COMMONWEALTH vs. DAWUD RAHIM.

CORDY, J. A grand jury indicted the defendant on numerous charges, including rape and abuse of a child under the age of sixteen years, in connection with the alleged sexual abuse of his stepdaughter. Among those charges are six indictments charging incest in violation of G. L. c. 272, § 17 (incest statute). [Note 1] The defendant moved to dismiss the incest charges, arguing that,

Page 274

because he was neither the natural nor adoptive father of his stepdaughter, and had no "blood-kin" relationship with her, the necessary element of consanguinity under the incest statute was absent. A Superior Court judge, pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), reported the following question to the Appeals Court:

"Are G. L. c. 272, § 17, and G. L. c. 207, § 1 [the marriage prohibition statute], to be read together for all purposes, and especially with regard to determining the 'degree of consanguinity' for determination of culpability with regard to the crime of incest? See Commonwealth v. Smith, 431 Mass. 417, 422 (2000)."

The proceedings were stayed. We allowed the Commonwealth's application for direct appellate review. We conclude that "consanguinity" is a necessary element of the crime of incest, and that the incest statute makes criminal only relationships between persons related by blood or adoption, [Note 2] not other relationships prohibited by the marriage statute, G. L. c. 207, §§ 1 and 2.

1. The plain language of § 17. "[T]he primary source of insight into the intent of the Legislature is the language of the statute." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). "Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words." Gurley v. Commonwealth, 363 Mass. 595, 598

Page 275

(1973). Accord, e.g., ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 603 (2000); Weitzel v. Travelers Ins. Cos., 417 Mass. 149, 153 (1994); Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 537 (1992). In particular, absent clear indication to the contrary, statutory language is to be given its "ordinary lexical meaning." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Randall's Case, 331 Mass. 383, 385 (1954).

Section 17 criminalizes sexual intercourse between "[p]ersons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void." The relationships in which marriages are prohibited or declared by law to be incestuous are listed in the marriage statute. Some of the prohibited relationships are relationships by blood, [Note 3] while others are relationships by marriage. [Note 4]

The meaning of the term "consanguinity" is uncontroverted: it is defined as a "relationship by blood." 2 C. Torcia, Wharton's Criminal Law § 242 (15th ed. 1994). See 3 Oxford English Dictionary 753 (2d ed. 1989) ("condition of being of the same blood; relationship by descent from a common ancestor; blood-relationship [Opposed to affinity, i.e., relationship by marriage]"); Black's Law Dictionary 299 (7th ed. 1999) ("relationship of persons of the same blood or origin"). The meaning of "consanguinity" is distinguished from "affinity:" consanguinity is a blood relationship, while affinity is a nonblood

Page 276

relationship acquired through marriage. See 3 Oxford English Dictionary, supra. [Note 5]

There can be no doubt that the Legislature is and has been fully acquainted with the difference between relationships defined by consanguinity and those defined by affinity. The term "consanguinity" appears throughout the General Laws. In almost every context, the Legislature uses "consanguinity" in conjunction with "affinity," making it readily apparent that the Legislature views the terms as distinct and mutually exclusive. See G. L. c. 274, § 4 (providing defense to prosecution for accessory after fact for defendant who is "by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender"); G. L. c. 19D, § 1 (defining assisted living residence as location that, among other things, provides assistance to "three or more adult residents who are not related by consanguinity or affinity to their care provider"); G. L. c. 40D, § 1 (u) (defining "[c]ontinuing [c]are [f]acility," for purpose of urban development, as "facility at which there is furnished to individuals, other than an individual related by consanguinity or affinity to the person furnishing such care [enumerated services]"); G. L. c. 55, § 18 (h) (15) (ii) (permitting candidate for public office to dispose of residual campaign funds by donation to charitable organization or scholarship fund, provided that neither candidate nor any official of candidate's political committee "be related by consanguinity or affinity to any trustee, officer, principal or beneficiary of said entity"); G. L. c. 93, § 76 (a) (defining "[c]ontinuing care" for purpose of determining whether entity is nursing home as

Page 277

"furnishing to an individual, other than an individual related by consanguinity or affinity to the person furnishing such care, of [enumerated services]"); G. L. c. 268B, § 5 (g) (3) (permitting exception to rule that high-level public officials must disclose names of their creditors "if the creditor is a relative of the reporting person within the third degree of consanguinity or affinity").

