#25693-a-SLZ

2011 S.D. 36

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

               THE PEOPLE OF THE STATE OF SOUTH DAKOTA,
                        IN THE INTEREST OF J.L.,
                          A MINOR CHILD AND
                 CONCERNING K.S., RESPONDENT MOTHER

                                   * * * *

                   APPEAL FROM THE CIRCUIT COURT
                   OF THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   * * * *

                        HONORABLE JOSEPH NEILES
                                Judge

                                   * * * *


MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee, State of South
                                             Dakota.

AMBER EGGERT
Minnehaha County Public
 Defender’s Office
Sioux Falls, South Dakota                    Attorneys for appellant, J.L.

                                   * * * *

                                             CONSIDERED ON BRIEFS
                                             ON APRIL 25, 2011

                                             OPINION FILED 07/06/11
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ZINTER, Justice

[¶1.]        J.L. was adjudicated a delinquent child for an act that, had he been an

adult, would have constituted a violation of SDCL 22-22-1(1), statutory rape. The

act occurred when J.L., who was fourteen, engaged in consensual sexual intercourse

with his girlfriend (Girlfriend), who was twelve. J.L. argues that the application of

the first-degree rape statute to these facts creates an absurd result the Legislature

did not intend. Because we conclude that J.L. engaged in an act plainly proscribed

by the language of the statute, we affirm.

[¶2.]        The facts are not in dispute. J.L. was fourteen at the time he engaged

in consensual sexual intercourse with his twelve-year-old girlfriend. The age

difference between J.L. and Girlfriend was just over fifteen months. Girlfriend

became pregnant as a result, and the pregnancy triggered an investigation that led

to the filing of a juvenile petition against J.L. The circuit court adjudicated J.L. as

a delinquent child under SDCL 26-8C-2 (providing that a delinquent child is “any

child ten years of age or older who, regardless of where the violation occurred, has

violated any federal, state, or local law or regulation for which there is a penalty of

a criminal nature for an adult”). The underlying criminal offense for which there

was a penalty of a criminal nature was SDCL 22-22-1(1) (statutory rape), a statute

under which Girlfriend was legally incapable of giving consent.

[¶3.]        On appeal, J.L. argues that the application of SDCL 22-22-1(1) to the

facts of this case creates an absurd result, one not reasonably intended by the




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Legislature. 1 SDCL 22-22-1 provides in pertinent part: “Rape is an act of sexual

penetration accomplished with any person . . . [i]f the victim is less than thirteen

years of age[.]” J.L. concedes that “[u]sing the plain meaning and effect of the

statute, the facts of J.L.’s case do meet the elements of rape in the first degree.” But

J.L. contends it is absurd that a fourteen-year-old boy, involved in consensual

sexual intercourse with his girlfriend, just fifteen months younger, could be

adjudicated a delinquent for violating SDCL 22-22-1(1).

[¶4.]         A statute written in plain terms may nevertheless lead to an absurd

result. Generally:

              The intent of a statute is determined from what the
              [L]egislature said, rather than what the courts think it should
              have said, and the court must confine itself to the language
              used. Words and phrases in a statute must be given their plain
              meaning and effect. When the language in a statute is clear,
              certain and unambiguous, there is no reason for construction,
              and the Court’s only function is to declare the meaning of the
              statute as clearly expressed.

W. Consol. Coop v. Pew, 2011 S.D. 9, ¶ 34, 795 N.W.2d 390, 399 (citation omitted).

But “[a]mbiguity is a condition of construction, and may exist where the literal

meaning of a statute leads to an absurd or unreasonable conclusion.” In re Sales

Tax Refund Applications of Black Hills Power & Light Co., 298 N.W.2d 799, 803

(S.D. 1980). We review the circuit court’s construction of statutes de novo. See

Schafer v. Shopko Stores, Inc., 2007 S.D. 116, ¶ 5, 741 N.W.2d 758, 760.

