that the initiation of delinquency proceedings was inappropriate
under the facts of this case.

Third, this case is not about child-abuse reporting laws. None of the
parties contend that construing § 3252(a)(3) according to its plain
meaning would be inconsistent with those laws or would violate any claimed
right of juveniles to engage in sexual intercourse unfettered by
governmental interference. Nevertheless, the majority disregards the
Legislature's intent and follows its own policy based on these speculative
and undocumented concerns. I do not believe that we should decide cases
based on potential conflicts, particularly when the resulting holding
defies legislative intent. Rather, we should construe § 3252(a)(3)
according to its plain meaning and clear legislative intent, and allow the
political or legal processes to change the law if and when the potential
problems posed by the majority actually arise. Accordingly, I dissent.

Understandably, given its holding, the majority does not dwell on the
plain meaning or legislative intent of § 3252(a)(3). Therefore, even
though the majority apparently concedes that a plain-meaning
interpretation of § 3252(a)(3) would permit juveniles under sixteen to be
adjudicated delinquent for having committed statutory rape, I examine this
question in some detail here.

This Court has repeatedly stated that the fundamental rule and
paramount goal of statutory construction is "to discern and give effect to
the intent of the Legislature." State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996); see Roddy v. Roddy, 168 Vt. 343, 348, 721 A.2d 124,
128 (1998); Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998).
When the language of a statute is unambiguous, we presume that the
Legislature intended the plain and ordinary meaning of that language
unless such a construction would violate the purpose of the

legislative scheme or lead to absurd results. See In re Weeks, 167 Vt.
551, 554, 712 A.2d 907, 909 (1998); O'Neill, 165 Vt. at 275, 682 A.2d at
946; Chamberlin v. Vermont Dep't of Taxes, 160 Vt. 578, 580, 632 A.2d 1103, 1104 (1993).

In this case, the language of § 3252(a)(3) is plain and unambiguous,
and the legislative history of the statute further demonstrates that the
Legislature intended the plain meaning expressed therein. In relevant
part, § 3252(a)(3) provides that "[a] person who engages in a sexual act
with another person . . . under the age of 16 . . . shall be imprisoned
for not more than 20 years, or fined not more than $10,000.00, or both."
(Emphasis added.). Notwithstanding G.T.'s arguments to the contrary,
nothing in the language of § 3252(a)(3) suggests that the term "a person"
really means "a person over the age of 16." See O'Neill, 165 Vt. at 275,
682 A.2d at 946 ("It is inappropriate to read into a statute something
which is not there unless it is necessary in order to make the statute
effective.").

Every court considering comparable statutory language in a similar
context has arrived at the same conclusion. See, e.g., In re John L., 257 Cal. Rptr. 682, 684 (Ct. App. 1989) (juvenile could be declared ward of
court for having violated criminal statute making it unlawful for "any
person" to engage in lewd or lascivious conduct with minor); In re John
C., 569 A.2d 1154, 1156 (Conn. App. Ct. 1990) (juvenile could be adjudged
delinquent for having violated statute making it unlawful for "any person"
to engage in acts impairing child's morals; statutory language did not
define violators in terms of age); L.L.N. v. State, 504 So. 2d 6, 8 (Fla.
Dist. Ct. App. 1986) (per curiam) (juvenile could be adjudged delinquent
for having violated statute making it unlawful for "any person" to engage
in lewd or lascivious conduct with minor; statute made no exceptions for
perpetrators under age of sixteen); State v. Edward C., 531 A.2d 672, 673
(Me. 1987) (per curiam) (juvenile could be adjudged delinquent for having
violated statute making it unlawful for "any person" to commit gross sexual
misconduct; statute does not require perpetrator to be minimum age); In re
J.D.G., 498 S.W.2d 786, 789, 791 (Mo. 1973) (juvenile could be adjudged
delinquent for having violated statutory rape statute; words "every
person"

did not exclude persons under seventeen years old); cf. In re J.P., 287 N.E.2d 926, 927 (Ohio 1972) (juvenile could not be adjudged delinquent for
having violated statute making it unlawful for persons "eighteen years of
age or over" to carnally know female under sixteen years of age). See
generally Annotation, Statute Protecting Minors in a Specified Age Range
from Rape or Other Sexual Activity as Applicable to Defendant Minor Within
Protected Age Group, 18 A.L.R. 5th 856, 869-88 (1994) (citing cases).