In other contexts, the Legislature uses "consanguinity" without "affinity," but nonetheless includes language that specifically refers to relationships by marriage separately. See, e.g., G. L. c. 3, § 43 (requiring executive and legislative agents to submit statements of expenditures, "except that the executive or legislative agent shall not be required to report such expenditures . . . made for or on behalf of . . . a relative within the third degree of consanguinity of the executive or legislative agent or of his spouse or the spouse of any such relative . . . an executive or legislative agent shall not be prohibited from offering or giving to a public official or public employee who is a member of his immediate family or a relative within the third degree of consanguinity or of such agent's spouse or the spouse of any such relative any such gift or meal, beverage or other item to be consumed"); G. L. c. 268B, § 1 (g) (excluding from definition of "gift" in context of financial disclosures by public employees gifts received from "relative within the third degree of consanguinity of the reporting person or of the reporting person's spouse or from the spouse of any such relative"). [Note 6] In sum, in every other statute, the Legislature supplements its use of "consanguinity" with other language encompassing relationships by marriage, and plainly understands "consanguinity" as relationship by blood alone.

By its plain language, therefore, G. L. c. 272, § 17, selects for criminal punishment those relationships listed in the marriage statute, that are relationships of consanguinity (blood), leaving out by its silence relationships of affinity (marriage). It

Page 278

is the limiting language of § 17 itself -- "within degrees of consanguinity" -- that defines and limits the set of G. L. c. 207 relationships to which § 17 applies.

To interpret § 17 to include both relationships by consanguinity and by affinity would give no meaning to the phrase "within degrees of consanguinity." See Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ( "None of the words of a statute is to be regarded as superfluous . . ."). Had the Legislature intended § 17 to criminalize marriage or sexual conduct within all of the relationships listed in §§ 1 and 2, it could easily have avoided the term "consanguinity" (i.e., "[p]ersons between whom marriages would be declared by law to be incestuous and void . . ."), or it could have used the phrase "consanguinity or affinity" that it has employed in other contexts. The Legislature's choice to include only "consanguinity" cannot be disregarded.

While a court must normally follow the plain language of a statute, it need not adhere strictly to the statutory words if to do so would lead to an absurd result or contravene the clear intent of the Legislature. See Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79, 82 (1999). Far from creating an "absurd" result, interpreting the Massachusetts incest statute in accord with the plain meaning of its words would place Massachusetts in the mainstream of the law nationally, and there is no basis from which to conclude that this would contravene the clear intent of the Legislature.

Of the forty-nine States other than Massachusetts, twenty do not punish any form of affinal incest. [Note 7] Additionally, seven states punish affinal incest only if the victim is a child or if the sexual

Page 279

contact was nonconsensual. [Note 8] Massachusetts is therefore not alone in providing no criminal punishment for consensual adult sexual contact within affinal relationships. [Note 9] In addition, the Massachusetts statute would by no means be anomalous in barring more classes of relationships from civil marriage than it punishes under its criminal incest statute. It is common for other jurisdictions to have criminal incest provisions that are less restrictive than their counterpart civil marriage restrictions. [Note 10]

Page 280

In addition, the criminalization of affinity relationships as incestuous is explicitly rejected by the Model Penal Code. [Note 11] The Code criminalizes marriage, cohabitation, or sexual intercourse with "an ancestor or descendant, a brother or sister of the whole or half blood [or an uncle, aunt, nephew or niece of the whole blood]," Model Penal Code and Commentaries § 230.2 (1980), [Note 12] and it adds, "The relationships referred to herein include blood relationships without regard to legitimacy, and relationship of parent and child by adoption." Id. The commentaries to the Model Penal Code make clear that the drafters carefully considered and rejected affinity-based incest (with the exception of the adoptive parent-child relationship):

"[T]he relationship between stepparent and stepchild may achieve a decidedly different character. Particularly when the natural parent remarries after the child has reached maturity, the stepparent may not be a parent in any real sense. In such cases, there may develop a sexual

Page 281

relationship that is neither illicit nor exploitative, as, for example, where a grown man marries his stepmother, who may be his own age, after his father's death. . . . Because there are situations where persons related by affinity should be permitted to marry, it therefore follows that they should not be included within the incest prohibition."

Id. at § 230.2 comment 3(b), at 413-415. [Note 13]

The Massachusetts Legislature could well have considered the same policy concerns as the drafters of the Model Penal Code did decades later and reached an identical conclusion, which is reflected in a plain reading of the statutory language.

