                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE STATE OF NEVADA,                                  No. 67710
                Appellant,
                vs.
                DWIGHT CONRAD SOLANDER,
                Respondent.
                THE STATE OF NEVADA,                                  No. 67711
                Appellant,
                vs.
                JANET SOLANDER,
                Respondent.
                                                                                    FILED
                                                                                    APR 1 9 2016
                                                                                  TRADIE K. LINDEMAN
                                                                               CLERK OF , SUPREME COU
                                 ORDER OF REVERSAL AND REMAND                  EY    •
                                                                                    DEPUTY CLEW


                            These are consolidated appeals from district court orders
                granting respondents' pretrial petitions for writ of habeas corpus. Eighth
                Judicial District Court, Clark County; Valerie Adair, Judge.
                            Pretrial writs of habeas corpus may be granted if a district
                court determines "that an affirmative defense exists as a matter of law
                based solely on its review of the transcript of a preliminary hearing."
                Sheriff, Clark CV. v. Roylance,    110 Nev. 334, 338, 871 P.2d 359, 361
                (1994). If a district court's conclusions of law are based on its
                interpretation of a statute, this court reviews those conclusions de novo.
                Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402, 405 (2014). Here,
                we are asked to decide whether, as a matter of law, the district court erred
                in concluding that the insertion of a catheter into the urethra of a minor
                under the age of 14 cannot constitute sexual assault. We reverse and
                remand.

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                                                      I.
                            In March 2014, the State charged the Solanders with child
                abuse and endangerment and with sexually assaulting their three foster
                daughters. At the preliminary hearing, the three girls testified that the
                Solanders catheterized them as a form of punishment for urinary
                incontinence, with threats to mutilate their genitals with a razor blade if
                they resisted the catheterization and diel not stop soiling themselves. The
                Solanders filed pretrial petitions for writ of habeas corpus alleging that, as
                a matter of law, inserting a catheter into a child's urethra cannot
                constitute sexual assault under NRS 200.366. The Solanders denied
                catheterizing the girls but argued that, even if they did catheterize them,
                they did so for a legitimate medical purpose and without sexual
                motivation. The district court granted the petitions, concluding that "it is
                not within the statutory meaning or legislative intent for the insertion of a
                catheter to meet the elements of Sexual Assault."


                            Two statutes are at issue in this case: NRS 200.366 and NRS
                200.364. NRS 200.366 defines "sexual assault," while NRS 200.364
                defines "sexual penetration." NRS 200.366(1) defines sexual assault in
                terms of sexual penetration:
                            A person who subjects another person to sexual
                            penetration, or who forces another person to make
                            a sexual penetration• on himself or herself or
                            another, or on a beast, against the will of the
                            victim or under conditions in which the
                            perpetrator knows or should know that the victim
                            is mentally or physically incapable of resisting or
                            understanding the nature of his or her conduct, is
                            guilty of sexual assault.



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                 NRS 200.364(5) defines sexual penetration, as used in NRS 200.366, to
                 mean "cunnilingus, fellatio, or any intrusion, however slight, of any part of
                 a person's body or any object manipulated or inserted by a person into the
                 genital or anal openings of the body of another, including sexual
                 intercourse in its ordinary meaning." (Emphases added.) In 2015, the
                 Legislature amended NRS 200.364(5) to add a final sentence stating that
                 "[t]he term [sexual penetration] does not include any such conduct for
                 medical purposes." 2015 Nev. Stat., ch. 399, § 7, at 2235.
                             To the State, the language of NRS 200.366 and 200.364 is
                 plain, clear, and unambiguous. Thus, the State argues that its allegations
                 that the Solanders inserted a catheter into the urethra of each of the girls
                 without their consent are sufficient to sustain charges of sexual assault.
                 The Solanders counter that the acts "were not sexually motivated" but
                 rather were undertaken for a "legitimate medical purpose." The State
                 offers two responses to the Solanders' arguments. First, the definitions of
                 sexual assault and sexual penetration do not include a requirement that
                 the penetration be sexually motivated. Second, because sexual assault
                 requires a showing of general intent—not strict liability as the Solanders
                 suggest with their "per se penetration" arguments—the purpose of the
                 penetration presents a question of fact for the jury to decide, not the court.
                 We agree with the State.
                                                       A.
                              Neither the definition of "sexual assault" nor the definition of
                 "sexual penetration" includes an element of sexual motivation or
                 gratification. See NRS 200.364(5); NRS 200.366. Because NRS 200.364(5)
                 and 200.366 are unambiguous, the plain language of the statutes control,
                 and we give that language its ordinary meaning. See City Council of Reno

