Friday, December 9, 2011

Lack of Intervention

By Jeffrey Thomson

State v. Carrolton, 2011 VT 131

It is easy to assume that the criminal justice system makes easy work out of punishing criminals when there is no question of guilt or innocence.  If someone pleads guilty to a crime, then the prosecutors charge them with the crime, and the trial court sets the punishment. 

Easy as pie, right? 

Not quite.

Sometimes the hardest step is determining how many crimes a defendant has committed in the first place.  This is especially true in cases of assault.  When does an assault become two assaults?  Is each punch or touch considered another assault?  Does time get included into the equation?  Do we consider the attacker’s state of mind when determining the number of assaults?   

Today’s case sheds some light on these questions, in the difficult context of sexual assault.  Thankfully, the SCOV spares most of the details, and we will do the same.  What we know is that Defendant was charged with two counts of lewd-and-lascivious conduct arising out allegations that he rubbed the back, stomach, breasts, and vaginal area of a 16 year old girl while she was lying in bed.  These offensive touches occurred continuously over a short period of time. 

Defendant made a motion to merge the two counts into a single count of lewd-and-lascivious conduct.  The trial court agreed due to the fact that the alleged offensive touching occurred continuously without any intervening act over a short period of time.  In making its decision, the trial court relied on clearly established precedence set out in a 1994 SCOV decision—State v. Perillo.  The State appealed, asking the SCOV to overrule Perillo.

The SCOV decides to uphold the trial court’s decision and declines to overturn Perillo.  In its explanation the SCOV explains that an episode of sexual assault usually involves multiple invasions of different parts of a victim’s body, and that it does not believe that, when writing the criminal statute against sexual assault, the legislature’s intended to punish each unwanted touch separately, but to punish the entire episode of the assault as a single crime.  The SCOV explain that if each touch were treated as separate assaults, it would be “impossible to reasonably define the distinction between the potential for enough and too much punishment under the statute.” 

In its discussion, the SCOV clarifies several closely related factors which should be considered in determining how many assaults have taken place (1) the time between unwanted sexual acts; (2) whether there was an “intervening act” giving the perpetrator enough time to reflect on what he or she was doing and recommit to the assault; and (3) whether the assaults took place at different locations (including within the same building). 

Determining the number of crimes committed is not as easy as it seems at first blush.  The State must wrestle with the facts of each case before bringing the appropriate charges.  To help with these determinations, the SCOV gives an example of a related 1998 decision, which helps to show nuances of all three factors.  In State v. Fuller, the defendant was charged with multiple counts of assault arising from an episode where a boy was assaulted, briefly escaped to a different room, and then was assaulted again in the second room.  In Fuller, the second assault charge was warranted because there was (1) time elapsed between the assaults; (2) an “intervening event” (the boy’s escape) which gave the defendant an opportunity to reflect on the morality of his actions; and (3) a second geographical location in which the second assault took place, even if it was within the same home.

These factors are not new law, but have been set in clear precedence by past SCOV decisions.  It is somewhat surprising that the State chose to challenge clearly established law.  Interestingly, the SCOV does not admonish the State for attempting to challenge this past precedence, but instead leaves the door open for future challenges of this kind.  The SCOV explains, “this Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.”  In this case the State just didn’t have a justification for such a change.

One small victory for defense attorneys, but perhaps one big victory for those who want to directly challenge past precedence!  

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