Even if we were to find ambiguity in the term "a person" contained in
§ 3252(a), any doubt as to the intent of the Legislature would be
eliminated by examining the legislative history of the statute. The
following laws were repealed at the time § 3252(a) was enacted. Section
3201 of Title 13, entitled "Rape by person over sixteen," provided that:

A person over the age of sixteen years who ravishes and carnally
knows a female person of the age of sixteen years or more, by force
and against her will, or unlawfully and carnally knows a female
person under sixteen years of age, with or without her consent, shall
be imprisoned not more than twenty years or fined not more than
$2,000.00, or both.

(Emphasis added.) Section 3202 of Title 13, entitled "Rape by person under
sixteen, provided that:

If a person under the age of sixteen years unlawfully
and carnally knows a female person under the age of sixteen
years with her consent, both persons shall be guilty of a
misdemeanor, and may be committed to the [reform] school. A
person under the age of sixteen years who unlawfully and
carnally knows any female person by force and against her
will shall be punished as provided by section 3201 of this
title.

(Emphasis added.) Thus, before being revised in 1977, our sexual
assault laws explicitly distinguished between perpetrators over sixteen
years of age and those under sixteen years of age. Perpetrators over
sixteen faced twenty years in prison if they committed forcible rape or
engaged in sexual acts, consensual or not, with females under sixteen.
Perpetrators under sixteen were subject to the same punishment for
forcible rape, but were guilty of a misdemeanor and could be sent to
reform school for having consensual sexual relations with females under

sixteen.

The 1977 Senate bill that proposed a revision of the sexual assault
laws was discussed and voted on at a hearing before the Senate Judiciary
Committee on February 16, 1977. At that hearing, committee members
explicitly acknowledged their understanding that there would be no minimum
age for perpetrators under the amended law (current § 3252(a)), but that
persons under sixteen would no longer be subject to criminal prosecution
on felony charges for forcible rape or on misdemeanor charges for underage
consensual sex because they would be dealt with under the new juvenile code
in delinquency proceedings. See Senate Judiciary Committee hearing,
February 16, 1977, at 121-27. In short, when one examines the prior sexual
assault laws and the legislative history of the current statute, there is
little doubt that the Legislature intended the term "a person" in § 3252(a)
to include persons under sixteen. See State v. Read, 165 Vt. 141, 147,
680 A.2d 944, 948 (1996) (courts presume that Legislature makes changes in
law with knowledge of prior legislation on same subject); Holmberg v.
Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993) (legislative history, as
well as history of related statutes on same subject, offer clues to
legislative intent).

II.

The majority does not deny the plain meaning of § 3252(a), but
purports to follow the approach in In re P.M., 156 Vt. 303, 592 A.2d 862
(1991) by questioning the apparent plain meaning of the statute. See
ante, at 5. Contrary to the majority's analysis, P.M. militates strongly
in favor of upholding the plain meaning of § 3252(a). In that case, the
fourteen-year-old juvenile was adjudicated a delinquent for having
violated 13 V.S.A. § 2602, which prohibits "a person" from committing any
lewd or lascivious act upon the body "of a child under the age of sixteen
years." Rejecting P.M.'s arguments that construing the term "a person" to
include persons under the age of sixteen would lead to absurd
consequences, we held that fourteen-year-old P.M. was "a person" under the
plain and ordinary meaning of the statutory language, and thus "could be
found guilty of having committed a delinquent act" for having violated §
2602.

