State of Idaho v. Alexander Robert Joslin Appeal from conviction for statutory rape
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32483
STATE OF IDAHO,
Plaintiff-Respondent,
v.
ALEXANDER ROBERT JOSLIN,
Defendant-Appellant.
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Boise, December 2007 Term
2007 Opinion No. 136
Filed: December 24, 2007
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Seventh Judicial District of the State of
Idaho, in and for Bingham County. The Hon. James C. Herndon, District Judge.
The judgment of the district court is affirmed.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K.
Jorgensen, Deputy Attorney General, argued.
Andrew H. Parnes, Ketchum, and Scott E. Axline, Blackfoot, for appellant.
EISMANN, Chief Justice.
This is an appeal from a conviction for statutory rape. The Defendant challenges the
district court’s denial of the jury’s request to define the term “vaginal opening,” the sufficiency
of the evidence to support the verdict, the court’s exclusion of evidence regarding the victim’s
prior alleged sexual conduct, the court’s refusal to permit the Defendant’s expert to testify about
the effects of alcohol on the memory and motivations to lie, and the court’s rejection of the
Defendant’s arguments that he was denied the equal protection of the law and subjected to cruel
and unusual punishment. We affirm the judgment of the district court.
I. FACTS AND PROCEDURAL HISTORY
During a party at a friend’s house on December 26, 2002, nineteen-year-old Alexander
Joslin (Defendant) met and ultimately had sexual intercourse with a sixteen-year-old girl. He
was charged with rape committed in one of three ways: by having vaginal intercourse with a
female under the age of eighteen, by having vaginal intercourse with a female whose resistance
he overcame with force, or by having vaginal intercourse with a female who was unable to resist
due to intoxication. The jury found the Defendant guilty of having vaginal intercourse with a
female under age eighteen (statutory rape) and not guilty of the other two counts. He appeals,
contending that the district court committed various errors during the trial and that the statutes
defining the crime and fixing the punishment are unconstitutional.
II. ISSUES ON APPEAL
1.
Did the district court err in failing to define the term “vaginal opening” in response to a
request from the jury?
2.
Was there sufficient evidence to support the jury’s verdict?
3.
Did the district court err in excluding evidence of the victim’s prior sexual conduct?
4.
Did the district court err in excluding testimony of the Defendant’s expert witness
regarding the effects of alcohol on memory?
5.
Did the district court err in excluding testimony of the Defendant’s expert witness offered
to challenge the constitutionality of Idaho Code § 18-6101(1)?
6.
Was the Defendant’s trial counsel ineffective when laying the foundation for the
testimony of the expert witness?
7.
Did the district court err in refusing to permit the Defendant’s counsel to use a
demonstrative item during his closing argument?
8.
Were there cumulative errors during the trial that require reversal of the jury’s verdict?
9.
Does Idaho Code § 18-6101(1) violate the Equal Protection Clauses of the Constitutions
of the United States and Idaho?
10.
Does Idaho Code § 18-6101(1) violate the Cruel and Unusual Punishment Clauses of the
Constitutions of the United States and Idaho?
11.
Does the requirement that the Defendant register as a sex offender constitute the
infliction of cruel and unusual punishment?
III. ANALYSIS
A.
Did the District Court Err in Failing to Define the Term “Vaginal Opening” in
Response to a Request from the Jury?
2
The Defendant was convicted of statutory rape, which Idaho Code § 18-6101(1) defines
as “the penetration, however slight, of the . . . vaginal opening with the perpetrator’s penis
accomplished with a female under any one (1) of the following circumstances: 1. Where the
female is under the age of eighteen (18) years.” The district court instructed the jury as to the
crime of rape in the wording of the statute. After deliberating for about one hour, the jury sent a
note to the judge asking the following question: “Does there have to be penetration, ever so
slightly, beyond the hymen to constitute penetration? What point of the anatomy (female
genitals) does the tip of the penis have to pass (ever so slightly) to constitute penetration? The
parts we are concerned with are the labia and the hymen.” Over objection from Defendant’s
counsel, the district court refused to give the jury further clarification as to the meaning of the
term “vaginal opening.” The court felt that doing so would constitute a comment upon the
evidence and rendering a medical opinion. The Defendant contends that the court committed
reversible error in failing to further define vaginal opening in response to the jury’s question.
