For Publication 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
LLOYD S. WILKINSON 
) 
S.Ct. Crim. No. 2017-0018 
Appellant/Defendant 
) 
Re: Super. Ct. Crim. No. 062/2015 (STT) 
) 
v 
) 
) 
PEOPLE OF THE VIRGIN ISLANDS 
) 
Appellee/Plaintiff. 
) 
) 
On Appeal from the Superior Court of the Virgin Islands 
Division of St. Thomas & St. John 
Superior Court Judge: Hon. Kathleen Mackay 
Argued: July 9, 2019 
Filed: January 28, 2025 
Cite as 2025 VI 4 
BEFORE 
RHYS S. HODGE, Chief Justice, MARIA M. CABRET, Associate Justice; and 
IVE ARLINGTON SWAN, Associate Justice 
APPEARANCES 
Amelia B. Joseph, Esq 
Territorial Public Defender’s Office 
St. Croix, U.S.V.I 
Attorney for Appellant, 
Su-Layne Walker, Esq. (Argued) 
Ian S. 
A. Clement, Esq 
Assistant Attorney General 
St. Thomas, U.S.V.I 
Attorneys for Appellee 
OPINION OF THE COURT 
CABRET, Associate Justice 
{jl 
Appellant Lloyd S. Wilkinson (“Wilkinson”) appeals his sentence for first degree unlawful 
sexual contact in violation of Title 14 V.LC. 
§ 1708(a)(1), arguing that, following our decision in
Wilkinson vy. People 
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Titre 
v. 
People, 
70 V.1. 
797 (V.I. 
2019), his conviction on this charge must be vacated 
in 
accordance with the requirements of 14 V.I.C. 
§ 104 and the Double Jeopardy Clause of the Fifth 
Amendment of the United States Constitution. Additionally, Wilkinson appeals his conviction for 
first degree rape in violation of 14 V.I.C. §1701(a)(2), arguing that § 1701 
is unconstitutionally 
underinclusive. Specifically, he contends that § 1701 violates his Fourteenth Amendment right to 
equal protection under the law because subsection (c) of the statute creates a marital exemption 
from the crime of first degree rape that unreasonably and arbitrarily subjects him to punishment 
for his conduct, while others who engage in the same conduct prohibited by the statute are exempt 
from punishment merely because they are married to the victim. For the reasons that follow, we 
vacate Wilkinson’s conviction for first degree unlawful sexual contact and remand this matter to 
the Superior Court for resentencing. Additionally, although we agree with Wilkinson that the 
marital exemption provided in the first degree rape statute violates the equal protection clause of 
the Fourteenth Amendment, we hold that the appropriate remedy is to strike subsection (c) from 
the statute and affirm his conviction for first degree rape under the remaining subsections of § 
1701 
I. 
FACTUAL AND PROCEDURAL BACKGROUND 
q2 
Following a jury trial on October 17, 2016, Wilkinson was found guilty of first degree rape 
in violation of 14 V.ILC. 
§ 1701(a)(2), 
first degree assault in violation of 14 V.I.C. 
§ 295(3), and 
first degree unlawful sexual contact in violation of 14 V.I.C. 
§ 1708(a){1), for the rape and assault 
of C.D. 
on the morning of February 
11, 2015.! The Superior Court, in its February 
2, 
2017 
' We note that both the February 24, 2015 information and February 2, 2017 judgment and commitment in this case 
both refer to §§ 1701(2) and 1708(1), rather than to §§ 1701(a)(2) and 1708(a)(1). 
In 2013, 
14 V.LC. 
§ 1701 and 14 
V.LC § 1708 were amended to include the existing numbered paragraphs within the statutes’ new subsection 
“(a).’ 
Act No. 7517, § 1(c)(3) (Reg. 
Sess. 2013). Therefore, for clarity and simplicity, throughout this opinion we refer to 
the statutes by their alphanumerical subsections as they appear in the current version of the Virgin Islands Code
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judgment and commitment, sentenced Wilkinson to a period of thirty years’ incarceration on his 
conviction for first degree rape and to a period of five years’ incarceration on his conviction for 
first degree assault, to be served consecutively. The court further sentenced Wilkinson to a period 
of five years’ incarceration on his conviction for first degree unlawful sexual contact, but stayed 
imposition of the sentence. Wilkinson timely filed a notice of appeal 
II. 