P.M., 156 Vt. 306-07, 592 A.2d at 863. We emphasized that because the case
concerned a delinquency proceeding, "the crucial inquiry" was whether the
act committed by the juvenile was "designated a crime under a statute, not
whether the juvenile could be criminally prosecuted under the statute."
P.M., 156 Vt. at 307, 592 A.2d at 864.

The same is true here. As in P.M., the applicable statute designates
the potential perpetrator simply as "a person," without imposing any age
limitation. As in P.M., this case concerns a delinquency proceeding.
Therefore, the issue is whether G.T.'s act is designated as a crime under §
3252(a)(3), not whether G.T. is subject to criminal prosecution and a
twenty-year sentence under the statute. Indeed, notwithstanding G.T.'s
suggestion to the contrary, neither he nor any other juvenile is subject
to criminal prosecution as an adult under § 3252(a)(3).

At the time § 3252(a)(3) was enacted in 1977, the juvenile code gave
the juvenile court exclusive jurisdiction to adjudicate, within the
context of delinquency proceedings, any criminal charges against persons
under the age of sixteen. See 33 V.S.A. § 634 (Cum. Supp. 1977). Criminal
proceedings against persons under sixteen had to be transferred to juvenile
court. See id. § 635(a) (Cum. Supp. 1977). Hence, as the Senate
Judiciary Committee recognized in considering the bill revising our sexual
assault laws, persons under sixteen violating the new law would not be
subject to the punishment imposed by that law, but rather would be subject
to delinquency proceedings under the juvenile code.

In 1981, § 635(a) was revised to allow persons under sixteen to be
prosecuted as adults in district court for certain criminal offenses
specified in 33 V.S.A. § 635a(a) (1981), now 33 V.S.A. § 5506(a).
Notably, those specified offenses included, and still include under current
law, forcible rape but not statutory rape. See id. § 635a(a)(9); §
5506(a)(9). Thus, as the law stands now, a person under sixteen may be
prosecuted in district court for having committed forcible rape, but may
not be criminally prosecuted, or subjected to the punishment provided in §
3252(a), for having engaged in consensual sex with another juvenile. In
sum, since 1977,

persons under sixteen have not been subject to criminal prosecution for
statutory rape. Thus, G.T.'s concern that juveniles engaging in
consensual sexual relations could be subjected to twenty-year prison
sentences is completely unfounded and cannot be the basis for an argument
that construing § 3252(a)(3) according to its plain meaning would lead to
absurd results.

III.

In the face of this overwhelming evidence of the Legislature's intent
to permit delinquency proceedings against juveniles charged with statutory
rape, the majority elects to ignore that intent based on three potential
problems, two of which have not even been raised, let alone briefed, by the
parties.

The majority first states that a plain-meaning construction of §
3252(a)(3) would be inconsistent with state statutory law requiring the
reporting of child abuse, see 33 V.S.A. § 4913, which is defined to
include rape, 33 V.S.A. § 4912(8), and with federal case law invalidating
regulations requiring parental notification when family planning agencies
provide contraceptives to minors. According to the majority, if juveniles
were included within the ambit of § 3252(a)(3), various professionals,
including family planning providers, would have to report every case of
consensual sexual activity between juveniles under sixteen years of age,
which would violate confidentiality requirements and undermine family
planning policy.

As noted, we do not have the benefit of any briefing on this issue
from the parties. Indeed, the abuse-reporting statute has not even been
brought into question in this case. Nor is there any indication that the
potential problems perceived by the majority have ever actually arisen,
either in this case or elsewhere. Nonetheless, the majority concludes
that, if we were to accept the plain meaning of § 3252(a)(3), any
discovery of consensual sexual relations between juveniles under the age
of sixteen would automatically trigger the duty of professionals to report
the contact as sexual abuse. In so ruling, the majority has impliedly
held that those same professionals are required to report, as sexual
abuse, any sexual relations that they become

aware of between, for example, a sixteen-year-old juvenile and a
fifteen-year-old juvenile.

