# FILED
July 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE JUNE 1996 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A . NO. 01C01-9 509-CR-00317 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. WALTER C. KUR TZ, WILLIAM HENRY BARNEY, ) JUDGE ) Appellant. ) (Rape of a Chil d, Aggrav ated ) Sexual Ba ttery, an d Sente ncing)

D I S S E N T

I resp ectf ully d isa gree wi th the majority ’s holding that the counts of the indictment

alleging rape of achild are constitutionall y adequate. The indictment does not
m eet constitutional muster becau se it fails to allege the defen dant’s me ns rea , a n essential element of the cri me. The author of the lead opinion states , “Upon on ly a cursoryreading of the indictment, any person of nor mal intelli gence woul d realiz e that the onlysound implication of th e factual allegations is that the se acts were at least reckless, if not knowi ng or intent ional.” I contend that the only sound i mplicatio n of the factual allegations

is that these acts were perpetrated w ithout the v ictim’s con sent and that they say nothing about the defe ndant’s mens rea .

To begin, I remind my brethr en on the Court t h at one of the stated objectives

of o ur cri mina l cod e is to “Give fair warn ing of what conduct is pr ohibited, and guide the exerci se of official discr etion in law

enforcement, by d efining the act and the culpable mental state w hich together constitute an off ense .” T.C.A. § 39-11- 101(2) (19912

Repl.) (e m phasis added). See also T.C.A. § 39-11-301(b) (1991 Rep l.) (“A culpable mental state is required w ithin this t itle un less the d efinition of an offense plain ly dispenses with a mental elem ent.”) The act which is prohibited by the rape of a child statute is unlaw

ful sexual penet ration. T.C.A. § 39-13-522(a)(Supp. 1996 ). The culpable
me ntal state whi ch must have be en possessed by the defendant at the time h e committed the unla wful sexua l penet ration is intent, knowledge or recklessness. T.C.A. § 39-11-301(c) (1991 Repl). Thus, the factua l allegations which must be set forth in an indictment

char gin g rape o f a ch ild are that the d efe ndant c ommi tted unlawful sexual penetration with intent, knowledge or recklessness.

As noted by the majority, the term “sexual penetration ” is legislat i vely defined as inc ludi ng “an y . . . intrusi on, however slig ht, of any part of a pe rson’s body or of any object into the geni tal or anal ope nings of the victi m’s, the defendant’s, or any other pers on’s body . . . ” T. C.A. § 39-13- 501(7) (1991 R epl). Unli ke the term “s exual contact,” T.C.A. § 39-13-501(6) , the definition of se xual penetration contains no requirement

that the intru sion be intentional. Nor does i t require that the penetrat ion be forthe purpose of sex ual arousal or grati fication as doesthe definition of sex ual contact. Id. Thus, as further not ed by the major ity, the defin ition of sexua l penetration does not include any descr iption ofthe n eces sary mens rea . Indeed, one panel of this C ourt has previouslyheld, “a reference to sexual penetration, as statutorily defined, does not imply the mens rea.” State v. Milton S. Jones, Jr , No. 02C01-950 3-CR-00061, Shelby Cou nty (Tenn. Cri m. App. filed Mar . 7, 1997, at Jack son). Rather , the definition of se x ua l penetration is aimed at des cribing particular acts, and is broad en ough to include completely accidental and totally innocent intr usions: for instance, a mother bathing her infant may

find one of he r fingers accidentally intruding into the baby’s anal opening as she lift s him from the b athwa ter. Such an in trus ion, “howe ve r sligh t,” woul d meet the3

statutory def in ition of sexua l penetration. The definition als o includes i ntentional intrusionsthat are clear ly law ful. For exam ple , a nurse taking a child’s temperature rectallywoul d satisfy the statutory defini tion of sexual penetration. While there i s no question that our legislature did not inten d these acts to constitute ra pe of a child, the plain meaning of the defining statute does encompass them within the rubric of “s exual penetration.”

