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CHARALAMBOS EFSTATHIADIS v.

ERIC H. HOLDER, JR.

(SC 19348)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued April 28—officially released July 14, 2015

Robert C. Ross, for the appellant (plaintiff).

Bruce R. Lockwood, senior assistant state’s attorney,

with whom were Robert N. Markle, senior litigation

counsel, and on the brief, Eric H. Holder, Jr., former

attorney general of the United States, for the appellee (defendant).
Opinion

EVELEIGH, J. The dispositive issue in this case,

which comes to us upon our acceptance of certified

questions from the United States Court of Appeals for

the Second Circuit pursuant to General Statutes § 51-

199b (d), is whether a violation of General Statutes

§ 53a-73a (a) (2)1

is a strict liability offense with respect

to the lack of consent element. We answer that question

in the negative and, further, conclude that criminal negligence is the mens rea applicable to the element of

consent in § 53a-73a (a) (2).

The defendant in the present case, Eric H. Holder,

Jr., is the former Attorney General of the United States.2

The plaintiff, Charalambos Efstathiadis, is a citizen of

Greece. The plaintiff entered the United States in 1967

and became a lawful permanent resident. Efstathiadis

v. Holder, 752 F.3d 591, 593 (2d Cir. 2014). In 2005, the

plaintiff pleaded guilty to four counts of sexual assault

in the fourth degree in violation of § 53a-73a (a) (2). Id.

In 2009, the United States Department of Homeland

Security commenced removal proceedings against the

plaintiff, on the ground that he was deportable under

title 8 of the United States Code, § 1227 (a) (2) (A) (ii),

which provides in relevant part: ‘‘Any alien who at any

time after admission is convicted of two or more crimes

involving moral turpitude, not arising out of a single

scheme of criminal misconduct . . . is deportable.’’

See Efstathiadis v. Holder, supra, 593.

Thereafter, the immigration judge determined that

§ 53a-73a (a)(2)is not a crime involving moral turpitude

because ‘‘ ‘the Connecticut statute does not appear to

require that the actor know that his actions were not

consented to by the victim.’ ’’ Id. The Board of Immigration Appeals (board) subsequently ‘‘reversed . . . on

two [alternative] grounds. First, the [board] found that

. . . § 53a-73a (a) (2) was a [crime of moral turpitude]

because ‘the requirement of acting for the purpose of

sexual gratification of the actor or an intention to

degrade or humiliate the victim [set forth in § 53a-65

(3)] presents a realistic probability that the perpetrator

had an evil intent.’ . . . Second, the . . . [board went]

beyond the modified categorical approach and consider[ed] the underlying facts of [the plaintiff’s] conviction.’’ (Citations omitted; emphasis omitted.) Id., 594.

Thereafter, the plaintiff filed a petition for review of

the board’s decision with the United States Court of

Appeals for the Second Circuit. Id., 593. The Second

Circuit concluded that ‘‘[w]hether a prior conviction

constitutes a [crime of moral turpitude] turns on

whether the crime is ‘inherently base, vile, or depraved.’

Mendez v. Mukasey, 547 F.3d 345, 347 (2d Cir. 2008).

Because ‘[i]t is in the intent that moral turpitude

inheres,’ the focus of the analysis is generally ‘on the

mental state reflected’ in the statute. [Gill v. Immigra-
tion & Naturalization Services, 420 F.3d 82, 89 (2d Cir.

2005)]; see [Mendez v. Mukasey, supra, 347] (‘Whether

a crime is one involving moral turpitude depends on

the offender’s evil intent or corruption of the mind.’

. . .).’’ Efstathiadis v. Holder, supra, 752 F.3d 595.