I would not make such determinations, particularly in the absence of
an actual controversy and briefing on the subject. Requiring automatic
reporting of sexual abuse in every instance of known sexual relations
between fifteen-year-old and sixteen-year-old juveniles would have the same
negative impact on confidentiality and family planning services lamented by
the majority, and yet the majority does not suggest that we abandon §
3252(a)'s plain meaning to assuage those concerns when older juveniles are
involved. If we need to address this issue at all, we should simply
recognize that whether a relationship is an abusive one depends upon the
particular circumstances involved. Cf. J.A.S. v. State, 705 So. 2d 1381, 1387 (Fla. 1998) (while interested parties seek bright-line rules to
determine whether disputed conduct is sanctionable, unique facts of each
case must be considered because human experience is not so easily
categorized, particularly when it concerns intimate relationships between
juveniles).

Although "sexual abuse" is statutorily defined to include "rape," see
33 V.S.A. § 4912(8), the definition does not include the term "statutory
rape," which is viewed as distinct from common-law rape. See Black's Law
Dictionary 1134, 1266 (5th ed. 1979) (defining "statutory rape" separately
from "rape" and noting that modern statutes often materially change
common-law definition of rape to create distinct offense). To be sure,
"consensual" sex between a juvenile and an adult would ordinarily
constitute sexual abuse, but consensual sex between two juveniles would not
necessarily be abusive in nature, depending upon the particular
circumstances. Our law requires various professionals and others working
with children to report abuse when they have "reasonable cause to believe
that any child has been abused." 33 V.S.A. § 4913(a). That discretionary
standard appears to allow professionals to use their expertise in
evaluating particular circumstances before reporting abuse. Cf. Planned
Parenthood Affiliates v. Van de Kamp, 226 Cal. Rptr. 361, 365 (Cal. Ct.
App. 1986) (citing California statute requiring reporting of abuse when it
is objectively reasonable for person, while drawing upon training and
expertise, to entertain suspicion of abuse).

I raise these points only to demonstrate that there are issues that
need to be debated and considered within the context of an actual
controversy before we construe laws not at issue in this case. Unlike the
majority, I am not willing to assume that a rational reading of our child
abuse reporting laws requires us to ignore the Legislature's clear intent
to permit delinquency petitions to be filed against juveniles accused of
statutory rape.

The majority relies heavily on a California intermediate appellate
court - Planned Parenthood - to support its view that Vermont's
child-abuse reporting laws require this Court to ignore the plain meaning
of § 3252(a)(3). An examination of that case and subsequent California
cases considering it reveals that it offers no support whatsoever for the
majority's construction of § 3252(a)(3). As the majority notes, this
Court discussed Planned Parenthood at length in P.M. See ante, at 5. But,
in contrast to what the majority holds today, we quoted extensively from
the California case and relied upon its analysis in declining to read a
minimum age limit for perpetrators into 13 V.S.A. § 2602, which, like §
3252(a)(3), designates potential perpetrators simply as "a person." See
P.M., 156 Vt. at 309, 592 A.2d at 865.

Unlike the instant case, Planned Parenthood directly confronted the
issue of whether the state's child-abuse reporting law required
professionals who had "no knowledge or suspicion of actual abuse, to
nevertheless report a minor as a child abuse victim solely because the
minor is under the age of 14 and has indicated that he or she engages in
voluntary, consensual sexual activity with another minor of a similar
age." 226 Cal. Rptr. at 363. In that case, family planning agencies were
challenging an Attorney General opinion concluding that professionals were
required to report any sexually active child under fourteen as a
sexual-abuse victim, notwithstanding their professional judgment regarding
the circumstances of each particular case. See id. at 366-67. The court
held that the child-abuse reporting law did not apply to "voluntary,
consensual sexual behavior among minors under the age of 14," when, in the
judgment of the reporting professional involved, the sexual contact bore
no indicia of actual abuse. Id. at 381

(emphasis added).