2. Legislative history. "When the use of the ordinary meaning of a term yields a workable result, there is no need to resort to extrinsic aids such as legislative history." Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984). Accord Leary v. Contributory Retirement Appeal Bd., 421 Mass. 344, 345-346 (1995); State Bd. of Retirement v. Boston Retirement Bd., 391 Mass. 92, 94 (1984). Nonetheless, even assuming that there is room within the word "consanguinity" for an interpretation including relationships by affinity, the history of amendments to the incest prohibition suggests that the Legislature understood "consanguinity" as relationship by blood.

The Province Laws of 1695-1696 was the first codification of the incest prohibition in Colonial Massachusetts. [Note 14] Specifically, St. 1695-1696, c. 2, § 1, enumerated a list of degrees, including both relationships by blood and relationship by marriage, within

Page 282

which marriage was prohibited, [Note 15] and § 2 provided for punishment for men or women who marry or "carnally know each other, being within any of the degrees before recited in this act." [Note 16] Unambiguously, § 2 reached all of the relationships listed in § 1, those of both consanguinity and affinity.

Shortly after independence, the General Court enacted "An Act for regulating marriage and divorce," St. 1785, c. 69. That act similarly set out a list of relationships (some by blood, others by marriage) for which marriage was prohibited, St. 1785, c. 69, § 1, and required that persons engaged in prohibited marriages must divorce. Once "divorced for the cause either of affinity or consanguinity," they were subject to criminal penalties if they lived together. Id. at § 6. This act marks the first appearance

Page 283

of the term "consanguinity" in the incest statute, and, by pairing its use with "affinity," the General Court clearly recognized that there was a difference between them and understood that the list of prohibited relationships contained both types.

It was the next change to the incest statute that created what is essentially the modern criminal prohibition. The Revised Statutes of 1836 included a list of prohibited marriages in the chapter on marriage, [Note 17] and, in R.S. (1836), c. 130, § 13, stated:

"All persons, being within the degrees of consanguinity, within which marriages are prohibited, or declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, shall be punished by imprisonment in the state prison, not more than twenty years, or in the county jail, not more than three years." [Note 18]

This section has undergone no relevant subsequent modification.

Why the Legislature inserted "consanguinity" and chose not to add "affinity" to R.S. (1836), c. 130, § 13, is not specifically documented in its legislative history. Nonetheless, by consulting "sources presumably known to the statute's enactors," including dictionary definitions from that time, Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), we can be reasonably certain that it was not because of a misunderstanding about the distinctly different relationships they encompassed. Noah Webster's 1828 dictionary defines "consanguinity" in sharp contrast with affinity:

Page 284

"The relation of persons by blood; the relation or connection of person descended from the same stock or common ancestor, in distinction from affinity or relation by marriage. It is lineal or collateral."

1 An American Dictionary of the English Language 46 (1st ed. 1828). Thus the only existing history concerning the insertion of "consanguinity" into the criminal prohibition on incest also supports limiting the prohibited relationships to relationships by blood. [Note 19]

3. Our dictum in Commonwealth v. Smith. In Commonwealth v. Smith, 431 Mass. 417 (2000), we stated that the prohibitions of § 17 extend to "certain affinal kin as well as stepparents." This statement is clearly dictum, and we give it little weight. We have long held that we are not bound by "language which was unnecessary" in an earlier decision "and which passed upon an issue not really presented." Old Colony Trust Co. v. Commissioner of Corps. & Taxation, 346 Mass. 667, 676 (1964).

Chief Justice John Marshall explained the primary reason for the dicta-holding distinction in 1821:

"The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821). When a court decides an issue that has not been argued by any party, it makes its decision without the benefit of the vigorous advocacy on which the adversary process relies. See Penson v. Ohio, 488 U.S. 75, 84 (1988), quoting Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975) ("The paramount importance of vigorous representation

Page 285

follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth -- as well as fairness -- is 'best discovered by powerful statements on both sides of the question' "). The question whether § 17 extended to affinal relationships was not briefed or argued by either party in the Smith case; and neither party had an interest in the outcome of that question, because the defendant was accused of incest based on conduct with his biological daughter, Commonwealth v. Smith, supra at 417. Because the Smith court did not have the benefit of any advocacy concerning whether § 17 reached affinal relationships, its dictum on the subject was almost certainly incompletely investigated. [Note 20]