“The district court’s decision whether or not to give further instructions in response to
jurors’ questions is discretionary.” State v. Sheahan, 139 Idaho 267, 282, 77 P.3d 956, 971
(2003).
In this case, the State called a physician who had performed a gynecological
examination of the victim on the day after the rape. As part of that examination, he had taken
photographs of the victim’s vaginal area with a colposcope. He testified that the photographs
showed injuries to the victim’s hymen and to areas outside the vaginal opening which were
caused by forced sexual penetration. During his testimony, he identified for the jury various
parts of the female anatomy including the vaginal opening, the hymen, and the labia. On crossexamination, the physician opined that no one would want to undergo the trauma necessary to
inflict those injuries. In response, the Defendant called a physician who testified that the
photographs did not show injury to the victim’s hymen and that the other injuries did not show
either force or the lack of consent. They could have been caused by vigorous consensual sexual
activity or the lack of lubrication. The physician called by the Defendant testified that the labia
were external to the vaginal opening, as were the injuries suffered by the victim. The defense
physician also testified that the photographs and injuries were not evidence of penetration of the
vaginal opening, nor did they rule out such penetration and they were not evidence of force, nor
did they show lack of force. There was no conflict between the physicians as to where the
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vaginal opening was, and the Defendant conceded on appeal that their testimony was accurate in
that regard.
In addition, the victim testified that the Defendant had penetrated her vagina with his
penis and that she felt it in her vagina. A Blackfoot police officer testified that he questioned the
Defendant during the early morning hours of December 27, 2002. The Defendant stated that the
victim took a fancy to him, but he told her she was only seventeen1 and that was a line he was
not going to cross. He said that later that night one thing led to another and that he had sexual
intercourse with the victim, but did not ejaculate inside her.
When the officer asked the
Defendant what he meant by sexual intercourse, the Defendant answered that he inserted his
penis into the victim’s vagina.
The police officer’s testimony was neither impeached nor
challenged, and the Defendant did not testify. The Defendant also gave a written statement in
which he stated that after the victim followed him up the stairs, “we proceeded to have
intercourse.” His semen was also found on her panties and jeans.
In summary, two physicians explained for the jury where the vaginal opening was and
where the labia and hymen were in relation to the vaginal opening. 2 The victim testified that the
Defendant penetrated her vagina with his penis, and the Defendant admitted to a police officer
that he had done so. Under these circumstances, the district court did not abuse its discretion in
refusing to instruct the jury further on the definition of vaginal opening.
B. Was There Sufficient Evidence to Support the Jury’s Verdict?
The Defendant alleges that there was insufficient evidence to support the jury’s verdict.
He argues that the evidence did not show that he had penetrated the victim’s vaginal opening
with his penis.
“This Court will not overturn a judgment of conviction, entered upon a jury verdict,
where there is substantial evidence upon which a reasonable trier of fact could have found that
the prosecution sustained its burden of proving the essential elements of a crime beyond a
reasonable doubt.” State v. Sheahan, 139 Idaho 267, 285, 77 P.3d 956, 974 (2003). The victim’s
testimony and the Defendant’s confession to the police officer provide evidence upon which a
1
She was forty-one days short of her seventeenth birthday.
During oral argument, the Defendant conceded that both physicians were correct in their explanation of where the
vaginal opening and labia were.
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reasonable trier of fact could have found that the Defendant penetrated the victim’s vaginal
opening with his penis. There was sufficient evidence to support the jury’s verdict.
C.