In reaching this conclusion, the court stated that it "does not appear
that a minor under 14 may be found delinquent" for violating a statute
prohibiting lewd and lascivious contact with a minor. Id. at 376. As we
pointed out in P.M., 156 Vt. at 309, 592 A.2d at 864-65, however, the
California court acknowledged that minors over fourteen had been found
delinquent for having violated the statute, which was generally viewed as
applying to older minors who sexually exploited younger, sexually naive
children. See Planned Parenthood, 226 Cal. Rptr. at 376. Accordingly, the
court explicitly limited its holding "to voluntary conduct among minors
under 14 years of age." Id. at 377 n.14; see John L., 257 Cal. Rptr. at
683-84 (implication in Planned Parenthood that voluntary sexual conduct
between minors under fourteen years of age is not encompassed by statute
prohibiting "any person" from committing lewd or lascivious act with child
does not extend to minors over fourteen years of age).

Subsequent California cases have rejected even the limited dicta in
Planned Parenthood suggesting that children under fourteen could not be
found delinquent for having violated the statute prohibiting lewd and
lascivious acts with a child. For example, in In re Jerry M., 69 Cal. Rptr. 2d 148, 151-52 (Cal. Ct. App. 1997), the court concluded that an
eleven-year-old child could be subject to delinquency proceedings for
having committed lewd and lascivious acts against older children. In so
ruling, the court noted that, notwithstanding the dictum in Planned
Parenthood, several courts had concluded that minors under fourteen years
of age could be adjudicated as delinquents for having committed lewd and
lascivious acts against other children. See id. at 151. Similarly, the
court in In re Paul C., 270 Cal. Rptr. 369, 372-73 (Cal. Ct. App. 1990)
rejected the implication in Planned Parenthood that children under
fourteen could never be perpetrators under a statute prohibiting "any
person" from committing a lewd and lascivious act with a child. In the
court's view, the fact that consent could not be used as a defense to
having violated the statute did not mean that all children under fourteen
are incapable of understanding the wrongdoing of their sexual conduct and
thus not subject to delinquency

proceedings. See id. at 373-74.

In short, Planned Parenthood does not support the majority's holding
that juveniles under sixteen cannot be adjudicated as delinquents for
having committed statutory rape. The California court's decision
protecting juveniles from dissemination of information concerning their
sexual practices is not "the equivalent of recognizing a right to engage
in such practices." In re T.A.J., 73 Cal. Rptr. 2d 331, 336 (Cal. Ct.
App. 1998) .

Another reason given by the majority for its holding today is that
applying the plain meaning of § 3252(a)(3) would "raise important privacy
concerns that implicate constitutional rights." See ante, at 10-11. Not
only was this issue never raised by the parties, but the majority fails to
address it head on. The majority does not conclude that § 3252(a)(3)
would be unconstitutional if we were to construe it as the Legislature
intended. Nor does the majority even acknowledge or apply any test for
determining whether a constitutional violation exists. Thus, there is no
weighing of interests and no determination of whether, or the extent to
which, the Vermont Constitution protects sexual privacy with respect to
minors. Indeed, the majority expressly declines to consider whether any
such privacy interest exists. See ante, at 11-12; cf. T.A.J., 73 Cal. Rptr. 2d at 336-37, 341 (no case has suggested that legislature does not
have greater latitude to regulate or proscribe voluntary sexual activity
"by or with" minors than it does with regard to voluntary sexual activity
engaged in by adults; misdemeanor statutory rape law does not
unconstitutionally deprive minors of their right to engage in private
consensual sexual activity); Planned Parenthood, 226 Cal. Rptr. at 379
(although mature minor enjoys same sexual privacy rights as adult, state's
burdening of minor's rights is governed by less rigorous standard than
compelling interest because of state's greater latitude in regulating
conduct of children). In brief, the majority declines to apply §
3252(a)(3)'s plain meaning because of privacy implications neither
identified, examined, or weighed against the state's interests.