JURISDICTION AND STANDARD OF REVIEW 
q3 
We have jurisdiction over this criminal appeal pursuant to Title 4, Section 32(a) of the 
Virgin Islands Code, which provides that “[t]he Supreme Court shall have jurisdiction over all 
appeals arising from final judgments, final decrees or final orders of the Superior Court, or as 
otherwise provided by law.” Because the Superior Court’s February 
2, 2017, judgment and 
commitment adjudicates all charges, it is a final order within the meaning of 4 V.ILC. 
§ 32(a) 
Williams 
v. 
People, 58 V.1. 341, 347 (V.1. 2013). We therefore have jurisdiction over this appeal 
Although we generally exercise plenary review over questions of law, including constitutional 
questions, where an appellant fails to raise a constitutional issue before the Superior Court, our 
review is limited to plain error. Celestine v. People, 
73 V.1. 
500, 505 (V.I. 2020) (citing Carty v 
People, 56 V.1. 345, 354 (V.L 2012)) 
Il. 
DISCUSSION 
94 
On appeal, Wilkinson argues—and the People concede—that pursuant to our decision in 
Titre, he is entitled to resentencing to vacate his conviction for first degree unlawful sexual contact 
Wilkinson also contends that 14 V.I.C. 
§ 1701 is unconstitutionally underinclusive and therefore, 
that the Superior Court erred in convicting him of first degree rape under this statute. Specifically, 
he argues that the marital exemption provided in subsection (c) of § 1701 violates his right to equal 
protection of the law under the Fourteenth Amendment of the Constitution of the United States. In
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response, the People contend that § 1701{c) does not constitute a martial exemption, but concede 
that if it does, then § 1701 would violate the Equal Protection Clause.” Both parties also agree that 
if we determine that the first degree rape statute is unconstitutional, the appropriate remedy is to 
strike subsection (c) from the statute and uphold the remaining, constitutionally valid provisions 
of § 1701. We address each argument in turn 
A. 
Resentencing in Light of Titre v. People 
5 
The Superior Court’s February 2, 2017, judgment and commitment convicted Wilkinson 
of first degree rape, first degree assault, and first degree unlawful sexual contact. The trial court 
imposed sentence for the rape and assault charges while staying execution of Wilkinson’s sentence 
for unlawful sexual contact in accordance with the law prevailing at the time, as detailed in our 
previous decision in Williams v. People, 56 V.1. 821, 834 n.9 (V.I. 2012) (“[T]he proper procedure 
is to sentence the defendant for one offense and stay the imposition of any punishment for all the 
remaining offenses which arose out of the same act or indivisible course of conduct.”). However, 
during the pendency of this appeal, we decided Titre, overruling the previous “merger-and-stay” 
approach outlined in Williams, 
56 V.1. 
at 834 n.9, and concluding that the better approach is to 
vacate any lesser convictions that would implicate 14 V.I.C. 
§ 104 or the double jeopardy clause 
of the Fifth Amendment to the Constitution of the United States. 
Titre, 
70 V.I. 
at 808-09 
Additionally, as we have previously explained, the rule announced in Titre applies retroactively to 
> Although the briefs of the parties on appeal frame the issue in terms of whether § 1701(c) violates the Equal 
Protection Clause, this is not entirely accurate. Subsection (c) of § 1701, 
standing alone, clearly cannot violate the 
Equal Protection Clause, because subsection (c), read in isolation from the preceding subsections, neither proscribes 
any conduct nor provides for any form of punishment. Indeed, without subsections (a) and (b), subsection (c} would 
be meaningless and without legal effect, purporting to provide an affirmative defense to a nonexistent crime. More 
precisely then, the issue is whether § 1701, as a whole, violates the Equal Protection Clause as a result of the inclusion 
of the marital exemption provided in subsection (c) of the statute
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all pending cases, including this appeal. 
Celestine, 
73 V.I. 
at 511. 
Accordingly, we remand this 
matter to the Superior Court for resentencing in accordance with our decision in Titre 
B. 
Marital Exemption for First Degree Rape 
{6 
Wilkinson argues on appeal that 14 V.I.C. 