[¶5.]         Courts considering rape and sexual assault statutes under similar

facts have reached mixed results. J.L. relies on In re Z.C., 165 P.3d 1206 (Utah


1.      J.L. presents this argument by challenging the circuit court’s denial of his
                                                                   (continued . . . )

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2007). In that case, a twelve-year-old boy and a thirteen-year-old girl engaged in

consensual sexual intercourse resulting in a pregnancy. Both juveniles were

adjudicated delinquents under a statute prohibiting sexual abuse of a child. The

girl, Z.C., appealed. The Utah Supreme Court concluded that application of the

statute led to an absurd result because the Legislature could not have intended the

girl to be treated as both a victim and a perpetrator of child sexual abuse:

             [W]e find that the plain language of Utah Code section 76-5-
             404.1 allows Z.C. to be adjudicated delinquent for child sex
             abuse. However, we also find that applying the statute to treat
             Z.C. as both a victim and a perpetrator of child sex abuse for the
             same act leads to an absurd result that was not intended by the
             legislature.

Id. at 1208. The Utah court also found an absurd result because both children were

adjudicated as delinquents for sex abuse in the same incident. Id. The court noted

that the child sex abuse statute contemplates a perpetrator and a victim. But:

             By filing delinquency petitions for child sex abuse against both
             participants for sexually touching one another, the State treats
             both children as perpetrators of the same act. In this situation,
             there is no discernable victim that the law seeks to protect, only
             culpable participants that the State seeks to punish.

Id. at 1212. The court found it an unintended absurdity to apply the statute,

designed to protect one class of individuals from another, so as to treat both

participants as both victim and perpetrator. Id.

[¶6.]        J.L.’s reliance on the Utah decision is misplaced because Girlfriend

could not have been charged as a perpetrator. A violation of SDCL 22-22-1(1)

cannot occur unless there is sexual penetration of a child under the age of thirteen.

_____________________________
( . . . continued)
          motion to dismiss and the court’s finding of delinquency.

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At the time of this incident, J.L. was over thirteen. Therefore, Girlfriend could not

have been prosecuted for first-degree rape of J.L. and neither basis for the Utah

court’s conclusion is present. Girlfriend could not have been both a perpetrator and

a victim in the same incident.

[¶7.]        In re Ryan G., 2002 WL 484921 (Ohio Ct. App. 2002) is more

analogous. Ryan G. involved a thirteen-year-old boy who engaged in sexual

intercourse with a twelve-year-old girl. The parties were separated in age by

approximately seven months. The boy challenged the trial court’s denial of his

motion to dismiss on the ground that application of a statutory rape statute created

an absurd result. The court disagreed stating:

             [T]he language of R.C. 2907.02(A)(1)(b) is clear, and by entering
             the stipulations he did, appellant admitted that he committed
             rape. Nevertheless, appellant contends that this result is unjust
             because the legislature could not have intended that a juvenile
             is guilty of rape when he engages in consensual sex with another
             juvenile of roughly equal age but under the age of thirteen.
             However, the terms of the statute are clear, and the statute does
             not carve out an exception for consensual sex between parties of
             roughly equal age. Further, we cannot say as a matter of law
             that this result is unjust or absurd.

Id. *2.

[¶8.]        Although reaching different results, the two cases do not conflict. The

Utah court found an unintended absurdity only because application of the child sex

abuse statute resulted in both juveniles being victims and perpetrators in the same

incident. Z.C., 165 P.3d at 1212. In contrast, the Ohio statutory rape statute was

not applied to adjudicate the juveniles as both perpetrators and victims in the same

incident. See Ryan G., 2002 WL 484921. Thus, because SDCL 22-22-1(1) was only

applied to one juvenile, neither court would find an absurdity in the language of the

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statute even though J.L. was only fourteen and the juveniles’ age differential was

not large.

