Appeal from the Superior Court of the District of Columbia. No. M-4901-02. Hon. William M. Jackson, Trial Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 21, 2004
Before FARRELL and GLICKMAN, Associate Judges, and NEBEKER, Senior Judge.
Opinion concurring in the result by Associate Judge FARRELL at p. 10.
Marvin L. Davis was charged by information with one count of misdemeanor sexual abuse in violation of D.C. Code § 22-3006 (2001).*fn1 He was convicted in a bench trial of the lesser-included offense of attempted misdemeanor sexual abuse, as defined by D.C. Code § 22-3018.*fn2 In finding Davis guilty, the trial judge credited the testimony of the complainant, Davis's eleven-year-old daughter. According to her account, she and Davis were at home watching television when he asked her to massage his back. During the massage, Davis turned over, and, with his hands in his shorts, he exposed his penis and asked his daughter to rub it. 6She ran out of the room and reported the incident to her mother and, subsequently, to her therapist, who informed the authorities.
Davis claims that the trial judge erred as a matter of law in concluding that a consent defense is not available to a defendant charged with attempted misdemeanor sexual abuse where the complainant is a child. Davis also claims that, in any event, the government did not present sufficient evidence that he attempted to commit the offense of misdemeanor sexual abuse.
We are not persuaded by either of Davis's claims and therefore affirm his conviction.
As Davis's first claim turns on the proper construction of two statutes, D.C. Code §§ 22-3006 ("Misdemeanor sexual abuse") and 22-3007 ("Defense to sexual abuse"), our review of the claim is de novo. District of Columbia v. Jerry M., 717 A.2d 866, 868 (D.C. 1998). The two provisions at issue were enacted as part of the Anti-Sexual Abuse Act of 1994 ("ASAA"), which revamped the sex offense laws of the District of Columbia. See D.C. Code §§ 22-3001 et seq. The ASAA groups sex offenses into four categories. The offense of misdemeanor sex abuse is in the first category along with four degrees of felony sexual abuse. See D.C. Code §§ 22-3002 to 22-3006. The distinguishing characteristic of these offenses, which we refer to generally as sexual assaults, is the commission of a sexual act or contact against the victim's will or without the victim's consent, typically by means of force or threats or by taking advantage of the victim's incapacitation or impairment. To prove misdemeanor sexual abuse, the least serious offense in this category, the government need only establish that the defendant knew or should have known that the complainant did not give "permission" to the sexual act or contact at issue. D.C. Code § 22-3006; see Mungo v. United States, 772 A.2d 240, 244-45 (D.C. 2001). The term "permission" is not specifically defined in the statute, but in common usage, the word is a synonym for "consent."*fn3
Unlike the general sexual assault offenses in the first category, the offenses in the other ASAA categories address particular situations and relationships in which the victims are deemed incapable of giving meaningful consent, and for which coercion accordingly is presumed. Specifically, the offenses in the second category prohibit any person who is at least four years older than a child from engaging in sexual activity with that child. See D.C. Code §§ 22-3008 to 22-3010 (defining first and second degree child sexual abuse and enticing a child).*fn4 Comparable offenses in the third and fourth ASAA categories target the sexual abuse of wards, patients, and clients. See D.C. Code §§ 22-3013 to 22-3016.
D.C. Code § 22-3007 provides that "consent" by the victim is an affirmative defense to a prosecution for any of the general sexual assault offenses in the first ASAA category, including misdemeanor sexual abuse.*fn5 "Consent" is defined to mean "words or overt actions indicating a freely given agreement to the sexual act or contact in question," with the caveat that "[l]ack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant shall not constitute consent." D.C. Code § 22-3001 (4). In contrast, D.C. Code §§ 22-3011 and 22-3017 provide that consent is not a defense to child sexual abuse and the other victim-specific offenses in the second, third and fourth ASAA categories.*fn6
Davis argues that because § 22-3007 makes consent a defense to misdemeanor sexual abuse, while § 22-3011 precludes consent as a defense only in prosecutions for other offenses, he was not guilty of attempted misdemeanor sexual abuse of his daughter, despite her age, since he sought merely consensual sexual contact.*fn7
We reject this argument, as it is based on a fundamental misreading of the ASAA. Section 22-3011 preserves the longstanding rule that a child is legally incapable of consenting to sexual conduct with an adult.*fn8 The historical premise of that rule is that children cannot consent "in a meaningful way," Williams v. United States, 756 A.2d 380, 386 (D.C. 2000), because they "do not understand what is happening to them." Guarro v. United States, 99 U.S. App. D.C. 97, 100, 237 F.2d 578, 581 (1956). Prior to the ASAA, no exceptions to the rule were countenanced; "when a child under the age of consent is involved the law conclusively presumes force and the question of consent is immaterial." United States v. Jones, 155 U.S. App. D.C. 328, 333, 477 F.2d 1213, 1218 (1973). The purpose of the law thus has long been to protect children, "regardless of the use of force or consent, from any sexual relationship." Ballard v. United States, 430 A.2d 483, 486 (D.C. 1981) (emphasis in original). This fundamental policy continues to animate the ASAA. The drafters viewed sexual conduct between adults and children as "inherently coercive due to the age difference between the participants." COMMITTEE REPORT, supra note 3, at 4. Accordingly, except for the innovation of the four-year age differential requirement, the drafters intended the ASAA to be "consistent with existing law governing indecent acts with children." Id.
The rule that children cannot consent to sexual advances by adults was never restricted to prosecutions for child-specific sexual abuse offenses. On the contrary, the rule has been applied with equal force in general sexual assault prosecutions in which consent by the victim is a recognized defense. When non-violent sexual touching is prosecuted as a simple assault, for instance, the prosecution must establish that the complainant did not consent to being touched. See Mungo, 772 A.2d at 245-46 (holding, inter alia, that non-violent sexual touching assault is a lesser-included offense of misdemeanor sexual abuse). If the complainant was a child at the time of the assault, however, the defense of consent is unavailable. In re A.B., 556 A.2d 645, 649 n.10 (D.C. 1989) (citing Guarro, 99 U.S. App. D.C. at ...