Appeal from judgment of conviction for sexual assault and incest. Eighth Judicial District Court, Clark County; David B. Barker, Judge.
Philip J. Kohn, Public Defender, and P. David Westbrook, Deputy Public Defender, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Stephen B. Wolfson, District Attorney, Jonathan E. VanBoskerck, Chief Deputy District Attorney, and Ryan J. MacDonald, Deputy District Attorney, Clark County, for Respondent.
Pickering, J. We concur: Gibbons, C.J., Hardesty, J., Parraguirre, J., Douglas, J., Cherry, J., Saitta, J.
Delbert Roy Douglas fathered two children with his daughter, whom he forced to have sex with him when she was 12 and, again, after she turned 18. He was charged with and convicted of sexual assault and incest for both rapes. On appeal, Douglas challenges his incest convictions. He argues that incest requires mutual consent while sexual assault is, by definition, nonconsensual, making the two crimes mutually exclusive. We hold, as the majority of courts have held, that incest condemns sex between close relatives without regard to whether the intercourse was consensual.
Our review is de novo, State v. Lucero, 127 Nev.___,
___, 249 P.3d 1226, 1228 (2011), and begins with the text of Nevada's incest statute:
Persons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void who intermarry with each other or who commit fornication or adultery with each other shall be punished for a category A felony by imprisonment in the state prison . . . .
Obviously, NRS 201.180 omits any express mutual consent requirement. But Douglas parses the statute as punishing " [ p ] ersons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void . . . who commit fornication . . . with each other " and infers a mutual consent requirement from its key terms: persons, commit, fornication, and with each other. " Unlike sexual assault," Douglas argues, " incest is not a crime perpetrated by one person against another; it is the joint operation of two or more prohibited persons who, together, 'commit fornication.'" And " fornication," Douglas continues, means " 'consensual sexual intercourse between two persons not married to each other.'" Id. at 8 & n.2 (quoting Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/fornication (last visited, July 20, 2012)).
Nevada's prohibition on incest dates back to 1861. 1861 Laws of the Territory of Nevada, ch. 28, § 129, at 83. Though the penalty has changed over time, see 1979 Nev. Stat., ch. 655, § 43, at 1429; 1995 Nev. Stat., ch. 443, § 83, at 1198; 2005 Nev. Stat., ch. 507, § 31, at 2877, ...