Opinion
C.A. No. 07M-10-078 PLA.
Submitted: April 7, 2008.
Decided: April 10, 2008.
UPON DEFENDANT'S REQUEST FOR REVIEW OF RISK ASSESSMENT TIER DESIGNATED TO RISK ASSESSMENT TIER I.
This 10th day of April, 2008, it appears to the Court that:
1. On or about January 13, 2003, Robert Stewart ("Stewart") pleaded guilty in the Michigan Circuit Court of Oceana County, Michigan to the crime of Criminal Sexual Conduct in the Third Degree ("Criminal Sexual Conduct 3rd"). The Court sentenced him on or about February 3, 2003.
2. At some point after his conviction in the State of Michigan, Stewart relocated to Delaware. Because he was required by Delaware law to be assigned to a tier level for purposes of community notification, the State informed Stewart that, based on his Michigan conviction, he was assigned to Tier Level II. Stewart exercised his right to a hearing to challenge this designation.
3. Now before the Court is Stewart's request for a Review of Risk Assessment Tier. Stewart argues that the State erroneously designated him as a Tier II sex offender. He bases this contention on the fact that the crime to which he pleaded guilty in Michigan is not equivalent to Rape in the Fourth Degree ("Rape 4th") under Delaware law. In response, the State contends that a Tier II designation is appropriate because the Michigan conviction satisfies the evidentiary requirements for Rape 4th under Delaware law.
4. Under Delaware law, a person must register as a sex offender and provide community notification if he has been convicted in another state for a sex crime which is the same as or equivalent to a sex offense under Delaware law that requires registration. One such offense for which a convicted defendant is designated at Tier II is the crime of Rape in the Fourth Degree. A defendant's tier level assignment is based solely on the statute, which prohibits the Court from exercising any discretion in assessing a defendant's risk. Moreover, the Court may not consider any facts or circumstances of the offense in assessing the tier level of the defendant.
Id. § 4121(d)(2)(a).
Helman v. State, 784 A.2d 1058, 1066 (Del. 2001).
Id.
5. At issue in this case is whether the crime of Criminal Sexual Conduct 3rd under Michigan law is the same as or equivalent to the crime of Rape 4th in Delaware. Michigan law defines Criminal Sexual Conduct 3rd as "engag[ing] in sexual penetration with another person . . . if . . . [t]hat other person is at least 13 years of age and under 16 years of age." "Sexual penetration" is defined under Michigan law to include sexual intercourse. The crime is a strict liability offense for which a defendant's mental state is irrelevant.
Id. § 750.520a(p).
Michigan v. Cash, 351 N.W.2d 822, 826-27 (Mich. 1984).
6. The Delaware crime of Rape 4th, however, is not a strict liability crime. A person commits the crime of Rape 4th by "[i]ntentionally engag[ing] in sexual intercourse with another person, and the victim has not yet reached that victim's sixteenth birthday[.]" A defendant acts "intentionally" when it was his "conscious object to engage in conduct of that nature or to cause that result." To be convicted of Rape 4th, there must be evidence supporting every element of the crime charged beyond a reasonable doubt, including the defendant's intent to have sexual intercourse with the victim.
11 Del. C. § 770(a)(1).
Id. § 231(a)(1).
Farmer v. State, 844 A.2d 297, 300 (Del. 2004).
7. In this case, Stewart could not be convicted of the Delaware crime of Rape 4th based on his guilty plea to the Michigan crime of Criminal Sexual Conduct 3rd because the Delaware crime of Rape 4th requires proof of the defendant's mental state, an element lacking from the Michigan criminal statute to which Stewart pleaded guilty. Although both statutes require proof that the defendant engaged in sexual intercourse with a person under the age of sixteen, the Michigan law does not require that the defendant act "intentionally." Rather, in Michigan, the crime for which Stewart was convicted is a strict liability offense. Because Stewart did not plead guilty to acting "intentionally" in Michigan, there is no evidence that Stewart had the appropriate mental state for a finding of guilt for Rape 4th under Delaware law. Thus, the State would be unable to establish every element of Rape 4th beyond a reasonable doubt, and the crimes are not equivalent.