The Second Circuit further reasoned that, although

§ 53a-73a (a) (2) unambiguously provides for a mens

rea component with respect to the sexual contact element, it is unclear what level of mens rea, if any, applies

to the lack of consent element. Id., 595–96. Because the

Second Circuit concluded that resolving the issue of

what mens rea is required for the lack of consent element of § 53a-73a (a) (2) was necessary to determine

whether the plaintiff had been convicted of a crime of

moral turpitude, pursuant to § 51-199b (d), it certified

the following questions to this court: (1) ‘‘Is . . . § 53a73a (a) (2) a strict liability offense with respect to the

lack of consent element?’’; and (2) ‘‘If . . . § 53a-73a

(a) (2) is not a strict liability offense with respect to

the lack of consent element, what level of mens rea

vis-a ́-vis that element is required to support a conviction?’’ Id., 599.3

Resolution of these questions involves an issue of

statutory interpretation over which we exercise plenary

review. See, e.g., State v. Crespo, 317 Conn. 1, A.3d

(2015). ‘‘The process of statutory interpretation

involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.

. . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider

the text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative

policy it was designed to implement, and to its relationship to existing legislation and common law principles

governing the same general subject matter . . . . The

test to determine ambiguity is whetherthe statute, when

read in context, is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) Id., 9. Whether the lack of consent element of

§ 53a-73a (a) (2) requires a mens rea, and what level

of mens rea is a matter of statutory interpretation. State

v. Hill, 256 Conn. 412, 419, 773 A.2d 931 (2001).

I

We first address whether § 53a-73a (a) (2) is a strict

liability offense with respect to the lack of consent

element. The plaintiff asserts that § 53a-73a (a) (2) is

a strict liability offense because the plain language of
the statute does not contain a mens rea requirement

regarding the lack of consent element. In response, the

defendant claims that § 53a-73a (a) (2) is not a strict

liability offense and that this court’s analysis in State

v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), is applicable to the present case. We agree with the defendant,

and conclude that § 53a-73a (a) (2) is not a strict liability offense.

We begin with the language of the statute. Section

53a-73a (a) provides in relevant part: ‘‘A person is guilty

of sexual assault in the fourth degree when . . . (2)

such person subjects another person to sexual contact

without such other person’s consent . . . .’’

As the Second Circuit recognized, ‘‘§ 53a-73a (a) (2),

in turn, is informed by the statutory definition of sexual

contact . . . .’’ Efstathiadis v. Holder, supra, 752 F.3d

595. The term ‘‘ ‘[s]exual contact’ ’’ is defined in General

Statutes § 53a-65 (3) as ‘‘any contact with the intimate

parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any

contact of the intimate parts of the actor with a person

not married to the actorforthe purpose of sexual gratification of the actor or for the purpose of degrading or

humiliating such person.’’4

The Second Circuit further explained, ‘‘§ 53a-73a (a)

(2) outlines three elements-sexual contact, for a prohibited purpose, and without consent. Connecticut courts

have not added a complicating judicial gloss but have

applied the statute as written. See, e.g., State v. McGee,

[124 Conn. App. 261, 272, 4 A.3d 837 (2010)] (reciting

the statutory definitions given above); State v. Montoya,

[110 Conn. App. 97, 103, 954 A.2d 193 (2008)] (same).

The Connecticut Criminal Jury Instructions also identify three elements—sexual contact, ‘specific intent’

either to obtain sexual gratification or to degrade or

humiliate the complainant, and ‘the complainant did not

consent to the sexual contact.’ ’’ (Footnote omitted.)

Efstathiadis v. Holder, supra, 752 F.3d 595–96; see also

Connecticut Criminal Jury Instructions (4th Ed. 2008)

§ 7.1-12, available at http://www.jud.ct.gov/ji/Criminal/

part7/7.1-12.htm (last visited June 23, 2015).

The legislature has not, however, defined the meaning

of the term ‘‘without such other person’s consent

. . . .’’ General Statutes § 53a-73a (a) (2). ‘‘In the

absence of a definition of terms in the statute itself,

[w]e may presume . . . that the legislature intended

[a word] to have its ordinary meaning in the English

language, as gleaned from the context of its use. . . .

Under such circumstances, it is appropriate to look to

the common understanding of the term as expressed

in a dictionary.’’ (Citation omitted; internal quotation

marks omitted.) State v. LaFleur, 307 Conn. 115, 128,

51 A.3d 1048 (2012).
The term ‘‘consent’’ is defined with substantial similarity in numerous sources. Webster’s Third New International Dictionary (2002) defines consent as a

‘‘capable, deliberate and voluntary agreement to or concurrence in some act or purpose implying physical and

mental power and free action . . . .’’ The American

Heritage Dictionary of the English Language (3d Ed.