[¶9.]          J.L. was the only participant who could have been adjudicated a

delinquent, and Girlfriend was the only participant who was under the legal age of

consent. Application of SDCL 22-22-1(1) to these facts does not suggest an

unintended absurdity. By determining the age of consent to be thirteen, the

Legislature exercised its prerogative to protect children under thirteen from persons

over thirteen years of age. And although J.L. was only fourteen, the Legislature

has determined that fourteen-year-olds are capable of committing criminal offenses.

See SDCL 22-3-1(2). Although this Court has declined to apply statutes in ways

that are truly absurd, 2 J.L. has not demonstrated an unintended absurdity here.

[¶10.]         We also observe that had the Legislature intended to exclude juveniles

like J.L. from delinquency proceedings because of the age differential between the

perpetrator and victim, it knew how to do so. One need only look to SDCL 22-22-


2.       See Dakota Plains AG Center, LLC v. Smithey, 2009 S.D. 78, ¶ 50, 772
         N.W.2d 170, 186 (finding an absurd result when application of one statute
         would render another statute meaningless); Schafer v. Shopko Stores, Inc.,
         2007 S.D. 116, ¶ 12, 741 N.W.2d 758, 763 (refusing to interpret a statute in a
         way that would make a party tortiously liable for engaging in legal conduct);
         Argus Leader v. Hagen, 2007 S.D. 96, ¶ 14, 739 N.W.2d 475, 480 (rejecting an
         “expansive interpretation” of a statute that “would make every document
         generated by or in the possession of government a public record with the
         accompanying requirement that it be maintained. This would include such
         things as ephemeral notes and phone messages.”); Moeller v. Weber, 2004
         S.D. 110, ¶ 46, 689 N.W.2d 1, 16 (rejecting statutory interpretation that
         “contravenes the fundamental principle that the defense cannot be required
         to present any evidence whatever.”); Patterson v. Linn, 2001 S.D. 135, ¶ 8,
         636 N.W.2d 467, 469 (rejecting interpretation that “makes the statute self-
         contradictory and contravenes the pattern of municipal governance defined in
         our statutory scheme.”).


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1(5) to find such an example. That subsection provides that rape of thirteen- to

fifteen-year-olds occurs only if “the perpetrator is at least three years older than the

victim.” See also SDCL 22-22-7 3 (requiring consideration of the age differential in

determining the degree of culpability of those charged with sexual contact).

Because the Legislature declined to require any type of minimum age differential

for the rape of children less than thirteen years of age, we do not conclude that the

application of SDCL 22-22-1(1) to J.L. created an absurdity not intended by the

Legislature.

[¶11.]         Finally, J.L. highlights the gravity of the adult criminal offense,

pointing out that an adult found guilty of first-degree rape is subject to life

imprisonment. Although life imprisonment is second in severity only to capital

punishment, J.L. does not face life in prison. As an adjudicated delinquent, J.L. will

be subject to the rehabilitative sanctions of the juvenile court system. Under that

system, the most severe sanction is a committal to the Department of Corrections

until his twenty-first birthday. See SDCL 26-7A-117. But see SDCL 22-24B-2. 4



3.       SDCL 22-22-7 provides:

               Any person, sixteen years of age or older, who knowingly
               engages in sexual contact with another person, other than that
               person’s spouse if the other person is under the age of sixteen
               years is guilty of a Class 3 felony. If the victim is at least
               thirteen years of age and the actor is less than five years older
               than the victim, the actor is guilty of a Class 1 misdemeanor.

4.       We call to the attention of the Legislature other significant consequences
         resulting from other statutory provisions implicated in this case. It appears
         that J.L. will be required to register as a sex offender for life. See SDCL 22-
         24B-2.

                                                                     (continued . . . )
                                            -6-
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[¶12.]       J.L. was over thirteen, Girlfriend was not. Application of the first-

degree rape statute to the present facts does not create an unintended absurdity.

[¶13.]       The adjudication is affirmed.

[¶14.]       GILBERTSON, Chief Justice, concurs.

[¶15.]       KONENKAMP and SEVERSON, Justices, and MEIERHENRY,

Retired Justice, concur specially.



MEIERHENRY, Retired Justice (concurring specially).