In noting its privacy concerns, the majority relies primarily upon
B.B. v. State, 659 So. 2d 256 (Fla. 1995). Again, examination of the case
law reveals that the majority's reliance is unfounded. In B.B., a
plurality of the Florida Supreme Court held that a statute making it a
second-degree felony for minors "of previous chaste character" to engage
in consensual sexual activity violated the Florida Constitution's right of
privacy as applied to two sixteen-year-old juveniles engaging in
consensual sex. Id. at 259-60. Thus, the relevant statute and the factual
circumstances of that case differ significantly from the present case.
Further, not only have courts in other jurisdictions rejected B.B.'s
plurality holding , e.g., T.A.J., 73 Cal. Rptr. 2d at 337-38 (rejecting
B.B. and concluding that minors do not have constitutionally protected
privacy interest in engaging in sexual intercourse), but in 1998 a
unanimous Florida Supreme Court disavowed the very implication in B.B.
that the majority now relies on. The court clarified that in B.B. it had
"held, in essence, that the State could not single out, solely on the
basis of chastity, one of two consenting sixteen-year-old minors for
criminal prosecution." J.A.S., 705 So. 2d at 1385.

The circumstances in J.A.S., unlike in B.B., were strikingly similar
to those in our case. In J.A.S., the court confronted the question of
whether two fifteen-year-old boys could be adjudicated delinquent for
having had consensual sexual intercourse with two twelve-year-old girls, in
violation of Florida's statutory rape law. With respect to B.B., the
court stated: "We find B.B. clearly distinguishable because while both
'defendant' and 'victim' were sixteen in that case, here we have two
fifteen year-old boys engaging in sexual activity with two twelve-year-old
girls." Id. at 1385. Declining to find that minors have an open-ended
privacy right to engage in sexual intercourse with other minors, thereby
shielding them from adjudication as delinquents, the court concluded that
"whatever privacy interest a fifteen-year-old minor has in carnal
intercourse is clearly outweighed by the State's interest in protecting
twelve-year old children from harmful sexual conduct, irrespective of
whether the twelve-year-old 'consented' to the sexual activity." Id. at
1386. The court further concluded that Florida's statutory rape

law, when applied to the circumstances of that case, was "being primarily
utilized as a shield to protect the twelve-year-old girls, rather than a
weapon to arbitrarily adjudicate the fifteen-year-old boys as delinquent."
Id.

The same is true in this case. The primary purpose of Vermont's
statutory rape law is to protect children from harmful sexual contact.
This is no less true when two juveniles are involved. Indeed, in the
latter situation, not only is the victim protected, but the "perpetrator"
is subject only to delinquency proceedings aimed at rehabilitation rather
than punishment.

Under the majority's holding, a fifteen-year-old minor cannot be found
delinquent for the statutory rape of, say, a nine-or ten-year-old minor.
The majority states that this will not impose any great burden on
prosecutors because they can always seek an adjudication of delinquency
based on an allegation of forcible rape under § 3252(a)(1). See ante, at
14; § 3252(a)(1). This reasoning creates the bizarre anomaly that the
term "a person" contained in § 3252(a) means "a person over sixteen" when
used in conjunction with subsection three dealing with statutory rape, but
means "any person, including a person under sixteen," when used in
conjunction with subsection one dealing with forcible rape. More
importantly, the majority fails to acknowledge that there will be
instances, not unlike the present case, where the coercion is subtle and
results from the different age, mental capacity, or maturity of the
participants engaged in the conduct. Although a juvenile court might
conclude in some cases that coercion was involved simply because the
victim's age precluded true consent, there will be other cases in which
forcible rape will be difficult to prove, notwithstanding the presence of
subtle coercion resulting from the age differential of the participants or
other factors.