§ 1701(c) creates a marital exemption’ to the 
crime of first degree rape that violates his rights under the equal protection clause of the Fourteenth 
Amendment because he is subject to punishment for his conduct “while others ... who engage in 
the same conduct escape punishment merely because they are married to the victim,” 
despite the 
lack of any rational basis for distinguishing between these two groups. (Appellant’s Br. at 13.) The 
People assert that § 1701(c) does not constitute a marital exemption to the rape statute and therefore 
does not violate the equal protection clause. Thus, our first task is to ascertain the meaning and 
effect of § 1701(c) 
q7 
Section 1701(a) of title 14 codifies the elements of the crime of rape in the first degree, 
including § 1701(a)(2)—the subsection under which Wilkinson was convicted—which provides 
“Whoever perpetrates an act of sexual intercourse or sodomy with a person...when the person's 
resistance is forcibly overcome... 
is guilty of rape in the first degree and shall be imprisoned not 
less than 10 years nor more than 30 years 
....” In turn, § 1701(c) provides that “[s]pousal consent 
shall be an affirmative defense 
in the event the persons are legally married pursuant to the 
provisions of title 16, chapter 
1 of the Virgin Islands Code.” 
48 
Our interpretation of any statute begins with the plain and ordinary meaning of the statutory 
language. 
Thomas 
v. 
People, 
69 
V.I. 
913, 
923 
(V.I. 
2018). 
“If the statutory language 
is 
3 The term “marital exemption” 
is used in this context, as 
it has often been used by jurists and legal scholars, 
to 
describe a statutory provision that exempts married persons from punishment for raping or sexually assaulting their 
spouses. 
ie 701(b) provides for heightened punishment of repeat offenders and is not relevant to the issues raised in
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unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed.” 
In re L.O.F., 62 V.1. 
665, 661 (V.I. 
2015). However, 
“[t]echnical words and phrases and such 
others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and 
understood according to their peculiar and appropriate meaning.” Willis 
v. People, 71 
V.1. 
789 
797 (V.I. 2019) (quoting Thomas, 69 V.I. 
at 923). 
In analyzing a statute, 
“we must give effect to 
every provision, making sure to avoid interpreting any provision in a manner that would render 
it—or another provision—wholly superfluous and without an independent meaning or function of 
its own.” 
Thomas, 69 V.I, 
at 924 (internal quotation marks omitted). Additionally, even “where a 
statutory scheme is plain and internally consistent, 
no statute should be read literally if such a 
reading is contrary to its objective and this Court must consider whether applying the statute's 
literal language leads to absurd consequences or is otherwise inconsistent with the Legislature's 
intent.” 
Heyliger v. People, 66 V.1. 
340, 350 (V.I. 2017) 
49 
Here, the People assert, in somewhat conclusory fashion, that the relevant language 
“spousal consent shall be an affirmative defense...”-— 
does not create a marital exemption to the 
rape statute. The People concede that the language of § 1701(c) “may not be ideal,” 
but insist that 
it cannot constitute 
a marital exemption because the synopsis of the legislative act adding 
subsection (c) describes the act as “adding protection for spouses, men and women, who are the 
victims of actions that constitute rape or unlawful sexual contact in aggravated domestic violence 
instances.” Act No. 7517, preamble. However, the descriptive synopsis or preamble included in a 
legislative bill, much like the titles and headings of the statute itself, while potentially probative of 
the legislature’s intent, is not a part of the statute and therefore does not carry the force of law. See 
1 V.LC. 
§ 45(a)(2)-(3) (“The following matter does not constitute part of the law ... the descriptive 
headings or catchlines, other than the section numbers contained therein, immediately preceding
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the texts of the individual sections of this Code; [and] any descriptive headings or catchlines 
immediately preceding the texts of any subsections or paragraphs of sections of this Code.”); Den 
v. Urison, 
2 N.J.L. 212, 219-20 (1807) (observing that the 
“preamble cannot restrain or control” 
the “expressed intentions of the [l]egislature” as indicated by the words of an Act that are contained 
in one or more of its enactment clauses,” but that the preamble may be consulted to gain insight 
where the intention of the legislature, based on the language appearing in an enactment clause, is 
equivocal); Jn re Allen, 
1 V.I. 
212, 227-28 (D.V.I. 
