Age ain’t nothin’ but a number

What is the key to the courthouse? 

T.C. v. L.D., 2020 VT 19

By Andrew Delaney

Can a thirteen-year-old be subject to an order of protection against stalking or sexual assault? The trial court didn’t think so but the trial court was wrong.

Plaintiff filed a complaint against L.D. because, according to her, she was staying over at her friend’s house and L.D.—friend’s brother—woke her up by attempting to put his penis in her anus. Now, I am not a judge, but this would seem like a good basis for an order against stalking or sexual assault.

Plaintiff sought an emergency order. Here’s the wrinkle: L.D. was thirteen and plaintiff was seventeen when she sought the order. Because the trial court thought the stalking and sexual assault (SSA) statutes didn’t allow for such an order against a minor, the trial court denied the emergency order. Plaintiff sought a hearing, the parties filed memoranda, and the trial court tossed plaintiff’s complaint on the same basis that it denied the emergency order. 

Plaintiff appeals.

SCOV notes that the question here—whether a minor can be subject to an order against stalking and sexual assault—is pure law and SCOV reviews the lower court’s ruling without any deference.

We get the standard statutory-construction throat clearing. SCOV’s primary objective is to follow the legislature’s intent; the plain meaning controls unless there’s a need to go further due to ambiguity or uncertainty in the language; et cetera, et cetera.

Here, SCOV holds: “There is nothing in the SSA statute that expressly limits who may be the subject of an SSA complaint.” A minor 16- or 17-year old can seek an order on his or her own, but there’s no limitation on who can be subject to an order. The trial court apparently relied on the 16-or-above amendment to conclude that the Legislature—by not specifically mentioning that minors can be subject to protective orders—intended to exclude minors as subjects of orders. This reasoning was based on a canon of statutory construction known as expressio unius est exclusio alterius, aka “the expression of one thing is the exclusion of another.” Because I’ve googled this maxim several times to grab the Latin so I can “sound” smart in my own court filings, I was cautiously excited to see it in this opinion.

And that excitement is short lived. The canon doesn’t apply here. All the legislature did with the amendment allowing 16-or-older minors to file a complaint was provide “a simplified way for sixteen- and seventeen-year-old minors to file an action seeking an SSA order.” All it really results in is that a minor above 16 doesn’t need a guardian or next best friend to file a complaint for an anti-stalking-and-sexual-assault protective order.

“Because the plain language of the statute is unambiguous,” the trial court didn’t need to get into statutory construction principles to discern the legislature’s intent. SCOV also notes that the amendment didn’t create a new class of persons who can sue; it simply designated a class of minors that can use simplified filing requirements. Thus there was no contrary-and-opposite construction that justifies using cool Latin phrases that have the potential to sound smart. And so, because the statute is silent on who may be the subject of an SSA complaint, SCOV looks to the common law.

Suits against minors at common law were allowed, but minors get special protections—like appointment of a guardian or next best friend. This is carried forward with our rules of civil procedure (Rule 17(b) for you nerds out there). The statute applicable here—because it contains no limitations—allows all minors to sue and be sued as long as the suits are consistent with the rules and common law.

SCOV also notes that the relief-from-abuse statutes have no age limits and that “[c]onstruing the SSA statute as the trial court did would leave victims of sexual assault at the hands of an unrelated minor with whom no dating relationship existed and who did not live in the same home as the perpetrator without recourse.” SCOV reasons that the legislature didn’t intend for that to be the case. And while SCOV ain’t no Miss Cleo, that’s probably a safe assumption.

The trial court also determined that the logistical issues—required appointment of a GAL and likely an attorney for the child—conflicted with the SSA complaint-resolution timelines and that this created an absurd result. SCOV doesn’t buy it. Yes, there are some tight timelines but there are also exceptions to the tight timeframes for a defendant to get counsel and a GAL in this type of case need not be specially trained. So the logistical hurdles are less prohibitive than the trial court thought, and they’re certainly not an adequate basis for dismissing the complaint. SCOV ends the analysis on this point by noting that not allowing complaints against minors because of logistical hurdles is the more likely “absurd result” we want to avoid.

Finally, SCOV dismisses the trial court’s reasoning that the availability of criminal prosecution somehow plays a role in whether the civil order is available. It’s not one or the other.

SCOV ends by opining that he limitation requiring defendants in SSA protection-order cases to be adults does not exist. If the legislature wants to impose such a restriction, it is free to do so, but that’s not the trial court’s role under these facts.

This one gets sent back to the trial court for a hearing on the merits.