In criminal statutory rape cases, the use of force or coercion is
relevant at trial not only for purposes of sentencing, but also to help
the factfinder to understand the nature of the offense and weigh the
credibility of the witnesses. See State v. Searles, 159 Vt. 525, 529-30,
621 A.2d 1281, 1284 (1993); State v. Thompson, 150 Vt. 640, 645-46, 556 A.2d 95, 99 (1989). The same applies in delinquency proceedings, perhaps
more so. One could argue that prosecutors should

be given the discretion to bring delinquency petitions against juveniles
based on an allegation of statutory rape, and to demonstrate that
providing the alleged perpetrator with rehabilitative services would be
appropriate under the circumstances because of the age differential of the
participants or the existence of other factors suggesting that coercion
was at work.

Which brings us to the majority's third reason for disregarding §
3252(a)(3)'s plain meaning - that giving prosecutors unbounded discretion
to decide when to bring delinquency petitions based on an allegation of
statutory rape effectively gives them the power to make, rather than just
to enforce, the law. Prosecutors have always had discretion to decide
whether to prosecute persons who have violated the law. See T.A.J., 73 Cal. Rptr. 2d at 341 (question of when, who, and under what circumstances
minors should be charged under statutory rape law must reside within sound
exercise of prosecutorial discretion). Because § 3252(a)(3) "is not
susceptible of interpretation as to which conduct is covered and which is
exempt," State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993)
(rejecting argument that Vermont's statutory rape law is subject to
potentially abusive exercise of prosecutorial discretion), this appeal
does not concern a situation in which the prosecutor has discretion to
decide whether certain conduct is a criminal offense. See In re P.M., 156
Vt. at 315, 592 A.2d at 868 (Dooley, J., dissenting) ("Discretion to
prosecute persons who have committed crimes is one thing; prosecutorial
discretion to decide whether conduct is criminal in the first instance is
another.").

As with the other concerns it relies upon in reaching its holding, the
majority's concern regarding the breadth of prosecutorial discretion is
speculative in nature. There is not the slightest indication that any
abuse of that discretion occurred in this case or is occurring generally.
Nor does this case present any equal protection or due process claims that
could conceivably arise when one juvenile is subjected to delinquency
proceedings for engaging in consensual sex with another juvenile. Under
the facts of this case, which indicate that fourteen-year-old G.T.
surprised twelve-year-old M.N. by suddenly engaging in sexual intercourse
with

her even though the two had had no previous sexual contact, the prosecutor
acted properly in filing a petition of delinquency alleging statutory rape
against only G.T. and not M.N. As the trial court stated, even though the
difference between the two juveniles in this case was only two years, those
two years between twelve and fourteen often encompass significant
differences in psychological growth, cognitive skills, and sexuality.

IV.

I recognize that historically the crime of statutory rape has focused
upon preventing older persons from corrupting the morals of minors. See 3
C. Torcia, Wharton's Criminal Law § 285, at 76 (15th ed. 1995). Like
statutory rape provisions in other jurisdictions, § 3252(a)(3) reflects a
policy judgment that sexual conduct in violation of statutory age
limitations is predatory and exploitative in nature. See Barlow, 160 Vt.
at 530, 630 A.2d at 1301 ("The Legislature . . . had a compelling interest
in protecting minors when it criminalized sexual relations between adults
and minors."); Searles, 159 Vt. at 528, 621 A.2d at 1283 ("Vermont law
reflects our enhanced concern for the protection and well-being of minors
and the gravity we attach to crimes involving the exploitation of
minors."). Accordingly, we have interpreted the statutory rape law as
creating a strict-liability offense - once the State has proved the sexual
conduct, "[n]othing more than a calendar and the person's birth
certificate are required to determine the statute's applicability."
Barlow, 160 Vt. at 530, 630 A.2d at 1301.

