APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE JOSEPH NEILES Judge
The opinion of the court was delivered by: 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 under SDCL 22-22-1(1), 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 Legislature.*fn1 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 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
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. 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 statue 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 ...