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                v. Reno Newspapers, Inc., 105 Nev. 886, 891, 784 P.2d 974, 977 (1989)
                ("When the language of a statute is plain and unambiguous, a court should
                give that language its ordinary meaning and not go beyond it.").
                            Comparing the statutory provision making sexual seduction a
                crime with the sexual assault statutes confirms our reading of the latter.
                In contrast to sexual assault, the offense of statutory sexual seduction
                expressly requires sexual motivation in addition to sexual penetration.
                See NRS 200.364(6) (2013) ("Statutory sexual seduction' means: . . . (b)
                Any other sexual penetration committed by a person 18 years of age or
                older with a person under the age of 16 years old with the intent of
                arousing, appealing to, or gratifying the lust or passions or sexual desires
                of either of the persons." (emphasis added))) Because the Legislature
                included an element of sexual motivation in its definition of statutory
                sexual seduction but did not do so in its definitions of sexual assault or
                sexual penetration, "it should be inferred that the omission was
                intentional."   In re Christensen, 122 Nev. 1309, 1323, 149 P.3d 40, 49
                (2006) ("One basic tenet of statutory construction dictates that, if the
                legislature includes a qualification in one statute but omits the
                qualification in another similar statute, it should be inferred that the
                omission was intentional.").
                            The fact that "sexual" modifies "assault" and "penetration in
                NRS 200.364(5) and NRS 200.366 does not, as the Solanders suggest,
                impliedly require sexual motivation; the more reasonable reading,
                especially given the Legislature's express articulation of a sexual

                       'In 2015, the Legislature amended the definition of "statutory sexual
                seduction." We quote the pre-2015 version in the text. See 2015 Nev.
                Stat., ch. 399, § 7, at 2235.


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                   motivation requirement in NRS 200.364(6) for sexual seduction, is that
                   the word "sexual" as used in NRS 200.364(5) and NRS 200.366 references
                   the body parts involved, not motivation.      Cf. United States v. JDT, 762
                   F.3d 984, 1001 (9th Cir. 2014) (rejecting argument that statute penalizing
                   certain "sexual acts" required sexual motivation and holding that "sexual
                   act" as a defined term referred to the body parts involved not the actor's
                   motivation). Therefore, under the plain language of the statutes, "sexual
                   assault" and "sexual penetration" do not require sexual gratification or
                   motivation as their object for the crime of sexual assault to occur.    See also

                   Buffalo v. State, 111 Nev. 1139, 1144, 901 P.2d 647, 650 (1995) (rejecting
                   as a "totally incorrect legal supposition" the suggestion "that no valid
                   judgment of conviction [for sexual assault] could be entered . . . absent
                   proof of sexual motivation on [the defendant's] part") (plurality). 2
                                  The Solanders argue that a literal reading of NRS 200.364(5)
                   and NRS 200.366 produces an absurd result, for it "criminalize[s] every
                   doctor, nurse, or parent who must, for example, insert a finger inside a
                   child's rectum to dislodge a stoppage caused by constipation or to clean
                   areas soiled by dirty diapers or insertion of a suppository." On this basis,
                   the Solanders urge this court to apply the rule of lenity to NRS 200.364's
                   definition of sexual penetration. But "ambiguity is the cornerstone of the
                   rule of lenity, [and] the rule only applies when other statutory
                   interpretation methods, including the plain language, legislative history,

                         2 Thisinterpretation is consistent with the legislative history of NRS
                   200.364 and 200.366, which discussed rape and sexual assault as crimes of
                   violence, not sex, finding that sexual assault is committed primarily for
                   power, then for anger, and finally, in a small number of cases, for sexual
                   gratification. Hearing on S.B. 412 Before the Senate Judiciary Comm.,
                   59th Leg. (Nev., April 5, 1977).