[¶16.]       I concur but write specially. Under the facts of this case, there are

serious problems with a juvenile delinquency petition based on the criminal charge

of rape in first degree under SDCL 22-22-1(1) (defining rape as sexual penetration

with a person “less than thirteen years of age”). The consequences of labeling this

fourteen-year-old juvenile a sex offender for life are far afield from the intended




_____________________________
( . . . continued)
          In 2006, the Legislature amended this statute to require a juvenile who is
          adjudicated a delinquent for a violation of SDCL 22-22-1 to register as a sex
          offender upon reaching fifteen years of age. Id. SDCL 22-24B-2 previously
          required registration only if the juvenile was fifteen years old or older at the
          time of the adjudication. See SDCL 22-24B-2 (2005). As a result of the new
          language and Girlfriend’s age, J.L. will be required to be registered as a sex
          offender for the rest of his life. See SDCL 22-24B-19 (only allowing a sex
          offender to be eligible for removal from the sex offender registry after ten
          years if he can show that the circumstances surrounding the crime requiring
          registration did not involve a child under the age of thirteen); SDCL 22-24B-
          19.1 (only allowing removal after twenty-five years upon the same showing);
          SDCL 22-24B-19.2 (providing “[a]ny person, who is on the sex offender
          registry and who is not eligible for removal pursuant to §§ 22-24B-19 and 22-
          24B-19.1 is a Tier III offender.”); SDCL 22-24B-2.1 (“[p]lacement in Tier III
          requires registrants to register throughout their lifetime.”).

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purpose of a juvenile petition of “affording guidance, control, and rehabilitation of

any . . . delinquent child.” SDCL 26-7A-6.

[¶17.]       We have consistently recognized that “[t]he purpose of juvenile court

proceedings is not to punish but rather to rehabilitate and correct a juvenile’s

behavior so as to avoid future confrontations with the law.” In re S.K., 1999 S.D. 7,

¶ 11, 587 N.W.2d 740, 742 (quoting State v. Jones, 521 N.W.2d 662, 667 (S.D.

1994)). The juvenile system is intended to encourage rehabilitation, “unlike the




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harsher, more punitive adult system.” In re Z.B., 2008 S.D. 108, ¶ 33, 757 N.W.2d

595, 606 (Sabers, J., dissenting).

[¶18.]       The mandatory disposition of this case appears to have the opposite

effect. Rather than promoting J.L.’s rehabilitation, the State has ensured that J.L.

will be labeled as a sex offender for the rest of his life. With that label comes a

significant social stigma, reporting requirements, and living restrictions. See SDCL

ch. 22-24B. The rehabilitative effect of these requirements is not obvious. The

punitive effect is. Branding this child a rapist and life-long sex offender almost

assures he cannot succeed as a productive juvenile or adult.

[¶19.]       It is hard to believe that the Legislature intended the rape statutes

and juvenile petitions to be used to punish children in this manner. This Court has

recognized that it will presume that “the [L]egislature did not intend an absurd or

unreasonable result.” Dakota Plains AG Center, LLC v. Smithey, 2009 S.D. 78, ¶

47, 772 N.W.2d 170, 186. Instead, “[s]tatutes should be given a sensible, practical

and workable construction, and to such end, the manifest intent of [the]

[L]egislature will prevail over [the] literal meaning of the words.” State v. Davis,

1999 S.D. 98, ¶ 7, 598 N.W.2d 535, 537-38 (citation omitted).

[¶20.]       Even so, I have to agree with the majority that we cannot conclude as a

matter of law that the application of these statutes creates an absurd result. It

does, however, create an extremely harsh result. Prosecutorial discretion in

charging J.L. with this particular crime left the circuit court with few options since

the facts technically fit the statutory language. Once the circuit court determined

that the child was guilty of the statutory rape charge in the delinquency petition,


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the child was caught in the maelstrom of the sexual registry and all its

consequences.

[¶21.]       KONENKAMP and SEVERSON, Justices, join this special writing.




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