Did the District Court Err in Excluding Evidence of the Victim’s Prior Sexual
Conduct?
Pursuant to Rule 412 of the Idaho Rules of Evidence, the Defendant filed a pretrial
motion seeking permission to admit evidence that the victim had engaged in consensual sexual
intercourse with another male approximately one week before the rape.
The Defendant
contended that such evidence was admissible under Rule 412(b)(2)(A) upon the issue of whether
the Defendant was the source of the injuries identified by the physician who was expected to be
called, and was later called, by the State. The district court denied the request. The Defendant
argues on appeal that he was prejudiced because the jury was prevented from hearing that the
victim’s injuries may have been caused by someone other than the Defendant.
The physician called by the State testified that the victim’s injuries showed forcible
penetration and that a female would not willingly undergo that trauma. If the jury believed that
evidence, it would support the allegations that the Defendant committed rape by having vaginal
intercourse with a female whose resistance he overcame with force or by having vaginal
intercourse with a female who was unable to resist due to intoxication. However, the jury found
the Defendant not guilty of those two counts. Therefore, any error in excluding evidence of such
sexual conduct would have been harmless as to those counts.
As to the statutory rape count, the only asserted relevance of the evidence was to show
that the injuries could have been caused by someone other than the Defendant and that they are
therefore not circumstantial evidence supporting the victim’s testimony that the Defendant had
vaginal intercourse with her on December 26, 2002. Again, any error in excluding the evidence
was harmless because the Defendant confessed to having had vaginal intercourse with her that
night. 3
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The Defendant also did not offer any evidence at the hearing showing that the victim’s injuries observed during
her gynecological examination on December 27, 2002, could have been caused by engaging in vaginal intercourse a
week earlier. However, the district court did not deny the request on that basis. Later at the trial, the physician who
did that gynecological exam testified that in his opinion the injuries were fresh, occurring within the last twelve
hours. The physician called by the Defendant testified that she did not have sufficient information to date the
injuries. They could have occurred very recently, within a couple days, or up to a week earlier.
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D. Did the District Court Err in Excluding Testimony of the Defendant’s Expert Witness
Regarding the Effects of Alcohol on Memory?
The Defendant sought court approval to retain an Arizona Psychologist at county expense
who would testify regarding reasons why a complainant would make and continue making false
allegations and how alcohol intoxication impacts a person’s ability to obtain and remember
information. The State responded with a motion in limine to prohibit the introduction of such
testimony.
The district court granted the State’s motion on the ground that the proposed
testimony would not assist the trier of fact because information that memories may be faulty, that
they may be influenced by motive, and that they may be inaccurate due to the ingestion of mindaltering drugs is not beyond the realm of common knowledge in the community.
“To be admissible, the expert’s testimony must assist the trier of fact to understand the
evidence or to determine a fact in issue.” Swallow v. Emergency Medicine of Idaho, P.A., 138
Idaho 589, 592, 67 P.3d 68, 71 (2003). “An expert’s opinion is also inadmissible if it concerns
conclusions or opinions that the average juror would be qualified to draw from the facts utilizing
the juror’s common sense and normal experience.” Athay v. Stacey, 142 Idaho 360, 367, 128
P.3d 897, 904 (2005). “The admissibility of expert testimony is a matter committed to the
discretion of the trial court, and the court’s ruling will not be overturned absent an abuse of that
discretion.” Id. at 366, 128 P.3d at 903. The district court did not abuse its discretion in ruling
the proffered testimony was inadmissible.
E. Did the District Court Err in Excluding Testimony of the Defendant’s Expert Witness
Offered to Challenge the Constitutionality of Idaho Code § 18-6101(1)?
On November 10, 2004, the Defendant filed a document entitled “Constitutional
Challenge to Statutory Rape Law” in which he requested that the district court hold that Idaho
Code § 18-6101(1) is unconstitutional on its face and as applied in this case.
In Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), the United
States Supreme Court held that California’s statutory rape law did not violate the Equal
Protection Clause of the Fourteenth Amendment.
