English is a funny thing.
Let me start by saying that I think I know what it means to be "18 or older." It means you're either age 18 or older. In short, that you've had your eighteenth birthday. We can all probably agree on that.
But what about when it's the reverse? I still think I generally know, but it's harder. Imagine that you can't do something if you are "age 18 or younger." Well, I think that means that if you're 18, or 17, or 16, etc., you can't do it. You've got to have had your nineteenth birthday.
But what if it's slightly different: What if a statute applies only if someone is "18 years of age or younger?" That might well mean the same thing. But it might potentially mean something slightly different. One might read such wording to mean that once you hit 18, you're free: in other words, that you're only exactly "18 years of age" on your birthday, and so the statute only applies if it's on that day or before then.
Context may thus matter a lot. At least when we're using conjunctive or disjunctive language.
Let's then talk about an actual case. This one. One in the California Supreme Court. What does it mean when a statute says that a defendant gets punished more severely if the victim is "a child who is ten years of age or younger?" If the kid's ten-and-a-half, does the statute apply?
The Califronia Supreme Court unanimously reverses the Court of Appeal and holds that, yeah, ten-and-a-half is ten years of age or younger. It adopts a very simple interpretation of the words. To phrase it differently than the court did (but equally accurately), the term "ten years of age or younger" is simply disjunctive. You can be ten or younger. We commonly call ten-and-a-half year olds "ten". Simple. End of story. Staute applies.
That version has a lot of truth to it. To be honest, when I read the words, that's what they mean to me too. If a ride at Disneyland says to need to be "ten yeas of age or younger" to ride it -- think, Teacups -- then I'd be pissed if they didn't let my ten-year old daughter (let's call her "Sierra") ride it. I'd think she was entitled to ride.
But I'm not sure that's entirely dispositive of the matter. Let's go into a little bit more detail.
Because, as I said, context matters.
The California Supreme Court understood that the statute was ambiguous, so looked at the legislative history. Several pieces of which said, essentially, that the victim had to be nine years old or younger. Exactly what the defendant said. But the California Supremes said that this language isn't dispositive, and that the context that matters instead was the fact that this was anti-molestation language and hence was probably intended broadly.
I agree with the former but not the latter.
I agree that the legislative history isn't conclusive. Yes, some people said the victim had to be nine or younger. But they could easily have been talking loosely. Staffers often aren't precise. Legislators often use shorthand. We shouldn't be overly distracted by what they say when we have a sense -- as I do here -- that they may be subject to these imperfections.
At the same time, I think the court here puts far too much weight on the anti-molestation context in which the statute was passed. Did I think the Legislature wanted to protect child molesters? Uh, no. Duh. But that doesn't necessarily mean they intended the most anti-defendant version of words that we can imagine. They might still have meant that a line be drawn in one place rather than another. The fact that they -- like the court -- doesn't have a soft spot for child molesters doesn't answer the question. Doesn't even necessarily shed much light on it.
So what context do I think might matter? One that the court never mentions. The fact that the number the Legislature chose was ten.
Why ten? Why are you punished more when the child is "ten" or younger? We're not talking about an age we're all used to -- sixteen for driving, eighteen for voting, twenty-one for drinking. Indeed, ten is not even the age we typically refer to when we talk about a kid hitting puberty or being a "kid". That's generally twelve -- the last age in which you're not a "teenager". If the Legislature said (as it does in many statutes) that you can't do X if you're "twelve years of age or younger," I find it very plausible to think that what they meant is that you should only be able to do it once you're a teenager.
So what's so special about ten? Easy. It's the first number with double digits.
The Legislature wanted to really slam child molesters who touched really small kids. Where should we draw the line? Thirteen? Twelve? Eleven? When is it really, really bad?
You can't answer that question precisely. So we use shorthand. And here's an easy one: It's really, really bad when the kid doesn't even have double digits in his age. If he's six. Eight. Nine. Wow. You get to spend forever in prison. Whereas if he's eleven or she's thirteen or whatever, sure, you get to spend forever in prison too, but not forever and a day.
So it seems plausible to me that in this context, that's what the Legislature meant by "age 10 or younger." What they really meant is that the statute doesn't apply after the victim has hit double digits. But the Legislature being the Legislature, they used imprecise language, and we're left to figure out what they meant. And what they might well have meant is to punish extra hard people who molest people younger than ten. Victims with single digit ages.
Am I certain that I'm right? Of course not. But it does explain the year they chose. Indeed, may well explains it better than any alternative explanation. Under the interpretation adopted by the court here, the Legislature essentially set the cutoff date at 11: lesser penalties once the victim has her eleventh birthday. That seems a weird age, huh? Eleven is not an age we usually choose. Or which we view as a "dividing line" in any meaningful way. Either in statutes or elsewhere.
So what should you do? One way to resolve ambiguities like this is to apply the rule of lenity. To resolve the interpretation in favor of the defendant. But get real. We're not going to do that when the beneficiary is a child molester. Or, truth be told, virtually any criminal defendant. So we almost never find this principle dispositive. And the California Supreme Court certainly isn't going to start doing otherwise here. And doesn't.
Let me reiterate for the nth time that molesting kids is bad. Let me also remind everyone that I have four kids of my own. At least three of whom are "age ten or younger" -- four, if you adopt the court's definition here. So I'm sympathetic to what the court's done here. In addition to the fact that, on first glance, I gotta admit that I thought they were probably right.
But I've thought more about it now. And the more I think, the less sure I am.
Sometimes first impressions lead one astray. I wonder if that's the case here.
