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Legally Speaking

 

Issue: August, 2008
Author: Hon. Keith Gingery

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Giving Specificity to the Indecent Liberties Statute

EDITOR’S NOTE
As Wyoming practitioners know, several members of the Wyoming Legislature are members of the Wyoming State Bar. The Editorial Committee of the Wyoming Lawyer has asked one such Wyoming attorney and member of the Wyoming Legislature to offer his perspective on the 2007 amendment to a Wyoming statute concerning indecent liberties. Representative Keith Gingery generously agreed to provide his insight into the 2007 amendment, along with his analysis of the substance of the new statute. The Editorial Committee is always exploring different angles concerning articles, so we hope you find such an approach interesting. However, as with all articles published in the Wyoming Lawyer, the opinions and analysis are those of the author only.


The “Vaporous Nature” of Indecent Liberties
The old “indecent liberties” statute was seen by many to be overbroad and hard to define. The law used the words immodest, immoral, and indecent, which are not specific. Chief Justice Voigt described “indecent liberties” in his dissent in Moe v. State (Moe I) as having a “vaporous nature.” Justice Kite, in her concurring opinion in Moe I, urged the Wyoming Legislature to consider the issues raised by Chief Justice Voigt in his dissent and to fix the “indecent liberties” statute. Justice Kite effectively addressed the Wyoming Legislature and stated that it is not the province of the courts to legislate, but that the Wyoming Legislature should consider adding clarity, thus avoiding constitutional challenges. Justice Kite even went as far as to provide the Wyoming Legislature with citations to statutes in Colorado, Montana, and Alaska that would potentially provide clarity.


The Judiciary Requests a Change
The suggestion to the Wyoming Legislature was to create specificity in the “indecent liberties” statute. The suggestion was proffered in order to solve what Justice Marilyn Kite of the Wyoming Supreme Court referred to as a “perennial” problem in regard to the constitutionality of the “indecent liberties” statute. The passage of Senate File 104 (2007 Wyoming Session Laws Ch.159) during the 2007 Wyoming Legislative Session created a new statutory scheme for the prosecution of sexual abuse of a minor and hopefully created the specificity needed for the replacement of the “indecent liberties” statute. The suggested legislation by the Wyoming Supreme Court and the Wyoming Legislature’s subsequent action in accordance with the suggestion demonstrates effective communication between the Judicial and Legislative branches of government in Wyoming.


The Legislature Takes Action
Moe I was issued by the Wyoming Supreme Court in May 2005. Representative Hammons of Worland and I read Justice Kite’s concurrence and decided to follow through with her advice. The original bill that provided clarity to the “indecent liberties” act passed the Wyoming House of Representatives, but failed in the Wyoming Senate during the 2006 session. I urged the Joint Judiciary Committee to sponsor our bill in the 2007 session. They did, and the bill was successful and went into effect on July 1, 2007.


A New Statutory Scheme for Sexual Abuse of a Minor
The new law provides an entirely new statutory scheme for sexual abuse of a minor. The already existing three degrees of sexual assault remain, but four new statutes provide specifically for four degrees of sexual abuse of a minor.

It is important to point out that “indecent liberties” still does exist, but instead of being found in Title 14 as a separate and distinct statute, it is now found within the third degree sexual abuse of a minor statute. The bill failed in 2006 because the Wyoming Senate was concerned that “indecent liberties” had been completely removed. Thus, the 2007 bill included “indecent liberties” which helped to ensure its passage. The argument in support of having “indecent liberties” still available as a possible charge was that there needed to be a charge for those actions in which no contact or intercourse occurred, but the behavior was still “indecent.” The example routinely used by prosecutors in support of their argument to leave “indecent liberties” in the bill, was when a defendant masturbated in front of a child or showed pornography to a child, but no contact occurred. Under the proposed 2006 bill, there was no potential charge for such an act. The hope was that by placing “indecent liberties” within the new four degrees of sexual abuse of a minor, as opposed to being an independent statute, prosecutors would charge cases using the new statutes and use the “indecent liberty” charge for those very few select cases that clearly come within the “no contact” examples given above. This would then reduce the number of constitutional challenges overall.

First degree sexual abuse of a minor provides for three separate crimes: sexual intrusion of a child less than 13 years old, sexual intrusion by a relative of a minor, and sexual intrusion of a child less than 16 years old when the actor occupies a position of authority.

Second degree sexual abuse of a minor has the same three separate crimes as does first degree sexual abuse of a minor with the exception that the element of “contact” is substituted for “intrusion.”

Second degree sexual abuse of a minor adds a fourth crime of intrusion on a victim who is 13, 14, or 15 years old (more commonly referred to as statutory rape). The actor must be at least 17 years old, and the victim must be 4 years younger than the actor. (This is commonly referred to as a four year differential.) There was considerable debate in the Wyoming Legislature concerning reducing the differential from 4 to 3 years, but in the end it was decided to remain at a four year differential.

Third degree sexual abuse of a minor continues with the line of statutory rape elements by substituting “contact” for “intrusion.”

Third degree sexual abuse of a minor also continues the line of crimes for “position of authority.” Position of authority includes teachers, employers, and relatives. Both first and second degree sexual abuse of a minor require that the victim be 15 years old or less when the actor is in a “position of authority,” with the difference between first and second degree being whether there was intrusion or contact. In third degree sexual abuse of a minor, the actor must be 20 years of age or older and the victim is either 16 or 17 years old, with at least a four year differential between the actor and victim. Fourth degree sexual abuse of a minor uses the same elements as third degree sexual abuse of a minor in regard to “position of authority,” with the exception that “contact” is substituted for “intrusion.”

Third and fourth degree sexual abuse of a minor also provides for when the act is committed by a minor less than 16 years old against another minor who is less than 13 years of age, with at least a three year differential between the actor and the victim. The difference between the third and fourth degree again being the difference between intrusion and contact.

Last, indecent liberties is included in third degree sexual abuse of a minor, where the actor is 17 years of age or older, the victim is less than 17 years of age, and there is at least a four year differential between the actor and the victim.

The crimes that previously were defined in Title 14 have been repealed out of Title 14 and moved to Title 6. This is part of an effort to try to move criminal statutes out of other titles and concentrate them in Title 6.

The penalties for the existing three degrees of sexual assault were increased and, of course, new penalties were created for the newly created four degrees of sexual abuse of minors. The most contentious debate on the bill involved the penalties, in particular whether the State of Wyoming should move toward minimum mandatory sentences or whether discretion should be left to the judges. For the most part, minimum mandatory sentences were imposed, but not up to the extent as originally proposed for first offenses.

The topic of mandatory minimum sentences will most likely be argued again next year, and that debate may evolve into a perennial one.

Sex Offenses Against Minors Matrix


Present Law Matrix

State Representative Keith Gingery represents House District 23 (Jackson Hole and Dubois) in the Wyoming House of Representatives and also is employed as a Deputy County and Prosecuting Attorney in Teton County, Wyoming. Representative Gingery serves on the House Judiciary Committee and is Co-Chair of both the Select Committee on Mental Health and Substance Abuse and the Wyoming Drug Court Steering Committee.

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