1929) (observing that 
“[w]here a statute is of 
doubtful meaning and susceptible upon its face of two constructions the court may look into prior 
and contemporaneous [legislative] acts, the reasons which induced the act 
in question, the 
mischiefs intended to be remedied [by it], the extraneous circumstances, and the purpose intended 
to 
be accomplished by 
it, 
to determine 
its proper construction,” but also 
that “where the 
[legislative] act is clear upon its face, and when standing alone it is fairly susceptible of but one 
construction, that construction must be given it,” and further emphasizing that “reasons for and the 
significant circumstances leading up to the enactment may be noticed in confirmation of the 
meaning conveyed by the words used” in it).° 
q10 
Although the People fail to offer any suggestion as to how the language of § 1701(c) might 
be interpreted in a manner that would not create a marital exemption to the rape statute, at least 
one such possible interpretation may be drawn from the plain and literal meaning of the statutory 
language itself. Putting aside the legal and historical underpinnings of the notion of spousal or 
> The enactment clause of legislation 
“denote[es] that an act is taking effect as law[; t]he most common enacting words 
are 
‘Be it enacted that 
Black’s Law Dictionary 606 (9th ed. 2009) 
© The People also argue that because Act No. 7517 eliminated from the first degree rape statute the requirement that 
the victim be “a person not [the perpetrator’s] spouse,’ 
we should conclude, despite the addition of § 1701(c), that the 
Legislature intended to eliminate any marital exemption from the statute. Curiously, while it is true that prior to the 
2013 amendments, several sections of title 14, chapter 85, including § 1700 (aggravated rape in the first degree), 
§ 
1700a (aggravated rape in the second degree), 
§ 1702 (rape in the second degree), and § 1703 (rape in the third degree) 
contained the 
“person not his spouse” 
language, 
it appears that § 1701 never included such language
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matrimonial consent, in the ordinary usage of the English language, devoid of context, the term 
spousal consent may reasonably be interpreted literally, to mean simply the consent of the spouse 
Consent, in turn, is defined as: 
“[C]ompliance in or approval of what is done or proposed by 
another;... 
the voluntary agreement or acquiescence by a person of age or with requisite mental 
capacity 
who 
is 
not 
under 
duress 
or 
coercion 
and 
[usually] 
who 
has 
knowledge 
or 
understanding 
Merriam—Webster's Dictionary of Law 97 (Collector's ed. 
2005). 
Similarly, 
Black’s Law Dictionary defines consent as “A voluntary yielding to what another proposes or 
desires; agreement, approval, or permission regarding some act or purpose, esp[ecially] given 
voluntarily by a competent person; legally effective assent.” 
Black's Law Dictionary 380 (11th ed 
2019). Thus, interpreting the term spousal consent literally, 
§ 1701(c) would essentially provide 
that a married individual cannot be punished for “perpetrat[ing] an act of sexual intercourse or 
sodomy with [his or her spouse]” under the circumstances described in § 1701(a)(2) if he or she 
proves that his or her spouse voluntarily agreed to engage in that act 
qi1 
Upon closer examination however, this literal interpretation of § 1701(c) fails to withstand 
scrutiny under the canons of statutory construction as 
it either leads to absurd results that the 
Legislature could not have intended, or alternatively, renders § 1701(c) superfluous or without 
meaning when paired with the language of § 1701(a)(2). We have previously observed that consent 
is a defense to first degree rape. 
In Williams 
v. 
Gov't of the 
V.L, 
55 V.I. 
721 
(V.I. 
2011), 
the 
appellant argued that the trial court erred in failing to instruct the jury separately on the defense of 
consent. 
However, we explained that in cases of first-degree rape, “the concept of consent is 
inherently addressed in the elements of the crime charged.” 
/d. 
at 729 (citing United States v 
Martin, 528 F.3d 746 (10th Cir. 2008)). 
“Although the language of section [1701{a)(3)] is devoid 
of the words ‘consent’ and ‘lack of consent,’” the statutory language, ‘when the person's resistance
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is prevented by fear of immediate and great bodily harm,’ is synonymous with a ‘lack of consent.’” 
Id. at 729-30. Therefore, we concluded that the trial court’s jury instruction sufficiently stated the 
law and was not plainly erroneous. 