That statute defined unlawful sexual
intercourse as “an act of sexual intercourse accomplished with a female not the wife of the
perpetrator, where the female is under the age of 18 years.” A four-justice plurality of the
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Supreme Court held that the statute “reasonably reflects the fact that the consequences of sexual
intercourse and pregnancy fall more heavily on the female than on the male.” Id. at 476. Justice
Blackmun concurred in the judgment upholding the constitutionality of the statute on the ground
that the statute “is a sufficiently reasoned and constitutional effort to control the problem [of teen
pregnancy] at its inception.” Id. at 482. In State v. LaMere, 103 Idaho 839, 843, 655 P.2d 46, 50
(1982), this Court upheld an equal-protection challenge to Idaho Code § 18-6101(1), stating,
“[W]e agree that the prevention of illegitimate teenage pregnancies is one of the objectives
behind the statute and that the state has a strong interest in furthering this important
governmental objective.” The Defendant sought to challenge both holdings by showing that
there was no proof that the statutory rape law decreased teen pregnancies.
To support that challenge, the Defendant offered materials from the Arizona Psychologist
regarding whether statutory rape laws had any impact on reducing teenage pregnancies. In those
materials, the Psychologist stated that in his opinion:
1. The statistics from the Idaho Department of Health and Welfare and the
Planned Parenthood Association of Idaho, were insufficient from a scientific
perspective for the Court to conclude that the Idaho statutory rape law was
substantially related to the objective of preventing teenage pregnancy.
....
3. We did not obtain any scientific or population survey data suggesting that the
Idaho rape statute had any substantial impact in reducing rates of teenage
pregnancy.
On April 18, 2005, the district court held a hearing on the Defendant’s constitutional
challenge to the statutory rape law. The Defendant called the Psychologist to testify at the
hearing and ultimately asked the Psychologist whether he had an opinion to a reasonable degree
of medical certainty as to whether there was any relationship between Idaho’s statutory rape law
and the prevention of teenage pregnancy.
The State objected on the ground of lack of
foundation, and the district court sustained the objection. The district court then permitted the
Defendant to make an offer of proof by further questioning the Psychologist. During that offer
of proof, the Psychologist testified that there is no data he could find to assess whether there was
a statistically significant relationship between Idaho’s statutory rape law and teenage pregnancies
and that he could not find any studies that had been done to assess whether any statutory rape
laws impact teen pregnancies.
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The Defendant contends that the district court erred in failing to admit the evidence for
two reasons: after the offer of proof the State did not renew its objection and the district court
prevented the Defendant from laying the proper foundation. Neither contention has any merit.
The purpose of an offer of proof is to make a record either for appeal or to enable the
court to rule on the admissibility of proffered evidence. State v. Young, 136 Idaho 113, 29 P.3d
949 (2001); State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969). In this case, the district court had
already sustained the State’s objection to the Psychologist’s opinion testimony on foundational
grounds. The purpose of the offer of proof was apparently to persuade the court to change its
mind because the court took the matter under advisement and later issued an opinion holding the
opinion testimony inadmissible for the lack of foundation. Under these circumstances, there was
no need for the State to renew its objection. Even so, at the beginning and end of the offer of
proof the State made it clear that it was still maintaining its objection to the testimony. Before
the offer of proof began, counsel for the State said, “[M]y objections as to foundation will be
noted, taken into consideration,” to which the court responded, “That’s correct.”
At the
conclusion of the State’s cross-examination of the Psychologist during the offer of proof, counsel
for the State again said, “The State is still maintaining its foundational objection.”
The record likewise does not support Defendant’s contention that the district court
prevented the Defendant from laying the proper foundation. At the conclusion of the offer of
proof, the district court asked, “Now, anything further to present on this particular issue, Mr.
Axline?” Mr. Axline answered, “No, Your honor.”