1992) similarly defines ‘‘consent’’ as the voluntary

‘‘[a]cceptance or approval of what is planned or done

by another . . . .’’ See also D. Borden & L. Orland, 5A

Connecticut Practice Series: Criminal Jury Instructions

(4th Ed. 2007) § 10.5, p. 243 (‘‘[c]onsent may be

expressed, or it may be implied or inferred from the

circumstances’’). Although these definitions are helpful

in understanding the term consent, nothing in these

definitions explains what mens rea, if any, applies to

the ‘‘without such other person’s consent’’ element of

§ 53a-73a (a) (2).

‘‘While the general rule at common law was that the

scienter was a necessary element in the indictment and

proof of every crime, and this was followed in regard

to statutory crimes, even where the statutory definition

did not in terms include it . . . there has been a modification of this view in respect to prosecutions under

statutes the purpose of which would be obstructed by

such a requirement. . . . [T]he common-law concept

that criminal acts require the coupling of the evil-meaning mind with the evil-doing hand and may define crimes

which depend on no mental element, but consist only

of forbidden acts or omissions. . . . Whether or not a

statutory crime requires mens rea or scienter as an

element of the offense is largely a question of legislative

intent to be determined from the general scope of the

act and from the nature of the evils to be avoided.’’

(Internal quotation marks omitted.) State v. T.R.D., 286

Conn. 191, 217–18, 942 A.2d 1000 (2008).

This court has repeatedly recognized that ‘‘[w]hen

the commission of an offense defined in [the Penal

Code], or some element of an offense,requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the

terms intentionally, knowingly, recklessly or criminal

negligence, or by use of terms such as with intent to

defraud and knowing it to be false, describing a specific

kind of intent or knowledge. . . . Generally, the

absence of any such requirement demonstrates that the

legislature did not intend to make it an element of

the crime.’’ (Citation omitted; internal quotation marks

omitted.) Id., 218.

This court has also repeatedly recognized, however,

‘‘that we are not precluded from finding a requirement

for mental culpability when a statute contains [no

explicit mens rea]. See Commission to Revise the Criminal Statutes, Penal Code Comments, [Conn. Gen. Stat.

Ann. (West 2001) § 53a-5, comment] (omission of lan-
guage of mental culpability in penal statute is not conclusive). Rather, as we already have indicated, whether

a particular mental state is required for a specific element of an offense in the absence of an explicit provision depends on the general scope of the [statute] and

the nature of the evils to be avoided.’’ (Internal quotation marks omitted.) State v. Higgins, 265 Conn. 35,

46–47, 826 A.2d 1126 (2003).

In the present case, the language of § 53a-73a (a) (2)

does not expressly contain any mens rea, therefore, we

must look to ‘‘the general scope of the [statute] and the

nature of the evils to be avoided.’’ (Internal quotation

marks omitted.) Id., 46–47. In doing so, we do not write

on a clean slate, but are guided by our interpretation

of a related statute, General Statutes § 53a-70, sexual

assault in the first degree.

In State v. Smith, supra, 210 Conn. 132, this court

addressed whether the crime of sexual assault in the

first degree contains a mens rea. In considering this

issue, this court explained that ‘‘[o]urfirst degree sexual

assault statute, § 53a-70, applies to a person who ‘compels another person to engage in sexual intercourse by

the use of force . . . or by the threat of use of force

which . . . reasonably causes such person to fear

physical injury . . . .’ ’’ Id., 139–40.

This court recognized that traditionally § 53a-70 had

been interpreted as a general intent crime. Id., 136. In

reaching that conclusion, this court ‘‘adhere[d] to the

view expressed in [its] earlier decisions that no specific

intent, but only a general intent to perform the physical

acts constituting the crime, is necessary for the crime

of first degree sexual assault.’’ Id., 141.