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                 reason, and public policy, have failed to resolve a penal statute's
                 ambiguity." State v. Lacer°, 127 Nev. 92, 99, 249 P.3d 1226, 1230 (2011)
                 (internal citations and quotations omitted). We decline to apply the rule of
                 lenity because the statutory definitions of "sexual assault" and "sexual
                 penetration" are not ambiguous.
                                                      B.
                             The Solanders argue, and the district court agreed, that the
                 insertion of a catheter into the urethra to void the bladder for legitimate
                 medical purposes should not constitute sexual assault as a matter of law
                 and sound public policy. 3 The Solanders point to the 2015 amendments to
                 NRS 200.364, which added the proviso that "[tie term [sexual
                 penetration] does not include ... conduct [involving penetration] for
                 medical purposes." 2015 Nev. Stat., ch. 399, § 7, at 2235. This
                 amendment brought NRS 200.364(5) and NRS 200.366 into line with
                 statutes in at least 14 other states that have• similar bona Me medical
                 purpose exceptions in their sexual assault statutes. See Model Penal Code
                 § 213.06 comment on Sexual Assault and Related Offenses (Am. Law Inst.,
                 Discussion Draft No. 2, 2015) (discussing proposed § 213.06, which

                       3 Janet also asserts that the alleged conduct does not constitute
                 sexual assault based on her attempt to distinguish the urinary opening, or
                 urethra, from one's genital opening. Penetration of the urethra, however,
                 is encompassed under NRS 200.364's definition of "sexual penetration."
                 See NRS 200.364(5) (stating "genital or anal opening" under definition of
                 sexual penetration); see Tyler v. State, 950 S.W.2d 787, 789 (Tex. Ct. App.
                 1997) (upholding sexual assault charge after concluding that urethra is
                 included in the female genitalia, which is all the statute requires); see also
                 People v. Quintana, 108 Cal. Rptr. 2d 235, 238 (Ct. App. 2001) ("[A]
                 'genital' opening is not synonymous with a 'vaginal' opening. „ . The
                 vagina is only one part of the female genitalia, which also include inter
                 alia the labia majora, labia minor, and the clitoris.").


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                 provides that otherwise criminal "sexual penetration" does not occur if
                 "done for bona fide medical, hygienic, or law enforcement purposes," and
                 noting that statutes in 14 states have some form of this exception).
                                 The 2015 amendment to NRS 200.364(5), adding an express
                 "medical purpose" exception to Nevada's sexual assault statute, does not
                 apply to the Solanders' alleged conduct, which occurred before its effective
                 date.    See 2015 Nev. Stat., ch. 399, § 27, at 2245 (stating that the
                 amendatory provisions of NRS 200.364(5) "apply to an offense that is
                 committed on or after October 1, 2015"). Nonetheless, as the State itself
                 suggests, sexual penetration that is proven to have been undertaken for a
                 bona fide medical purpose, as when a doctor assists an unconscious
                 woman in delivering a baby, may not establish the crime of sexual assault,
                 either because consent to the penetration is implied under such
                 circumstances, see NRS 200.366(1) (the penetration must be "against the
                 will of the victim"), because the criminal law generally requires mens rea,
                 see NRS 193.190, 4 or because the defense of necessity applies. 5



                             193.190 provides: "In every crime or public offense there must
                         4 NRS

                 exist a union, or joint operation of act and intention, or criminal
                 negligence." (Emphasis added.) The State agrees with this interpretation,
                 placing the burden of proving the requisite mens rea on the State, which
                 can be negated by the defense of a legitimate medical purpose. See People
                 v. Burpo, 647 N.E.2d 996, 998 (Ill. 1995) (holding that a gynecologist's
                 "good faith will protect him from criminal sanctions," and requiring the
                 State to "prove that the gynecologist possessed a mental state of intent,
                 knowledge, or recklessness," which the gynecologist can rebut).

