State v. Richardson

COPELAND, Justice.

Defendant contends that the Court of Appeals misconstrued the definition of prostitution, as found in G.S. 14-203 and prohibited by G.S. 14-204, by including within that definition the sexual act of masturbation for hire. We agree with the defendant’s contention that the warrant charging defendant with prostitution should have been dismissed by the trial court for failure to state an offense under G.S. 14-204.

The definition of prostitution as found in G.S. 14-203 provides in part:

The term “prostitution” shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without hire. (Emphasis added.)

The statute, G.S. 14-203, unequivocally defines prostitution as an act of sexual intercourse, and nothing else. Sexual intercourse is defined as, “The actual contact of the sexual organs of a man and a woman, and an actual penetration into the body of the latter.” Ballentine’s Law Dictionary 1170 (3d ed. 1969). This definition is in accord with our holding in State v. Vinson, 287 N.C. 326 , 215 S.E. 2d 60 (1975), where Justice Huskins, in defining “sexual intercourse ”

for purposes of a rape case, stated, “It necessarily follows that the term ‘sexual intercourse’ encompasses actual penetration.

”

State v. Vinson, 287 at 342, 215 at 71 (emphasis added). If the legislature wishes to include within G.S. 14-204 other sexual *694 acts, such as cunnilingus, fellatio, masturbation, buggery or sodomy, it should do so with specificity since G.S. 14-204 is a criminal statute.

In its opinion the Court of Appeals relied on Gilchrist v. Hurley, 48 N.C. App. 433 , 269 S.E. 2d 646 (1980), disc. rev. denied, 301 N.C. 720 , 274 S.E. 2d 233 (1981) for the proposition that prostitution includes numerous forms of sexual activity for hire. Such reliance on Gilchrist is misplaced since Gilchrist concerned the construction of G.S. 19-1.2, a nuisance statute, and not a criminal statute. When the Court is asked to construe a criminal statute such as the one in the case sub judice, the law must be construed strictly in favor of the defendant. In re Banks, 295 N.C. 236 , 244 S.E. 2d 386 (1978);

State v. Ross, 272 N.C. 67 , 157 S.E. 2d 712 (1967);

State v. Brown, 264 N.C. 191 , 141 S.E. 2d 311 (1965).

As a result we are unable to construe G.S. 14-204 broadly enough so as to encompass the alleged acts of the defendant within the definition of prostitution. We therefore order that this case be remanded to the Court of Appeals for remand to Superior Court, Onslow County, for dismissal of the prostitution charge.

Reversed and remanded.