Nevertheless, this court then recognized that ‘‘[a]

finding that a complainant had consented would implicitly negate a claim that the actor had compelled the

complainant by force orthreat to engage in sexual intercourse. Consent is not made an affirmative defense

under our sex offense statutes, so, as in the case of the

defense of alibi, the burden is upon the state to prove

lack of consent beyond a reasonable doubt whenever

the issue is raised.’’ Id., 140.

This court further explained that ‘‘[w]hile the word

‘consent’ is commonly regarded as referring to the state

of mind of the complainant in a sexual assault case,

it cannot be viewed as a wholly subjective concept.

Although the actual state of mind of the actor in a

criminal case may in many instances be the issue upon

which culpability depends, a defendant is not chargeable with knowledge of the internal workings of the

minds of others except to the extent that he should

reasonably have gained such knowledge from his observations of their conduct.’’ Id. This court further

explained that ‘‘[t]he law of contract has come to recognize that a true ‘meeting of the minds’ is no longer
essential to the formation of a contract and that rights

and obligations may arise from acts of the parties, usually their words, upon which a reasonable person would

rely. . . . Similarly, whether a complainant has consented to intercourse depends upon her manifestations

of such consent as reasonably construed.’’ (Citation

omitted.) Id.

Our review of Smith demonstrates that, although this

court reaffirmed its previous holdings that sexual

assault in the first degree is a general intent crime, it

rejected the idea that it is a strict liability crime. ‘‘General intent’’ is the ‘‘intention to make the bodily movement which constitutes the act which the crime requires

. . . .’’ (Internal quotation marks omitted.) State v.

James, 211 Conn. 555, 586, 560 A.2d 426 (1989); see

also 1 W. LaFave, Substantive Criminal Law (2d Ed.

2003) § 5.2 (f), p. 355. In Smith, this court explained

that, although no specific intent to have sexual intercourse without consent is required, ‘‘[i]f the conduct

of the complainant under all the circumstances should

reasonably be viewed as indicating consent to the act

of intercourse, a defendant should not be found guilty

because of some undisclosed mental reservation on the

part of the complainant. Reasonable conduct ought not

to be deemed criminal.’’ State v. Smith, supra, 210 Conn.

140–41. Thereby, the court implicitly rejected the notion

that § 53a-70 is a strict liability offense.

In the twenty-five years since Smith, the legislature

has not acted to amend § 53a-70 in response to this

court’s interpretation. ‘‘Although we are aware that legislative inaction is not necessarily legislative affirmation

. . . we also presume that the legislature is aware of

[this court’s] interpretation of a statute, and that its

subsequent nonaction may be understood as a validation of that interpretation.’’ (Internal quotation marks

omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68

A.3d 1150 (2013). By choosing not to legislatively overrule Smith, the legislature has acquiesced to this court’s

interpretation that sexual assault in the first degree is

not a strict liability offense.Indeed, one of the indicators

of legislative acquiescence to our interpretation of a

statute is the passage of ‘‘an appropriate interval [of

time] to permit legislative reconsideration . . . without corrective legislative action . . . .’’ Hummel v.

Marten Transport, Ltd., 282 Conn. 477, 494–95, 923

A.2d 657 (2007).

In interpreting § 53a-73a (a) (2), we are mindful of

the well established principle that, when ‘‘more than

one [statutory provision] is involved, we presume that

the legislature intended [those provisions] to be read

together to create a harmonious body of law . . . and

we construe the [provisions], if possible, to avoid conflict between them.’’ (Internal quotation marks omitted.) In re Jusstice W., 308 Conn. 652, 671, 65 A.3d 487

(2012). Applying this principle to the present case, we
are persuaded by this court’s analysis in State v. Smith,

supra, 210 Conn. 139–41, concluding that sexual assault

in the first degree is not a strict liability offense, and we

see no reason why sexual assault in the fourth degree

should be treated any differently. Both sexual assault

in the first degree and sexual assaultin the fourth degree

were designed to protect society from sexual contact

without voluntary agreement between ‘‘consenting,

competent adults . . . .’’ Commission to Revise the

Criminal Statutes, Commentary on Title 53a, The Penal

Code (1969), p. 38.