/d. at 732 
ql2 
Here, the distinguishing element of first degree rape under 
§ 1701(a)(2)—specifically 
"when the person's resistance is forcibly overcome’”—just like the distinguishing element of § 
1701{a)(3) as discussed in Williams, necessarily implies a lack of consent. Conversely then, a 
showing of consent necessarily negates the element of overcoming forcible resistance 
in 
§ 
1701(a)(2) just as consent necessarily negates the element of preventing resistance by fear in § 
1701(a)(3). Thus, because a showing of consent negates an essential element of the crime, consent 
constitutes a classic, common law defense to first degree rape in violation of §§ 1701(a)(2) and 
1701(a)(3) 
413 
Yet, if consent constitutes a general defense to first degree rape irrespective of any marital 
relationship between the perpetrator and the victim, then the literal interpretation of § 1701{c)}— 
providing that the victim’s voluntary agreement to the sexual act constitutes an affirmative defense 
to a charge of first degree rape in the event that the perpetrator and the victim are legally married 
produces an absurd result, insofar as consent must be presented as an affirmative defense in cases 
of spousal rape, but remains an ordinary, common law defense to rape in all other cases. 
As 
affirmative defenses -- in contrast to ordinary, common law defenses -- require a defendant to 
affirmatively plead and prove a set of facts to defeat the legal consequences of his or her otherwise 
unlawful conduct, this literal interpretation of § 1701(c) would seemingly shift the burden of proof 
as to an essential element of the crime in spousal rape cases from the prosecution to the defendant; 
effectively requiring the accused to prove his or her innocence. Given that the presumption of 
innocence is axiomatic to our system of criminal justice, there can be no doubt that the Legislature
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did not intend to produce this absurd result in enacting § 1701{c). See Milligan v. People, 69 V.1 
779, 786 n.4 
(V.I. 
2018) (collecting cases affirming the essential, fundamental 
role of the 
presumption of innocence in the criminal justice system) 
ql4 
Additionally, if the term spousal consent is interpreted literally, then the provisions of § 
1701(c) are facially irreconcilable with the provisions of § 1701(a)(2), rendering one of the two 
provisions superfluous and devoid of any real meaning or effect. Because a showing of consent 
negates any showing that the victim’s resistance was forcibly overcome and vice versa, the statute 
cannot simultaneously require that the prosecution prove that the victim’s resistance was forcibly 
overcome and that the defendant prove that his or her spouse consented. Simply put, the statute 
cannot place the burden of proof as to an essential element of the crime on both the prosecution 
and the defendant at the same time. Giving effect to the literal meaning of § 1701(c) by requiring 
defendants to affirmatively prove consent in spousal rape cases would effectively relieve the 
prosecution of its burden 
to prove that the victim’s resistance was forcibly overcome and, 
consequently, render § 1701(a)(2) a nullity. Conversely, upholding the prosecution’s burden to 
prove that element would necessarily eliminate any requirement that the defendant affirmatively 
prove consent, essentially reading the word “affirmative” out of § 1701(c). 
In turn, if spousal 
consent—literally meaning 
the 
voluntary agreement 
of the spouse—merely 
constitutes 
a 
traditional, common law defense to rape, then the word “spousal” 
in the term spousal consent is 
also bereft of any meaningful effect because, as we explained in Williams, consent constitutes a 
defense to rape regardless of the existence of any marital relationship between the perpetrator and 
the victim. 
In effect, § 1701(c)—providing that “Spousal consent shall be an affirmative defense 
in the event the persons are legally married pursuant to the provisions of title 16, chapter 
1 of the 
Virgin Islands Code”—-would stand for nothing more than the unremarkable proposition, already
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implicit in the language of § 170i(a)(2), that “consent shall be a defense.” Accordingly, because 
the literal interpretation of §1701(c) either produces absurd results or renders significant portions 
of the other statutory language superfluous, we do not hesitate to reject it as applied to prosecutions 
under § 1701 (a)(2) 
415 
Instead, we must turn to the peculiar historical and legal meaning of the term “spousal 
consent”. That is, 
a wife’s automatic, continuous, and irrevocable consent to sexual contact with 
her husband implied solely by virtue of her marriage. Although shocking and offensive to the 
modern conscience, this conception of spousal or matrimonial consent has, until recent decades, 
largely persisted and survived in American criminal codes and judicial opinions as a kind of 
vestigial remnant of archaic, draconian notions of matrimonial and property rights derived from 
the common law of old England.’ The origins of the concept of spousal consent trace back to a 
treatise written by the seventeenth century English jurist, Matthew Hale, in which he discussed the 
crime of rape and potential defenses. 