F. Was the Defendant’s Trial Counsel Ineffective When Laying the Foundation for the
Testimony of the Expert Witness?
On May 18, 2005, the district court issued an opinion rejecting the Defendant’s challenge
to the constitutionality of Idaho’s statutory rape law. The court concluded that the Defendant
had not provided any reliable or valid evidence from which to undermine the conclusions drawn
by this Court in State v. LaMere, 103 Idaho 839, 843, 655 P.2d 46, 50 (1982). On June 8, 2005,
the Defendant filed a motion asking the district court to reconsider that opinion. In that motion,
the Defendant also gave notice that his trial counsel was ineffective for failing to lay a proper
foundation for the opinion testimony of the Psychologist.
The district court ruled that
Defendant’s counsel had not been ineffective in that regard, and the Defendant challenges that
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ruling on appeal. He argues, “Either there was proper foundation or counsel was ineffective.”
The third option is that the expert witness simply lacked sufficient facts upon which to base the
opinion, which is what the district court held. In this case, the Psychologist admitted that there
were no scientific studies evaluating whether Idaho’s or any other state’s statutory rape laws had
any impact on teenage pregnancies. He therefore could not express an opinion that they did not.
G. Did the District Court Err in Refusing to Permit the Defendant’s Counsel to Use a
Demonstrative Aid During His Closing Argument?
Upon objection from the State, the Defendant was prevented from using a demonstrative
aid during closing argument. Neither the item nor a copy of it is part of the record on appeal. It
was apparently a document that the Defendant wanted to use to explain his thesis regarding
reasonable doubt. The Defendant has not pointed to anything in the record showing that the
district court erred in preventing him from using the demonstrative aid during his closing
argument. There is also no indication that the Defendant was prevented from arguing the
concept of reasonable doubt or from arguing that the State had failed to prove its case beyond a
reasonable doubt. In fact, he did so.
H. Were There Cumulative Errors During the Trial that Require Reversal of the Jury’s
Verdict?
The Defendant also states, “In the instant matter, the cumulative errors relative to the
admission of evidence denied Alex a fair trail [sic] on the matter should be reversed [sic].” Since
the Defendant has not shown that the district court made any errors regarding the admission of
evidence, the cumulative error doctrine has no application.
I. Does Idaho Code § 18-6101(1) Violate the Equal Protection Clauses of the Constitutions
of the United States and Idaho?
1. The Constitution of the United States. The Defendant argues that Idaho Code § 186101(1) violates the Equal Protection Clause of the Fourteenth Amendment. In Michael M. v.
Superior Court of Sonoma County, 450 U.S. 464 (1981), the United States Supreme Court
upheld the constitutionality of California’s statutory rape law. The Defendant does not contend
that the California statute upheld in the Michael M. case differs materially from Idaho’s statute
9
with respect to the equal protection argument. Instead, the Defendant contends that if the
Supreme Court revisited the issue under the standard used in United States v. Virginia, 518 U.S.
515 (1996), the Court would overrule its opinion in the Michael M. case.
The United States Supreme Court has developed a three-tiered approach to review
challenges under the Equal Protection Clause of the Fourteenth Amendment. As the Court stated
in Clark v. Jeter, 486 U.S. 456, 461 (1988) (citations omitted):
In considering whether state legislation violates the Equal Protection
Clause of the Fourteenth Amendment, U.S. Const., Amdt. 14, § 1, we apply
different levels of scrutiny to different types of classifications. At a minimum, a
statutory classification must be rationally related to a legitimate governmental
purpose. Classifications based on race or national origin and classifications
affecting fundamental rights are given the most exacting scrutiny. Between these
extremes of rational basis review and strict scrutiny lies a level of intermediate
scrutiny, which generally has been applied to discriminatory classifications based
on sex or illegitimacy.
In the Michael M. case, the Supreme Court held that California’s statutory rape law did
not violate the Equal Protection Clause of the Fourteenth Amendment. In doing so, it applied the
“intermediate scrutiny” test, although it had not yet attached that name to the test.