Moreover,requiring a mens rea forthe lack of consent

element in § 53a-73a is consistent with the purpose of

the drafters of the Penal Code. In the commentary to

the Penal Code, the drafters noted that: ‘‘These sections

are concerned principally with prohibiting [nonconsensual] sexual activity between parties not married to

each other, and, even where there may be actual consent, situations in which one party may be under the

control of the other because of limitations, or other

factors. At the same time they attempt to draw rational

distinctions between degrees of blameworthiness based

on varying age disparities and degrees and kinds of

lack [of] consent, and also attempt to define special

affirmative defenses to cover cases in which blameworthiness may be reduced or eliminated.’’ Id., pp. 38–39.

As this commentary explains, the commission sought

to make distinctions regarding degrees and kinds of

lack of consent and to reduce blameworthiness where

appropriate. Imposing strict liability for a violation of

§ 53a-73a (a) (2) frustrates that purpose.

Accordingly, on the basis of the language set forth

in § 53a-73a (a)(2),this court’s holding in State v. Smith,

supra, 210 Conn. 138, and the stated purpose of the

drafters of the Penal Code, we conclude that § 53a-73a

(a) (2) is not a strict liability offense.

II

We next turn to what level of mens rea is required

by § 53a-73a (a) (2). The plaintiff asserts that if § 53a73a (a) (2) is not a strict liability offense, the level of

mens rea required for the lack of consent element is

criminal negligence. In response, the defendant asserts

that § 53a-73a (a) (2) is not a strict liability offense and

that criminal negligence is the required mens rea for

the lack of consent element. In support of its claim,

the defendant asserts that this court concluded that

criminal negligence was the appropriate level of mens

rea under § 53a-70 in State v. Smith, supra, 210 Conn.

139–41, and that we should apply that same level of

mens rea to § 53a-73a (a) (2) because they are related

statutes designed to address the same type of conduct.

We agree with the defendant, and conclude that criminal negligence is the required mens rea for the lack of

consent element.
As we explained in part I of this opinion, in State v.

Smith, supra, 210 Conn. 143, this court addressed § 53a70, sexual assault in the first degree. Although this

court’s opinion in Smith is not the model of clarity, it

does explain that ‘‘[w]hile the word ‘consent’ is commonly regarded as referring to the state of mind of

the complainant in a sexual assault case, it cannot be

viewed as a wholly subjective concept. . . . If the conduct of the complainant under all the circumstances

should reasonably be viewed as indicating consent to

the act of intercourse, a defendant should not be found

guilty because of some undisclosed mental reservation

on the part of the complainant. Reasonable conduct

ought not to be deemed criminal.’’ (Citation omitted.)

Id., 140–41. Indeed, the court further reasoned as follows: ‘‘It is likely that juries in considering the defense

of consent in sexual assault cases, though visualizing

the issue in terms of actual consent by the complainant,

have reached their verdicts on the basis of inferences

that a reasonable person would draw from the conduct

of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would

ever convict a defendant who had in their view acted

in reasonable reliance upon words or conduct of the

complainant indicating consent, even though there had

been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however,

he would be entitled, once the issue is raised, to request

a jury instruction that the state must prove beyond a

reasonable doubt that the conduct of the complainant

would not have justified a reasonable belief that she

had consented.’’ Id., 141.

As we explained previously herein, in State v. Smith,

supra, 210 Conn. 141, this court affirmed its previous

holdings that § 53a-70 was a general intent crime. This

court explained that ‘‘we adhere to the view expressed

in our earlier decisions that no specific intent, but only

a general intent to perform the physical acts constituting the crime, is necessary for the crime of first degree

sexual assault.’’ Id. Thereby, this court implicitly

rejected the notion that the state must prove either ‘‘an

actual awareness on the part of the defendant that the

complainant had not consented or a reckless disregard

of her nonconsenting status.’’ Id. In doing so, this court

also rejected intentionally, knowingly, and recklessly

as the required mens rea. See General Statutes § 53a-3

(11) through (13).