How, then, are w e to disting uish between innocent and cr iminal acts of sexual penetration? The child rap e statute proscribes “unlawful” se xual penetration. T.C.A. § 39-13-522(a) (Supp. 1996). Clearly , then, our leg islature i ntended this word to differentiate between chi ld molestation and, for instance, legitimate medical treatment

. The differentiation is

not based, how ever, on the defen dant ’s mental state: as seen in the examples above, sexual penetration can occur intent ionally, knowingly or recklessly and still be perfectly innocent. Thus, construi ng the term “ unlawful” t o imply the requisit e state of mind held by the defe ndant does nothing to disting uish innocent fro m criminal acti vity.

I sugge st th e ter m “un lawf ul” sh ould be co nstr ued to me an “wi tho ut consent.” Cf. State v. Jones , 889 S.W.2d 225, 227 (Tenn. Crim. App. 1994) (“the term

< unlawful’ may generally re ferto non-consensua l acts”). That is, the c rim e of rape o f a child is committed w hen the de fen dan t, ac ting i nten tion ally, knowin gly or re ckle ssly, sexually penetrates thechild w ithout consent. This meaning w ould differentiate between innocentand unlawful ac tivity . Because chil dren under th e age o f thirteen should be conclusivelypresumed incapable of givingconsent to any sexual ac

tivity , the actions of1 Another avenue for addressi ng the con sent i ssue wit h respect to chi ldr en under t he age of thirteen is to m ak e the defe nse of co nse nt un ava ilable wh ere th e off ens e invo lves s uch m inors

. See, e.g. , Stat e v. Jones , 889 S. W .2d 225, 227 (Tenn. Crim. App. 1994) ( “consent is ne ver a def ense to a sex offens e when the victi m is less than thirt een years of age .”)

2 I woul d furt her adopt , i f necessary , a concl usiv e presumpti on thatparent s cannot con sent on behalfof t heir

chil dren t o, f or i nstance, sexual int ercourse.
3 “Stat utor y r ape is sexual p enetr ati on of a v ict im by t he defendantor of the def endant by the vict im when the v ict im is atleast thi rtee n (13) but l ess than ei ghteen ( 18) y ears of a ge and th e defendant is at leas t four ( 4) yea rs old er tha n the victim .” T.C .A. § 3 9-13 -506 (a) (S upp . 199 6).

4 Victims of statutory rape m ust be at least thirt een. T.C.A. § 39 -13-506(a)(Su pp. 1996). 4 a defendant en gaging in sexual intercourse with a child would clearly be unlawful. 1 In the temperature-takin g scenario, however, the ac tivity would not b e unlawful bec ause the child’s pare nt wou ld ha ve consented tothe innocent penetr ation on behalf of the chi ld. 2 This interpre tation of the word “ unlawful” i s bolstered by an examinati on of the crime of statutory rape: the word “u nlaw ful” is not use d. 3 I suggest that it is not used because statutory rape is commit ted with t he child’s consent. 4 Thus, the issueof consent-- but not the defendan t’s mens rea -- is removed from the element s of the crime by deletion of the term “unlaw

ful.”

Thus, the term “unlawful” is insufficient to imply t he defendant’s mens rea . Rather, it descri bes the vic tim’s state of min d: unwill ing or in capable of consentin g. And,
as set forth above, th e term “sex ual penetration” is also i nsufficient to imply the defendant ’s mens rea . According ly, the ch arge of “unlaw ful sex u al penetration” is sufficientonly to al lege a noncons ensual intrus ion b y the def endant into the victim’s genital or anal op enings (or vi ce versa) . It is not s ufficient to allege that the intrusi on was made intentionally, knowingly, or recklessly. Therefore, the only sound implication of the factual allegatio ns in the indi ctment sub judice is that these acts were performed wi thout the victim’ s consent. A cursory -- or even a thorough - - reading of the indictment i mplies nothing about the defe ndant’s state of mind at the time he committed the acts. Because the defendant’s mens rea is a n ess enti al e leme nt of the o ffens e of rape o f a child, it must5

be alleged in the indictment. It has n ot been allege d in the indic tment sub judice

. Acco rdin gly, I would hol d the indictment in the instant case constitut ionally inadequate insofar as it attempts to charg e the defendant wi th rape of a chil d.

In all other respects, I concur wi th the majority ’s opinion.

____________________________________ JOHN H. PEA Y, Judge