Twelve years earlier in Craig v. Boren, 429 U.S. 190, 197 (1976), the Court stated, “To
withstand constitutional challenge, previous cases establish that classifications by gender must
serve important governmental objectives and must be substantially related to achievement of
those objectives.” The four-justice plurality in the Michael M. case quoted from Craig and then
addressed whether the gender classification in California’s statutory rape statute served an
important governmental objective and was substantially related to the achievement of that
objective. 4
Justice Blackmun concurred in the judgment, upholding the judgment of the
California Supreme Court based upon the test set out in Craig and four other cases. The
4
The Supreme Court in Craig v. Boren, 429 U.S. 190, 197 (1976), first addressed whether the gender classification
served an important governmental objective. The Court concluded it did, stating, “We are satisfied not only that the
prevention of illegitimate pregnancy is at least one of the ‘purposes’ of the statute, but also that the State has a
strong interest in preventing such pregnancy.” 450 U.S. at 470. It also concluded that the gender classification
making only males criminally liable when they engaged in sexual intercourse with minor females was substantially
related to the achievement of that objective. “The question thus boils down to whether a State may attack the
problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse
with a minor female. We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional
muster.” 450 U.S. at 472; footnote omitted.
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dissenting justices also held that Craig set forth the appropriate test to apply. 5 They simply
would have applied that test differently. Thus, the test applied in Michael M. was the one
outlined in Craig.
The Defendant contends that certain language in United States v. Virginia, 518 U.S. 515
(1996), changed the intermediate-scrutiny test set out in Craig. The Defendant relies upon the
following statement:
“To summarize the Court’s current directions for cases of official
classification based on gender: Focusing on the differential treatment or denial of opportunity
for which relief is sought, the reviewing court must determine whether the proffered justification
is ‘exceedingly persuasive.’” 518 U.S. at 532-33. According to the Defendant, the “exceedingly
persuasive” language mandates a higher level of scrutiny than that used in the Michael M. case.
The “exceedingly persuasive justification” language did not originate with United States
v. Virginia. Almost fourteen years earlier in Mississippi University for Women v. Hogan, 458
U.S. 718, 724 (1982) (citations omitted), the Court explained:
Our decisions also establish that the party seeking to uphold a statute that
classifies individuals on the basis of their gender must carry the burden of
showing an “exceedingly persuasive justification” for the classification. The
burden is met only by showing at least that the classification serves “important
governmental objectives and that the discriminatory means employed” are
“substantially related to the achievement of those objectives.”
After United States v. Virginia was decided, the Court quoted the explanation from Mississippi
University for Women in Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 70 (2001), and Heckler v.
Matthews, 465 U.S. 728, 744 (1984). When the Court’s explanation of the phrase “exceedingly
persuasive justification” is considered, its mid-level scrutiny utilized in cases analyzing gender
classifications under the Equal Protection Clause is the same test announced in Craig and the
same test applied in Michael M. The Defendant has not shown that the United States Supreme
Court’s opinion in Michael M. is no longer authoritative.
5
Justices Brennan, White, and Marshall in their dissenting opinion identified the issue as: “Whether the admittedly
gender-based classification in Cal. Penal Code Ann. § 261.5 (West. Supp. 1981) bears a sufficient relationship to the
State’s asserted goal of preventing teenage pregnancies to survive the ‘mid-level’ constitutional scrutiny mandated
by Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 40 L.Ed.2d 397 (1976).” 450 U.S. at 488. In his dissenting opinion,
Justice Stevens stated, “Nevertheless, as I have previously suggested, the ultimate standard in these, as in all other
equal protection cases, is essentially the same. See Craig v. Boren, 429 U.S. 190, 211-212, 97 S.Ct. 451, 464-465,
50 L.Ed.2d 397 (STEVENS, J., concurring).” 450 U.S. at 497.
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2. The Constitution of the State of Idaho. The Defendant also asks us to strike down
Idaho Code § 18-6101 as being in violation of Art. 1, § 2, of the Idaho Constitution. 6 In State v.