In Smith, the defendant was charged with having sexual conduct, but not penile-vaginal sexual intercourse, with his daughter. Commonwealth v. Smith, supra at 418. The defendant argued that he could not be prosecuted under § 17 because, at the time, it criminalized only "sexual intercourse," not other sexual activities. Id. This argument was based in part on his contention that the incest prohibition was designed to prevent genetic abnormalities, and the prohibition did not therefore extend to types of sexual contact that could not lead to pregnancy. Id. at 421. In rejecting this argument, we stated, without analysis or explanation, that the prohibitions in § 17 extended to "affinal" relationships, thus indicating that the purpose of the incest prohibition is broader than simply eugenics. Id. at 421-422. Ultimately, however, we concluded that no matter what the purpose of the statute, its language did not extend to prohibit sexual activities other than penile-vaginal intercourse. Id. at 425. Plainly, the determination that the

Page 286

language of § 17 did not extend beyond penile-vaginal intercourse rendered the statement in Smith "language which was unnecessary" to the outcome of the case. [Note 21]

In addition, Smith did not even address other language (also dicta) in previous decisions of this court and the Appeals Court suggesting that consanguinity -- meaning a blood relationship -- is a necessary element of incest. In Commonwealth v. Templeman, 376 Mass. 533 (1978), a case, like this one, involving allegations that the defendant had engaged in sexual intercourse with his stepdaughter, we noted that the "charge of incest was the subject of a nolle prosequi because the necessary element of consanguinity was absent." Id. at 538. Accord Commonwealth v. Doe, 8 Mass. App. Ct. 297, 298-299 n.2 (1979), quoting Commonwealth v. Haywood, 247 Mass. 16, 20 (1923) (noting "that courts in which the question has arisen generally construe statutes defining incest to require a blood relationship [and] it has been held that an 'essential element' of incest is 'consanguinity.' "

4. Conclusion. This is no doubt a difficult case in the sense that construing the statute in accord with the plain meaning of its words will result in the dismissal of six indictments alleging that the defendant committed incest by having sexual intercourse with his stepdaughter when she was fifteen and sixteen years old. [Note 22] But the underlying conduct alleged is violative of a number of other criminal statutes under which the defendant is also charged. While the idea that this form of "incest" may not be criminal may be repugnant to many, [Note 23] "the words of [a] statute cannot be stretched beyond their fair meaning in order to

Page 287

relieve against what may appear to be a hard case." Grove Hall Sav. Bank v. Dedham, 284 Mass. 92, 96 (1933). The interpretation that the Commonwealth urges on us sweeps up and criminalizes not only the repugnant conduct alleged in this case, but a wide assortment of relationships between consenting adults. [Note 24] The reported question is answered as explicated above. We leave it to the Legislature to expand the incest prohibition if it so chooses.

GREANEY, J. (dissenting, with whom Marshall, C.J., and Spina, J., join). The court reasons that the term "consanguinity," G. L. c. 272, § 17 (incest statute), cannot be read together with G. L. c. 207, §§ 1 and 2 (marriage prohibition statutes), with the startling result that the defendant cannot be prosecuted for having sexual intercourse with his stepdaughter. Despite the self-definition in the incest statute by means of express reference to, and incorporation of, the marriage prohibition statutes, the court strives to examine a plethora of sources to support its conclusion. The court's analysis is faulty, both in law and policy, for the reasons now described that persuade me that the defendant's sexual intercourse with his stepdaughter can be prosecuted as incest.

1. It is self-evident, as mentioned above, that the incest statute creates the definition of the crime within its own terms by expressly referring to, and incorporating, the marriage prohibition statutes. This alone should end the inquiry. But any doubt on the matter is settled by the following.

(a) In Commonwealth v. Smith, 431 Mass. 417 (2000), we concluded that the words "sexual intercourse" in the incest statute were limited to penile-vaginal penetration but did not cover unnatural sexual intercourse. In construing the statute, we stated that " '[p]ersons within the degrees of consanguinity' to whom the [incest] statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but

Page 288

include also certain affinal kin as well as stepparents." Id. at 422. We carefully explained why this is, and should be, so:

"The Legislature's purpose in criminalizing incestuous conduct must thus extend beyond the prevention of genetic defects, as this goal would clearly not be advanced by criminalizing marriage itself, without more, between blood relations, and still less by prohibiting coitus between affinal kin who do not share a common bloodline. See Model Penal Code and Commentaries § 230.2 comment 2(b), at 403; comment 3(b), at 412-413 (1980). Indeed, the scope of the incest statute, as it relates to both conduct and persons, strongly suggests that its framers valued and sought to promote the sanctity and integrity of familial relationships, as well as to protect children within the family from sexual impositions by their elders. See, e.g., id. at § 230.2, comment 2(c)-(e), at 405-407, and authorities cited; Commonwealth v. Fouse, 417 Pa. Super. 534, 538 (1992)."

