Vaidik, J.
Case Summary
D.H. impregnated his girlfriend’s fourteen-year-old daughter, S.R., who gave birth to a daughter of her own. D.H. pled guilty to sexual misconduct with a minor and received a lengthy prison sentence. S.R. then petitioned to terminate D.H.’s parental rights under Indiana Code section 31-35-3.5-3, which provides that if a child was conceived as a result of “an act of rape,” the victim-parent can seek to terminate the rights of the perpetrator-parent. The trial court granted the petition, interpreting the phrase “act of rape” broadly to extend beyond the rape statute and include any sexual intercourse between an adult and a person under sixteen.
What the parties and the trial court didn’t realize is that a different statute in another part of Title 31 defines “act of rape” as (1) “an act described in” the rape statute or (2) an act of child molesting (where the victim is under fourteen) involving deadly force, a deadly weapon, serious injury, or drugging. See Ind. Code § 31-9-2-0.9. Because the trial court didn’t consider whether D.H. committed an act described in the rape statute, we must reverse the termination order. But because the case wasn’t litigated or decided under the proper statutory framework, we remand the matter to the trial court for a new termination hearing focused on the controlling definition of “act of rape.”
….
As they did in the trial court, the parties debate the meaning of “act of rape” without mentioning the statute that defines the phrase. D.H. contends that if he had committed an act of rape, the State would have charged him with rape under Indiana Code section 35-42-4-1 rather than charging him with sexual misconduct with a minor under Indiana Code section 35-42-4-9. S.R. and the guardians respond that the phrase “act of rape” goes beyond the rape statute. They argue that sexual intercourse with a person under sixteen fits “the common meaning of rape,” Appellee’s Br. p. 8, because “[i]t has long been Indiana law that an individual under the age of sixteen (16) cannot give consent,” id. at 6 (citing Williams v. State, 383 N.E.2d 416, 417 (Ind. Ct. App. 1978)).
If we were just interpreting the language of the termination statute (Section 3135-3.5-3), we would probably agree with the appellees and affirm the termination order. The statute says “an act of rape” but doesn’t require a rape conviction and doesn’t incorporate or otherwise reference the rape statute, such as by stating “an act of rape (as defined in IC 35-42-4-1).” As such, we would be inclined to construe the phrase broadly, as the trial court did, to include an adult’s sexual intercourse with a person who is under sixteen and therefore incapable of meaningful consent.
But the termination statute doesn’t stand alone. Indiana Code section 31-9-2-0.9 limits the phrase “act of rape” to the acts described in the rape statute (and some acts described in the child-molesting statute, which is inapplicable here because S.R. wasn’t under fourteen). Under the rape statute, sexual intercourse is rape only when the victim (1) is compelled by force or the threat of force, (2) is unaware that the intercourse is occurring, (3) is so mentally disabled or deficient that consent cannot be given, or (4) attempts to physically, verbally, or by other visible conduct refuse the intercourse. Because the trial court found— reasonably, but incorrectly—that any sexual intercourse between an adult and a person under sixteen is an act of rape under the termination statute, it didn’t address whether D.H.’s intercourse with S.R. involved any of the circumstances listed in the rape statute. Without such a finding, we must reverse the termination order.
Under the circumstances, however, the best course of action is to hold a new termination hearing. The first time around, no one in the courtroom was aware of the statutory definition of “act of rape,” so the case was litigated and decided based on an incomplete and mistaken understanding of the relevant statutes. Therefore, we remand this matter to the trial court for a new termination hearing focused on the controlling definition.
We also ask the legislature to revisit this statutory scheme. Sexual intercourse between an adult and a child under sixteen is almost always a serious felony— either child molesting or sexual misconduct with a minor (there are limited exceptions identified in the statutes). See I.C. §§ 35-42-4-3(a), 35-42-4-9(a). But not all victims of these crimes who become pregnant can seek relief under the termination statute. As it exists now, an “act of rape” is limited to only those acts described in (1) the rape statute or (2) a section of the child-molesting statute describing the most aggravated acts of molestation (e.g., sexual intercourse where the under-fourteen victim is threatened with deadly force, seriously injured, or drugged).
Significantly, this means that teenage victims of sexual misconduct with a minor, and many victims of child molesting, cannot seek termination under Section 31-35-3.5-3 unless they can prove that the felony sex crimes committed against them are also covered by the rape statute. This allows for some troubling outcomes. For example, a fourteen-year-old girl who is physically forced to have sex with a forty-year-old man can seek termination, but a fourteen-year-old girl who silently endures the sex in paralyzing fear cannot. We encourage the legislature to consider expanding the statutes to include all acts of child molesting and sexual misconduct with a minor.
Reversed and remanded.
Bradford, J., and Brown, J., concur.