Opinion #6884

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6884

December 20, 1995

SCHOOLS AND SCHOOL DISTRICTS:

Meaning of the word "rape" as used in section 1311(2) of the School Code of 1976

The word "rape," as used in section 1311(2) of the School Code of 1976, means first- and third-degree criminal sexual conduct proscribed under MCL 750.520b; MSA 28.788(2), and MCL 750.520d; MSA 28.788(4).

Honorable Clyde LeTarte

State Representative

The Capitol

Lansing, MI

You have asked about the meaning of the word "rape" as used in section 1311(2) of the School Code of 1976, MCL 380.1311(2); MSA 15.41311(2), as last amended by 1994 PA 328.

The relevant portion of section 1311(2) states:

If a pupil possesses in a weapon free school zone a weapon that constitutes a dangerous weapon, or commits arson in the school building or on the school grounds, or rapes someone in the building or on school grounds, the school board, or the designee of the school board as described in subsection (1) on behalf of the school board, shall expel the pupil from the school district permanently.... [Emphasis added.]

Although section 1311(9) defines certain words used in section 1311, "rape" is not one of the words that is defined.

The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature. Jennings v Southwood, 446 Mich 125, 135; 521 NW2d 230 (1994). The provision mandating expulsion for "rape" was added to SB 966, which became 1994 PA 328, by a floor amendment offered by Representative Berman. 1994 Journal of the House 2482 (No. 64, September 21, 1994). The legislative history regarding the inclusion of "rape" in the mandatory expulsion statute provides no guidance as to the meaning of the term.

In Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994), the Michigan Supreme Court enunciated a rule of statutory construction that is applicable here:

For example, it is a well-established rule of statutory construction that the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Therefore, when the Legislature codifies a judicially defined requirement without defining it itself, a logical conclusion is that the Legislature intended to adopt the judiciary's interpretation of that requirement. [Citation omitted.]

In light of this well-settled rule of statutory construction, we turn to the pre-existing judicial definition of "rape" in Michigan. The criminal laws of this state were adopted with the common law as their foundation. People v McDonald, 409 Mich 110, 117; 293 NW2d 588 (1980). The former criminal statute proscribing "rape" was section 520 of 1931 PA 328; the "carnal knowledge" statute based on the common law definition of "rape." One of the essential elements of "rape" as that crime existed under the "carnal knowledge" statute was that there be penetration. People v McGillen # 1, 392 Mich 251, 269; 220 NW2d 677 (1974).

In 1974, the Legislature repealed the former "carnal knowledge" statute and replaced it with various degrees of criminal sexual conduct. See, 1974 PA 266; MCL 750.520a et seq; MSA 28.788(1) et seq. 1974 PA 266 was designed to broaden the scope of proscribed conduct and to address evidentiary problems that had arisen in prior rape prosecutions. See, People v Gibson, 71 Mich App 220, 222-223, n 3; 247 NW2d 357 (1976); Senate Legislative Analysis, SB 1207, July 18, 1974.

Although the former statute proscribing "rape" was repealed by 1974 PA 266, sections of the new criminal sexual conduct statute continue to punish conduct formerly known as "rape." In People v McDonald, supra, 409 Mich at 110, the defendant was found guilty, but mentally ill, of first-degree murder under that portion of the statute elevating murder committed in the perpetration or attempt to perpetrate "rape" to first-degree murder. When the Legislature repealed the "carnal knowledge" statute and replaced it with criminal sexual conduct, it did not amend the portion of the first-degree murder statute under which the defendant was convicted. The defendant argued that he could not be convicted of first-degree murder committed in the perpetration or attempt to perpetrate "rape" because the crime of "rape" no longer existed in Michigan.

The Supreme Court rejected the defendant's argument, concluding that the defendant was on notice of the definition of "rape" as it existed under the prior "carnal knowledge" statute. Id, at 120. In so concluding, the Supreme Court recognized that the crime of "rape" continued to be proscribed by statutory provisions prohibiting first- and third-degree criminal sexual conduct. As support for its holding, the Supreme Court noted that the Legislature had subsequently amended the relevant portion of the first-degree murder statute by substituting criminal sexual conduct in the first- and third-degree for "rape." Id, at 118-120 and n 7.

Under the rules of statutory construction set forth in Pulver v Dundee Cement Co, supra, 445 Mich at p 75, the Legislature is presumed to be aware that the Michigan Supreme Court had interpreted "rape" as conduct now proscribed as first- and third-degree criminal sexual conduct under MCL 750.520b; MSA 28.788(2), and MCL 750.520d; MSA 28.788(4). Thus, the logical conclusion is that when the Legislature used the term "rape" in section 1311(2) of the School Code of 1976, it adopted the judicial interpretation of that term as set forth in People v McDonald, supra.

It is my opinion, therefore, that the word "rape," as used in section 1311(2) of the School Code of 1976, means first- and third-degree criminal sexual conduct proscribed under MCL 750.520b; MSA 28.788(2), and MCL 750.520d; MSA 28.788(4).

Frank J. Kelley

Attorney General