LaMere, 103 Idaho 839, 655 P.2d 46 (1982), we addressed this issue and held that the statute did
not violate the equal protection provision in the Idaho Constitution. The Defendant asks us to
reconsider the arguments made by the defendant in LaMere and overrule that opinion. We see
no need to revisit the arguments we rejected in LaMere.
The Defendant contends that since LaMere the State has increased its efforts to obtain
child support from the fathers of children born out of wedlock. He argues that as a result there
are long-lasting consequences for males who impregnate minor females. That some males may
bear increased civil consequences for impregnating a minor female does not lessen the State’s
interest in attempting to prevent such pregnancies in the first place.
The Defendant also contends that there have been societal changes since LaMere that
undermine any assumption that males are always the aggressors when minor females engage in
sexual intercourse. In his dissent in Michael M., Justice Stevens argued that if the law punished
only one of the two participants, the State should be required to prove that the participant
punished was the aggressor. None of the other justices joined in his dissent. As this Court stated
in LaMere, “Because males alone can ‘physiologically cause the result which the law properly
seeks to avoid,’ Michael M., [450 U.S. at 467,] 101 S.Ct. at 1202, a law punishing a male for
sexual intercourse with a teenager under the age of eighteen could certainly help deter this
conduct.” 103 Idaho at 843, 655 P.2d at 50.
Finally, the Defendant argues that when the rape statute was adopted by the territorial
legislature, the age of consent was ten. Since that age limit was well below the average age of
menstruation at the time, the statute could not have been intended to prevent teenage
pregnancies. In 1895 the state legislature raised the age of consent to eighteen, 1895 Idaho Sess.
Laws 19-20, which was above the average age of menstruation. Except for the three-month
period in 1971 during which a version of the Model Penal Code was in effect in Idaho, State v.
Stiffler, 117 Idaho 405, 788 P.2d 220 (1990), the legislature has maintained eighteen as the age
of consent.
6
The relevant portion of that Section provides: “All political power is inherent in the people. Government is
instituted for their equal protection and benefit . . . .”
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We decline the Defendant’s invitation to overrule State v. LaMere. We continue to hold
that Idaho Code § 18-6101 does not violate Art. 1, § 2, of the Idaho Constitution.
J. Does Idaho Code § 18-6101(1) Violate the Cruel and Unusual Punishment Clauses of the
Constitutions of the United States and Idaho?
The Defendant contends that Idaho Code § 18-6101(1) constitutes cruel and unusual
punishment under the Constitutions of the United States and Idaho because it authorizes a
sentence of up to life in prison for statutory rape. Actually, it is Idaho Code § 18-6104 which
establishes the possible sentence for rape. It provides, “Rape is punishable by imprisonment in
the state prison not less than one (1) year, and the imprisonment may be extended to life in the
discretion of the District Judge, who shall pass sentence.”
The Defendant did not receive a life sentence, and he does not challenge the sentence that
he did receive. Rather, he contends that the statute is unconstitutional because on its face it
would permit a sentence of up to life in prison for statutory rape.
The Eighth Amendment to the Constitution of the United States provides, “Excessive bail
shall not be required, or excessive fines imposed, nor cruel and unusual punishments inflicted.”
That identical wording is contained in Art. 1, § 6, of the Idaho Constitution. Both Constitutional
provisions prohibit the infliction of cruel and unusual punishments, not the mere possibility that
those punishments could be imposed. Since the Defendant was not sentenced to life in prison,
we need not address whether it would constitute cruel and unusual punishment for that sentence
to have been inflicted.
K. Does the Requirement that the Defendant Register as a Sex Offender Constitute the
Infliction of Cruel and Unusual Punishment?