Instead, this court explained that ‘‘a defendant is entitled to a jury instruction that a defendant may not be

convicted of this crime if the words or conduct of the

complainant under all the circumstances would justify

a reasonable belief that she had consented. We arrive

at that result, however, not on the basis of our Penal

Code provision relating to a mistake of fact, [General

Statutes] § 53a-6 (a), which is applicable only to specific
intent crimes, but on the ground that whether a complainant should be found to have consented depends

upon how her behavior would have been viewed by a

reasonable person under the surrounding circumstances.’’ State v. Smith, supra, 210 Conn. 141–42.

Although this court did not clearly identify that it was

applying the ‘‘criminal negligence’’ standard to § 53a70, a review of that standard demonstrates that it is

consistent with the holding of State v. Smith, supra,

210 Conn. 138. Section 53a-3 (14) defines criminal negligence as follows: ‘‘A person acts with ‘criminal negligence’ with respect to a result or to a circumstance

described by a statute defining an offense when he fails

to perceive a substantial and unjustifiable risk that such

result will occur or that such circumstance exists. The

risk must be of such nature and degree that the failure

to perceive it constitutes a gross deviation from the

standard of care that a reasonable person would

observe in the situation . . . .’’

In State v. Smith, supra, 210 Conn. 138, this court

repeatedly referred to reasonableness in addressing

how a criminal defendant’s actions should be considered. Indeed, this court explained that ‘‘the crux of the

inquiry on the issue of consent was not the subjective

state of mind of the complainant but rather her manifestations of lack of consent by words or conduct as reasonably construed.’’ Id., 143. Accordingly, we conclude

that this court applied the criminal negligence standard

to § 53a-70 in Smith.

As we explained in part I of this opinion, §§ 53a-70

and 53a-73a (a) (2) are related statutes designed to

protect society from similar harms, namely unwanted

sexual contact. We must, therefore, construe these statutes so as to create a harmonious body of law. See In

re Jusstice W., supra, 308 Conn. 671 (‘‘[w]hen more

than one [statutory provision] is involved, we presume

that the legislature intended [those provisions] to be

read together to create a harmonious body of law . . .

and we construe the [provisions], if possible, to avoid

conflict between them’’ [internal quotation marks omitted]). Therefore, we conclude that it is appropriate to

apply the same mens rea, criminal negligence, to both

§§ 53a-70 and 53a-73a (a) (2).

The first certified question asks: ‘‘Is . . . § 53a-73a

(a) (2) a strict liability offense with respect to the lack

of consent element?’’ Efstathiadis v. Holder, supra, 752

F.3d 599. For the reasons stated in part I of this opinion,

we answer this question in the negative. The second

certified question asks: ‘‘If . . . § 53a-73a (a) (2) is not

a strict liability offense with respect to the lack of consent element, what level of mens rea vis-a ́-vis that element is required to support a conviction?’’ Id. For the

reasons stated in part II of this opinion, we conclude

that the mens rea applicable to the element of consent

in § 53a-73a (a) (2) is criminal negligence.
In this opinion the other justices concurred.

1 We note that § 53a-73a has been the subject of recent amendments by

the legislature. See, e.g., Public Acts 2013, No. 13-47, § 2. Those amendments

do not, however, alter our analysis of the questions presented in the present

case. In the interest of simplicity, we refer to the current revision of the

statute.

2 We note that Loretta E. Lynch recently succeeded Holder as the Attorney

General of the United States.

3 Thereafter, the state filed a motion requesting permission to file a brief

in excess of ten pages and participate in oral argument. In its motion, the

state argued that it has a substantial interest in the interpretation of § 53a73a. In granting the state’s motion, this court ordered the state and the

defendant to file a joint brief, not to exceed thirty-five pages, and that oral

argument, not exceeding thirty minutes, would be permitted for either the

state or the defendant.

4 We note that § 53a-65 has also recently been amended by the legislature.

See Public Acts 2013, No. 13-47, § 3. Those amendments, however, have no

bearing on the merits of this appeal. In the interest of simplicity, we refer

to the current revision of the statute.