Id.

Two years after the Smith decision, the Legislature rewrote the incest statute to broaden the sexual conduct prohibited to include unnatural sexual intercourse. See St. 2002, c. 13. The amendment was in direct response to the Smith decision. No change was made in the definition of incest contained in the statute. It is obvious from this that the Legislature accepted the definition stated in the Smith case, and expressed agreement with the language therein explaining the purpose of the statute. Far from being dicta, the quoted language is a critical part of the court's analysis and is to be accepted for its substantive content.

(b)(i) The court refers to the legislative history of the incest statute in an effort to support its conclusion. Ante at 281-284. But, ultimately, the court concedes, as it must, that there is nothing there because the Legislature's reason for not inserting the word "affinity" in R.S. (1836), c. 130, § 13, is unknown. Ante at 283-284. It can be said, from the language of that statute, that doing so was unnecessary in light of the statute's language, applying to "persons, being within the degrees of consanguinity, within which marriages are prohibited," and to "persons" whose marriages otherwise are "declared by law to be incestuous and void." R.S. (1836), c. 130, § 13. Further, the court

Page 289

completely ignores the historical character of the statute, see Commonwealth v. Ashey, 248 Mass. 259, 260 (1924), which ultimately enforced "the Levitical decrees," that applied the prohibition against incest to relationships of affinity. See 2 C. Torcia, Wharton's Criminal Law § 242 (15th ed. 1994) (explaining that doctrine of affinity grew out of canonical maxim that husband and wife are one); Metteer, Some "Incest" is Harmless Incest: Determining the Fundamental Right to Marry of Adults Related by Affinity Without Resorting to State Incest Statutes, 10 Kan. J.L. & Pub. Pol'y 262, 273 (2000) (explaining that incest prohibition under law of Leviticus extended to relationships by affinity).

(ii) The court also cites to various statutes to argue that the Legislature views the terms "consanguinity" and "affinity" as distinct. Ante at 276-277. Thus, the court reasons that, by employing the term "consanguinity" in the incest statute, the Legislature intended to limit the statute's reach to relationships of consanguinity only. Ante at 277-278. The use of the terms "consanguinity" and "affinity" in other statutes does not resolve the present issue concerning the interplay of the specific statutes with which we are concerned. If the Legislature had intended to limit the incest statute's reach only to relationships of consanguinity, it could have done so by leaving out any reference to the marriage prohibition statutes, instead of choosing, as it did, to supplement the incest statute by expressly incorporating the marriage prohibition statutes into that statute's reach.

(iii) The court's references to the laws of other States shed no light on the answer to the reported question. The main point, of course, is what our statute actually does, but it is worth noting that Massachusetts is by no means alone in punishing affinal incest because of the crime's destructive impact on the familial relationship. Twenty-eight States punish affinal sexual intercourse or sexual conduct of some kind. [Note Dissent-1]

(c) The court places great emphasis on the Model Penal Code,

Page 290

which does not make affinal incest criminal. We have not adopted the Model Penal Code, although from time to time, we express agreement with principles expressed therein. That is precisely what was done in the Smith case, where the Code was cited as persuasive in stating that "sexual relations between stepparent and stepchild may have the same disorganizing impact on the family unit and the same destructive effect on the growth of the child's personality as would incest between natural parent and child." Model Penal Code and Commentaries § 230.2 comment 3(b), at 412-413 (1980). Indeed, as the Code candidly recognizes, "[t]here are valid reasons for prohibiting sexual relationships between stepparent and stepchild." Id. at 412.

2. The court's authority for its conclusions does not withstand rigorous examination, and it is wrong to use that authority to declare an act of the Legislature futile and meaningless in significant part. In the last analysis, the text of the incest statute, combined with the Smith decision, leaves no room to doubt the statute's purpose and application. [Note Dissent-2] The court leaves us with a situation where this defendant will avoid prosecution for incest, and (unless the statute is changed) a stepfather can have consensual sexual intercourse with his sixteen year old stepdaughter without fear of criminal sanction. (But, he will not be able to marry her.) As a result of the court's decision, we are left with an unfortunate state of affairs that frustrates legislative intent and undermines the value and stability of the family as the core unit of society. I dissent.