                            State asserts consent, lack of mens rea, and necessity as
                         5 The

                 possible defenses or theories the Solanders may argue at trial, depending
                 on proof. At this stage in the proceedings, none of these defenses or
                 theories were argued and developed below, precluding this court from
                                                                      continued on next page...
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                             Indeed, such has been the holding of other state courts that
                 have interpreted statutes that, like NRS 200.364(5) and NRS 200.366
                 before their 2015 amendment, did not include an express bona fide
                 medical purpose exception. E.g., State v. Lesik, 780 N.W.2d 210, 214 (Wis.
                 Ct. App. 2009) ("It would be equally absurd to imagine the legislature
                 intended to include legitimate medical, health care and hygiene
                 procedures within the bounds of 'sexual intercourse' for the assault of a
                 child statute. . .. Accordingly, . . . 'sexual intercourse' as used in the sexual
                 assault of a child statute does not include 'bona fide medical, health care,
                 and hygiene procedures."); see also Roberson v. State, 501 So. 2d 398, 400
                 (Miss_ 1987) ("Although, on its face, the definition of sexual penetration
                 announced in § 97-3-97 encompasses any penetration, the Court holds the
                 parameters of the definition of sexual penetration are logically confined to
                 activities which are the product of sexual behavior or libidinal
                 gratification, not merely the product of clinical examinations or domestic,
                 parental functions.").
                              We thus agree that, if the Solanders undertook the
                 catheterization for a bona fide medical purpose, they may avoid criminal
                 liability under NRS 200.366. The problem is, though, that the question is
                 not just a question of law, but also one of fact. In this case, as the State
                 asserts, evidence adduced at [the] preliminary hearing illustrated that
                 the catheters were used as a form of punishment, not for any medical use."
                 Accordingly, we disagree with the Solanders that the insertion of a
                 catheter into the urethra cannot constitute sexual assault as a matter of

                 ...continued
                 adopting them as a matter of law and circumventing the jury's role in
                 deciding questions of fact.


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                   law because, while a catheter has a medical purpose, it does not
                   necessarily follow that it was used for legitimate medical purposes. The
                   reasons why a catheter was used, and the manner in which it was used,
                   are questions of fact for the jury, not the court, to decide.           See State v.
                   Preston, 30 Nev. 301, 308, 97 P. 388, 388 (1908) ("[Judges shall not charge
                   juries in respect to matters of fact." (internal quotation omitted)); see also
                   Winnerford Frank H. v. State, 112 Nev. 520, 526, 915 P.2d 291, 294 (1996)
                   (holding the State must prove the required mens rea to commit sexual
                   assault beyond a reasonable doubt as it is a general intent crime).


                                 The district court erred when it held, as a matter of law, that
                   the insertion of a catheter into the urethra of a minor under the age of 14
                   cannot, under any circumstances, constitute sexual assault. Here, the
                   preliminary hearing testimony provides probable cause to support the
                   charges of sexual assault, and the law does not prohibit the State from
                   proceeding with these charges. Accordingly, we
                                 ORDER the judgment of the district court REVERSED AND
                   REMAND this matter to the district court for proceedings consistent with
                   this order.


                                                           /        frea.4;                    J.
                                                        Hardesty


                                                                          11   .■••••■".       J.
                                                        Saitta


                                                                                           ,   J.


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                   cc:   Hon. Valerie Adair, District Judge
                         Attorney General/Carson City
                         Clark County District Attorney
                         Mueller Hinds & Associates
                         Eighth District Court Clerk




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