8. This interpretation is supported by the underlying policies of Delaware's Criminal Code. When interpreting any statute, the Court's fundamental purpose is to "ascertain and give effect to the intent of the legislature." Because the legislature passes a statute as a whole rather than in parts or sections, the Court's function is to interpret and read each part harmoniously in light of every other section. Unlike the Criminal Sexual Conduct 3rd crime in Michigan, the Delaware Criminal Code permits a defendant to raise an affirmative defense to a Rape 4th charge in certain situations. Specifically, although Section 761 of Title 11 states that a child under the age of sixteen cannot give legal consent to a sexual act with a person more than four years older, Section 762 permits a defendant to raise as an affirmative defense that the victim under sixteen years of age consented to the act knowingly, provided the victim's age is within four years of defendant's age. If the victim consented knowingly, the sexual conduct is not a crime.
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985).
Id. at 1245.
11 Del. C. §§ 761(j), 762(d).
Id. § 762(d).
9. In this case, Stewart was eighteen years and fifty-one days old at the time of the conduct. His victim was fourteen years and nine and one-half months old. Stewart was therefore approximately three years and three months older than the victim. Had the conduct occurred in Delaware, the victim could have knowingly consented to the conduct because her age was within four years of Stewart's. Under those circumstances, the sexual conduct may not have been a crime. Because the Michigan crime is a strict liability offense, however, Stewart was not given the opportunity to raise any equivalent defense.
10. The Court recognizes that Stewart admitted to having sexual intercourse with a person younger than sixteen years of age. Nonetheless, in reading the Delaware Criminal Code harmoniously as a whole, the Court concludes that the Delaware Legislature intended that defendants like Stewart be permitted to raise an affirmative defense where the victim is under sixteen years of age but within four years of the age of the defendant. The Michigan Legislature, however, intended that defendants be held strictly liable for having sexual intercourse with a person under sixteen years of age. This fundamental difference between the available defenses to a defendant in these two jurisdictions further emphasizes the dissimilarity of the crimes.
The Court stresses that it is not permitting Stewart to collaterally attack his Michigan conviction on the sole basis that the Michigan statute prohibits the affirmative defense offered to defendants for similar conduct in Delaware.
11. Similarly, the Michigan Legislature views teenagers differently from the Delaware Legislature. The Michigan Legislature has determined that a person under sixteen years of age is unable to consent to sexual intercourse at any time because the Legislature presumed that he or she is too immature and innocent and unable to appreciate the consequences of his or her conduct. By contrast, the Delaware Legislature has chosen to refrain from prosecuting acts between young people close in age because the Legislature intended "to punish the adult defendant who victimized the teenager, but at the same time, excuse from criminal sanctions sexual contact between teenagers." With that policy in mind, designating Stewart as a Tier II offender, where both participants were teenagers and close in age, and where Stewart had no opportunity to prove that the encounter with the victim was consensual, would fail to give effect to the Delaware Legislature's intent to excuse teenagers from criminal sanctions for sexual conduct.
Id. at 826-27.
State v. Sapps, 820 A.2d 477, 484 (Del.Fam.Ct. 2002) (discussing the Delaware Criminal Code and its commentary).
The Court does not mean to suggest that Stewart is innocent of the crime for which he was convicted. Stewart pleaded guilty to the Michigan crime. The Court is only demonstrating that the Michigan crime is a strict liability offense for which a defendant could not raise an affirmative defense, whereas the supposed equivalent Delaware crime is not a strict liability offense for which Stewart could have raised an affirmative defense. The Court does not presume to determine Stewart's guilt or innocence had he been charged with a Delaware crime.
12. The Court is also mindful that any safety risk posed by Stewart is minimal. Since his guilty plea over five years ago, Stewart has not been charged with any other crime. He has excelled academically in both high school and college and hopes to transfer to a four-year college. Given this background, a Tier II designation would be unduly harsh and inappropriate.
13. For all of the foregoing reasons, the Court is persuaded that Stewart should not be designated as a Tier II sex offender and may instead be designated to Risk Assessment Tier I.
IT IS SO ORDERED.