Given the nature and history of statutory rape laws, not all
legislators or judges would agree that it is appropriate to subject youths
who engage in consensual sex to court intervention, even in the context of
delinquency proceedings. Some would say that such conduct is better left
to resolution by individual families, and that, absent a specified age
differential between the actors, it should not be the basis for a
delinquency petition in family court. See Annotation, supra, 18 A.L.R.5th
at 865 (citing jurisdictions that in recent years have adopted sex offense
statutes requiring that minor offender be specified minimum age or that
there be specified age differential between perpetrator and victim); Model
Penal Code § 213.3(1)(a), at 133, 135

(1980) (consensual sexual intercourse punished as third-degree felony where
victim is less than sixteen years old and actor is at least four years
older than victim). This view derives support from the inherent
contradiction in adjudging a juvenile a delinquent based on his having
committed a crime to which he could not have consented had he been deemed
the victim, and from the extent of the family court's power to intervene
in the lives of those adjudged to be delinquents. See 33 V.S.A. § 5529(a)
(upon finding child to be delinquent, juvenile court may place child under
protective supervision, place child on probation under such conditions as
court may prescribe, or transfer legal custody to Commissioner of Social
and Rehabilitation Services, who may place child in institution or
facility that Commissioner deems to be in best interests of child).

Our duty, however, is to give effect to the intent of the Legislature.
That intent is clear in this case. I do not share the majority's belief
that the Legislature's intent to permit intervention by the family court
when juveniles engage in "consensual" sexual acts with other juveniles
under the age of sixteen creates absurd or irrational consequences.
Indeed, Vermont "has long recognized an obligation to protect its children
from others and from themselves." Barlow, 160 Vt. at 528, 630 A.2d at
1300 (emphasis added). The salutary purposes of the statutory rape law
identified by this Court - reducing teen-age pregnancy, preventing
venereal disease and damage to reproductive organs, and protecting minors
who may be unable to give considered consent or who may have a heightened
vulnerability to physical and psychological harm - are furthered regardless
of the age of the alleged perpetrator. See id. at 528, 530, 630 A.2d at
1300-01 (recognizing that minors often lack experience, perspective, and
judgment to avoid choices that could be detrimental to themselves and
others); In re Hildebrant, 548 N.W.2d 715, 716 (Mich. Ct. App. 1996) (per
curiam) (concluding that bringing delinquency proceedings against juvenile
for engaging in consensual sex with her adopted brother was not contrary
to public policy, given that statutory rape law is based upon presumption
that children's immaturity prevents them from appreciating full magnitude
and consequences of their conduct).

Because the focus of delinquency proceedings in general, and the
statutory rape law in particular, is on protecting children, the age of
the offender is not the primary concern. See Hildebrant, 548 N.W.2d at
716. When juvenile offenders are involved, the principal interest is not
punishment, but rather providing the juveniles with the care, guidance,
counseling, or therapy that is conducive to their best interests, as well
as the best interests of the public. See P.M., 156 Vt. at 310, 592 A.2d
at 865; J.A.S., 705 So. 2d at 1386-87; Hildebrant, 548 N.W.2d at 717.

As currently written, § 3252(a)(3) plainly permits juveniles to be
adjudicated delinquent for having committed statutory rape. Without
question, there are significant public policy considerations concerning
whether to permit delinquency proceedings to proceed against minors
engaging in consensual sexual relations. But the Legislature, and not
this Court, is in the best position to weigh those policy considerations
and change that law if need be. See Medical Center Hosp. v. Lorrain, 165
Vt. 12, 16, 675 A.2d 1326, 1330 (1996). Because the majority ignores the
plain meaning and clear legislative intent of § 3252(a)(3) based only on
speculative concerns and unwarranted presumptions, I dissent from its
holding that persons under sixteen years of age cannot be found delinquent
for having committed statutory rape.

I am authorized to say that Justice Gibson joins in this dissent.

___________________________________________
Associate Justice

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