              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                  FILED
                                  JUNE 1996 SESSION
                                                                      July 23, 1997

                                                                  Cecil W. Crowson
                                                                 Appellate Court Clerk
STATE OF TENNESSEE,                        )
                                           )      C.C.A. NO. 01C01-9509-CR-00317
              Appellee,                    )
                                           )      DAVIDSON COUNTY
VS.                                        )
                                           )      HON. WALTER C. KURTZ,
WILLIAM HENRY BARNEY,                      )      JUDGE
                                           )
              Appellant.                   )      (Rape of a Child, Aggravated
                                           )       Sexual Battery, and Sentencing)



                                      DISSENT



              I respectfully disagree with the majority’s holding that the counts of the

indictment alleging rape of a child are constitutionally adequate. The indictment does not

meet constitutional muster because it fails to allege the defendant’s mens rea, an

essential element of the crime. The author of the lead opinion states, “Upon only a

cursory reading of the indictment, any person of normal intelligence would realize that the

only sound implication of the factual allegations is that these acts were at least reckless,

if not knowing or intentional.” I contend that the only sound implication of the factual

allegations is that these acts were perpetrated without the victim’s consent and that they

say nothing about the defendant’s mens rea.



              To begin, I remind my brethren on the Court that one of the stated

objectives of our criminal code is to “Give fair warning of what conduct is prohibited, and

guide the exercise of official discretion in law enforcement, by defining the act and the

culpable mental state which together constitute an offense.” T.C.A. § 39-11-101(2) (1991
Repl.) (emphasis added). See also T.C.A. § 39-11-301(b) (1991 Repl.) (“A culpable

mental state is required within this title unless the definition of an offense plainly

dispenses with a mental element.”) The act which is prohibited by the rape of a child

statute is unlawful sexual penetration. T.C.A. § 39-13-522(a)(Supp. 1996). The culpable

mental state which must have been possessed by the defendant at the time he

committed the unlawful sexual penetration is intent, knowledge or recklessness. T.C.A.

§ 39-11-301(c) (1991 Repl). Thus, the factual allegations which must be set forth in an

indictment charging rape of a child are that the defendant committed unlawful sexual

penetration with intent, knowledge or recklessness.



              As noted by the majority, the term “sexual penetration” is legislatively

defined as including “any . . . intrusion, however slight, of any part of a person’s body or

of any object into the genital or anal openings of the victim’s, the defendant’s, or any

other person’s body . . . ” T.C.A. § 39-13-501(7) (1991 Repl). Unlike the term “sexual

contact,” T.C.A. § 39-13-501(6), the definition of sexual penetration contains no

requirement that the intrusion be intentional. Nor does it require that the penetration be

for the purpose of sexual arousal or gratification as does the definition of sexual contact.

Id. Thus, as further noted by the majority, the definition of sexual penetration does not

include any description of the necessary mens rea. Indeed, one panel of this Court has

previously held, “a reference to sexual penetration, as statutorily defined, does not imply

the mens rea.” State v. Milton S. Jones, Jr, No. 02C01-9503-CR-00061, Shelby County

(Tenn. Crim. App. filed Mar. 7, 1997, at Jackson). Rather, the definition of sexual

penetration is aimed at describing particular acts, and is broad enough to include

completely accidental and totally innocent intrusions: for instance, a mother bathing her

infant may find one of her fingers accidentally intruding into the baby’s anal opening as

she lifts him from the bathwater. Such an intrusion, “however slight,” would meet the



                                             2
statutory definition of sexual penetration.      The definition also includes intentional

intrusions that are clearly lawful. For example, a nurse taking a child’s temperature

rectally would satisfy the statutory definition of sexual penetration. While there is no

question that our legislature did not intend these acts to constitute rape of a child, the

plain meaning of the defining statute does encompass them within the rubric of “sexual

penetration.”



                How, then, are we to distinguish between innocent and criminal acts of

sexual penetration? The child rape statute proscribes “unlawful” sexual penetration.

T.C.A. § 39-13-522(a) (Supp. 1996). Clearly, then, our legislature intended this word to

differentiate between child molestation and, for instance, legitimate medical treatment.

The differentiation is not based, however, on the defendant’s mental state: as seen in

the examples above, sexual penetration can occur intentionally, knowingly or recklessly

and still be perfectly innocent. Thus, construing the term “unlawful” to imply the requisite

state of mind held by the defendant does nothing to distinguish innocent from criminal

activity.



                I suggest the term “unlawful” should be construed to mean “without

consent.” Cf. State v. Jones, 889 S.W.2d 225, 227 (Tenn. Crim. App. 1994) (“the term

<unlawful’ may generally refer to non-consensual acts”). That is, the crime of rape of a

child is committed when the defendant, acting intentionally, knowingly or recklessly,

sexually penetrates the child without consent. This meaning would differentiate between

innocent and unlawful activity. Because children under the age of thirteen should be

conclusively presumed incapable of giving consent to any sexual activity, the actions of




                                             3
a defendant engaging in sexual intercourse with a child would clearly be unlawful.1 In the

temperature-taking scenario, however, the activity would not be unlawful because the

child’s parent would have consented to the innocent penetration on behalf of the child.2

This interpretation of the word “unlawful” is bolstered by an examination of the crime of

statutory rape: the word “unlawful” is not used.3 I suggest that it is not used because

statutory rape is committed with the child’s consent.4 Thus, the issue of consent -- but

not the defendant’s mens rea -- is removed from the elements of the crime by deletion

of the term “unlawful.”



                   Thus, the term “unlawful” is insufficient to imply the defendant’s mens rea.

Rather, it describes the victim’s state of mind: unwilling or incapable of consenting. And,

as set forth above, the term “sexual penetration” is also insufficient to imply the

defendant’s mens rea. Accordingly, the charge of “unlawful sexual penetration” is

sufficient only to allege a nonconsensual intrusion by the defendant into the victim’s

genital or anal openings (or vice versa). It is not sufficient to allege that the intrusion was

made intentionally, knowingly, or recklessly. Therefore, the only sound implication of the

factual allegations in the indictment sub judice is that these acts were performed without

the victim’s consent. A cursory -- or even a thorough -- reading of the indictment implies

nothing about the defendant’s state of mind at the time he committed the acts. Because

the defendant’s mens rea is an essential element of the offense of rape of a child, it must



        1
          Another avenue for addressing the consent issue with respect to children under the age of
thirteen is to m ake the defe nse of co nse nt unavailable wh ere th e offens e involves s uch m inors. See,
e.g., State v. Jones, 889 S.W .2d 225, 227 (Tenn. Crim. App. 1994) (“consent is never a defense to a
sex offens e when the victim is less than thirteen years of age .”)

        2
          I would further adopt, if necessary, a conclusive presumption that parents cannot consent on
behalf of their children to, for instance, sexual intercourse.

        3
           “Statutory rape is sexual penetration of a victim by the defendant or of the defendant by the
victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant
is at leas t four (4) years older tha n the victim .” T.C .A. § 39-13 -506 (a) (S upp . 1996).

        4
            Victims of statutory rape m ust be at least thirteen. T.C.A. § 39 -13-506(a)(Su pp. 1996).

                                                       4
be alleged in the indictment. It has not been alleged in the indictment sub judice.

Accordingly, I would hold the indictment in the instant case constitutionally inadequate

insofar as it attempts to charge the defendant with rape of a child.



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



                                          ____________________________________
                                          JOHN H. PEAY, Judge




                                            5
