This is a proceeding wherein the defendant was charged in two separate counts with committing sodomy upon A, age 14, and B, age 16. He was also charged in a third count with a violation of section 483, Penal Law, impairing the morals of the younger complainant A. The case was tried without a jury.
The court finds that with regard to all three crimes charged, the evidence establishes that the complainants not only consented to but actually solicited the acts. The complainants clearly would be accomplices in fact if under the controlling statutes based on Sodomy, Penal Law, § 690 and Impairing, Penal Law, § 483. They can also be accomplices as a matter of law.
This is one of the issues before the court. If they are accomplices as a matter of law, their testimony must be corroborated under Code of Criminal Procedure, § 399. Another issue presented is the sufficiency of the corroborating evidence.
A recent change in the sodomy statute requires consideration.
With respect to certain sex crimes such as adultery, abduction, compulsory marriage, compulsory prostitution, rape and seduction, the legislature has by statute required other supporting evidence. It will be noted that under such statutes, the supporting evidence is required whether or not the complainant consents, viz., statutory rape, etc.
The court notes that the legislature has not required such other supporting evidence for the sex crimes of sodomy, incest, carnal abuse or impairing morals of certain children. With respect to these crimes, it does make a difference whether the complainant is a ‘victim’ or an ‘accomplice’, i. e., a consenting or willing participant because section 399 of the Code of Criminal Procedure requires that the testimony of an accomplice be ‘corroborated’.
The court now questions how to determine whether the complainant is a victim or accomplice.
Some states, such as California under West’s Ann.Penal Code, § 1111, have statutes which define an accomplice as one ‘who is liable to prosecution for the identical offense charged against the defendant on trial. The court notes that this state has no statutory definition of an accomplice. Penal law, section 2 defines as a principal one who aids, abets, etc. But the courts have uniformly held that the accomplices contemplated by section 399 of the Code of Criminal Procedure are those individuals concerned in the commission of the crime as ‘particeps criminis’ for which they can be indicted with the accused as principals as held in the case of People v. Pasquarello and the cases cited therein.
However, even in the absence of statutory definition of accomplice, the court observes that most often it is the legislature which actually determines who is and who is not an accomplice.
The legislature can do so by a specific declaration that certain participants in a crime are not accomplices. Thus, section 1308-a of the Penal law declares that the thief is not an accomplice to the receiver. It can do so by specific language of a penal statute. Thus by the specific wording of the abortion statute under Penal Law, § 80, the woman upon whose body the abortion is performed cannot be guilty of aiding and abetting, even if a willing participant. She may only be guilty of a violation of section 81 of the Penal law as held in People v. Blank. And, in the statutory rape section under Penal Law, § 2010, the legislature has declared that a female under the age of 18 is incapable of consenting to an act of sexual intercourse. Such a female cannot be an accomplice to the crime of statutory rape. By analogy, in People v Gibcon, the Court of Appeals has held that a female under the age of 18 is incapable of consenting to the crime of incest. By statutory declaration, she is made a ‘victim’ and not an ‘accomplice’.
To Be cont….
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