In 1998, the Idaho legislature enacted the Sexual Offender Registration Notification and
Community Right-to-Know Act, I.C. §§ 18-8301 et seq. The Act requires that an “offender”
convicted of a specified offense must register with the sheriff of the offender’s county of
residence. I.C. § 18-8307. The offender must initially register within a specified time of coming
into the county to establish residence or temporary domicile and then register annually thereafter.
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Id. The offenses for which registration is required include statutory rape,7 I.C. § 18-8304(1), and
the district court ordered the Defendant in this case to register as a sex offender. The registration
requirement extends for life, unless the offender successfully petitions the court under Idaho
Code § 18-8310 to be relieved of the requirement. Such request can be made ten years after the
offender is released from incarceration or placed on parole, supervised release, or probation,
whichever is longer. Id.
The Defendant contends that the registration requirement constitutes cruel and unusual
punishment in violation of the Constitutions of the State of Idaho and the United States. The
requirement that sexual offenders register does not impose punishment. “The purpose of Idaho’s
registration statute is not punitive, but remedial.” Ray v. State, 133 Idaho 96, 100, 982 P.2d 931,
935 (1999). It “provides an essential regulatory purpose that assists law enforcement and parents
in protecting children and communities.” Id. at 101, 982 P.2d at 936. Therefore, it cannot
constitute the infliction of cruel and unusual punishment under our State Constitution. Since it is
not punishment under Idaho law, it would not constitute the infliction of punishment under the
Constitution of the United States. See, Smith v. Doe, 538 U.S. 84 (2003).
IV. CONCLUSION
We affirm the judgment of the district court.
Justices BURDICK, W. JONES and HORTON CONCUR.
J. JONES, Justice, specially concurring.
7
Exemption from the registration requirement can be granted to a defendant convicted of statutory rape under
specific circumstances. Idaho Code § 18-8304(4) provides:
(4) When a defendant is convicted of rape under section 18-6101 1., Idaho Code, and at
the time of the offense the defendant is nineteen (19) or twenty (20) years of age and not more
than three (3) years older than the victim of the rape, the court may order that the defendant is
exempt from the requirements of this chapter upon a finding by the court that:
(a) All parties have stipulated to the exemption; or
(b) The defendant has demonstrated by clear and convincing evidence that he is
not a risk to commit another crime identified in subsection (1) of this section and in the
case there were no allegations by the victim of any violation of section 18-6101 2.
through 7., Idaho Code.
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The Court has correctly analyzed the issues raised by the Defendant. Under existing law,
the Defendant committed the offense of statutory rape and was properly convicted thereof by an
apparently reluctant jury. I say the jury was apparently reluctant because, following the verdict
and prior to sentencing, nine of the jurors wrote to the sentencing judge to express sympathy for
the Defendant and to request leniency in his sentence. The text of one of those letters, signed by
seven jurors, states:
Dear Judge Herndon:
We the undersigned jury members in the Alexander Joslin case, would like to
make you aware of our concern in this particular matter.
Alex is scheduled to be sentenced August 15th @ 2:00pm in your courtroom and
we are extremely concerned about the punishment that he may receive.
It is our understanding that Alex will be labeled as a sex offender and this label
will be placed on his record and will follow him for the rest of his life. We do not
believe that Alex is a sex offender or that he should be labeled as such. He was a
teenager who was enticed into making a mistake by a young lady who should
share equally in the consequences. We feel that he should not be punished for the
rest of his life, while . . ., the girl involved goes free.
We are now aware of how the law reads, how it defines statutory rape and the
possible punishments that could be invoked. We feel that the law is antiquated
and the letter of the law should not be applied in this case.
We realize that it is your duty and responsibility to set punishment and not ours,
but we would appreciate your consideration of our opinion in this matter.
Sincerely, (signatures of seven jury members)
It seems fairly obvious that the jury found substantial evidence upon which to base the
conviction, as it appears the jury did have qualms about fulfilling its responsibility.
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