The Legislature did not intend sexual behavior between children close in age not involving penetration, which it specifically exempted from the criminal statutes, to nonetheless be included within the crime of child endangerment. Our Supreme Court has told us to analyze ambiguous statutes in a criminal context in favor of the accused:
Like all matters that require interpretation of a statute, our goal of implementing the Legislature’s intent begins with the text of the statute. If the meaning of the text is clear and unambiguous on its face, we enforce that meaning. If the language admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature’s intent. When extrinsic sources cannot clarify the meaning of ambiguous language, we employ the canon of statutory construction that counsels courts to construe ambiguities in penal statutes in favor of defendant.
Although D.M. engaged in behavior that would generally be considered sexual conduct with another child, the sexual contact was exempted from criminal liability by a specific statute. The State argues we should determine that sexual penetration was proven despite the judge’s findings to the contrary. The judge found an absence of sexual penetration in a written opinion issued two weeks after the trial ended, concluding that Zane’s testimony was not sufficiently specific or persuasive on this issue. Three months later, when imposing a disposition, he described his failure to find penetration as a “humanitarian gesture.”
A common error that trial judges make in issuing their opinions is to make statements like this that are often intended to appease the alleged victims or police witnesses. While these statements are often made to soften the blow for the prosecution’s witnesses when their testimony is not credited, they provide the prosecution with bases to argue for reversal on appeal.