Building A Strong Wyoming

Giving Specificity to the Indecent Liberties Statute in Wyoming

Giving Specificity to the Indecent Liberties Statute

State Representative Keith Gingery[1]

The Judiciary requests a change.

Since the school finance cases came out a few years ago, there has been some grumbling from the Wyoming State Legislature as to the activist role taken by the Wyoming Supreme Court in legislating school finance reform from the bench.[2]  Some legislators felt that the Wyoming Supreme Court had overstepped its judicial branch role and moved into the arena of legislating.  In 2006, Wyoming legislators again expressed concern that the Wyoming Supreme Court was overstepping its boundaries by legislating from the bench.  The Court faced a unique issue dealing with trade secrets. The Court pointed out that there was no statutory law in Wyoming that could effectively deal with the situation presented in the case, so the Court had no other choice but to create the law.  The Court’s majority was careful to point out that they could not adopt the Uniform Trade Secrets Act, which was the preferable choice, but that the Court could adopt the Restatement (Third) of Unfair Competition, which was a close substitute.  The Wyoming Legislature only allowed the holding to stand for barely over a month before stepping in and adopting the Uniform Trade Secrets Act.[3]  The issue of school finance and trade secrets seems to be a far cry from the issue of indecent liberties with a minor.  It is important to understand that bills move quickly in the short sessions of the Wyoming Legislature, and certain legislators have long memories and do see the interconnection, especially in regard to infringement upon legislative authority.   Thus, it was seen as refreshing, by certain Wyoming legislators, when in Moe v. State[4], the Wyoming Supreme Court tried a different and better received tactic with the Wyoming Legislature; it simply suggested new legislation rather than legislating from the bench.   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 regards to the constitutionality of the “indecent liberties” statute.[5]  The passage of House Bill 104 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 improved communication between the Judicial and Legislative branches of government in Wyoming. 

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.  Justice Voigt described “indecent liberties” in his dissent in 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 Justice Voigt in his dissent and to fix the “indecent liberties” statute.  Justice Kite effectively addresses the Wyoming Legislature and states 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 goes as far as to provide the Wyoming Legislature with citations to statutes in Colorado, Montana, and Alaska that would potentially provide clarity.[7]

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.[9]  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.[10] 

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 3^rd degree sexual abuse of a minor statute.[11]  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.

1^st degree sexual abuse of a minor[12] 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. 

2^nd  degree sexual abuse of a minor[13] has the same three separate crimes as does 1^st degree sexual abuse of a minor with the exception that the element of “contact” is substituted for “intrusion.” 

2nd 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. 

3^rd  degree sexual abuse of a minor[14] continues with the line of statutory rape elements by substituting “contact” for “intrusion.”

3^rd  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 1^st and 2^nd  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 1^st and 2^nd  degree being whether there was intrusion or contact.  In 3^rd  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.  4^th  degree sexual abuse of a minor uses the same elements as 3^rd  degree sexual abuse of a minor in regard to “position of authority,” with the exception that “contact” is substituted for “intrusion.” 

3^rd and 4^th  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 3^rd and 4^th  degree again being the difference between intrusion and contact. 

Last, indecent liberties is included in 3^rd  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 1^st offenses.

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