He opined: 
“But the husband cannot be guilty of a rape 
committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract 
the wife hath given up herself in this kind unto her husband, which she cannot retract.” 
1 MATTHEW 
HALE, HISTORY OF PLEAS OF THE CROWN 629 (Giles Jacob ed. 
1716). 
It is worth noting that Hale 
cited no authority for this supposed rule, that no support for this rule has been found in the work 
of earlier jurists, and that even Blackstone, writing in the following century, made no mention of 
7 Since the 1980's, with a single exception discussed below, every court that has considered a challenge to this type 
of marital exemption, whether as a matter of common law or in the context of a constitutional challenge to a criminal 
statute, has struck down these marital exemptions for violating equal protection rights or for simply lacking any 
defensible justification in the modern common law. Nonetheless, as of 2011, only fourteen states had completely 
abolished all forms of marital immunity for sexual offenses, eschewing any distinction in the treatment of sex offenses 
committed between married persons and those committed between non-married persons, while thirty-five states and 
the District of Columbia retained some form of marital exemption—often eliminating marital exemptions for crimes 
involving forcible sexual penetration, 
but preserving marital immunity 
for other sexual crimes not involving 
penetration. See John F. Decker & Peter G. Baroni, "No" Still Means "Yes": The Failure of the "Non-Consent" Reform 
Movement in American Rape and Sexual Assault Law, 
101 
J. CRIM. 
L. 
& CRIMINOLOGY 1081, 
1155 (2011)
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matrimonial consent despite discussing other statements made by Hale. See State v. Smith, 426 
A.2d 38, 41 (N.J. 
1981) (discussing the history of the marital exemption to the crime of rape at 
English common law). Nonetheless, beginning with a decision of the Supreme Judicial Court of 
Massachusetts in 1857, courts across the nation adopted and incorporated Hale’s concept of 
matrimonial consent into the common law of their respective jurisdictions. See People v. Liberta, 
474 N.E.2d 567, 
572 (N.Y. 
1984) (citing Commonwealth 
v Fogerty, 
74 Mass. 
489 (1857)) 
(examining the history of the adoption of the marital consent doctrine by various jurisdictions in 
the United States). Since the time of Hale and even into the modern era, legal commentators have 
repeatedly restated the spousal consent rule, albeit without any discussion of its merits. See Smith 
426 A.2d at 41 (collecting sources) 
ql6 
Thus, given the long history of the use of the term “spousal consent”—or equivalent terms 
such as matrimonial consent—in the common law of England and of the states and territories of 
the United States, the canons of statutory construction compel us to interpret the term “spousal 
consent” as used in § 1701(c) according to its peculiar and appropriate legal meaning: 
a wife’s 
irrevocable consent to sexual contact with her husband implied by law solely by virtue of her 
marriage. 
Interpreting the statute in accordance with this historical, legal meaning of spousal 
consent, the meaning and effect of § 1701{c) may fairly be summarized as follows: an individual 
may not be found guilty of first degree rape if that individual affirmatively proves that the victim 
is his or her spouse because the law deems a spouse to have consented to such sexual conduct by 
virtue of his or her marriage.* Thus, there can be no question that § 1701(c) constitutes a marital 
® Because spousal consent, used in the historical, literal sense of the term, is implied by law upon proof of marriage 
regardless of whether the victim spouse voluntary agreed to engage in the particular sexual conduct at issue, 
the 
historical interpretation avoids the problems and contradictions in the statutory scheme—-particularly with respect to 
burdens of proof—-that arise from the literal interpretation discussed above. 
There is no logical contradiction in
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exemption to the crime of first degree rape, as it provides married individuals immunity from 
punishment for otherwise unlawful sexual conduct, upon a simple showing that the individual is 
legally married to his or her victim. 
C. 
Equal Protection 
417 
Having established that § 1701(c) creates a marital exemption to the crime of first degree 
rape, we must next determine whether the marital exemption provided in subsection (c) renders § 
1701 
unconstitutionally underinclusive 
in violation 
of the Equal Protection Clause of the 
Fourteenth Amendment. Wilkinson argues that the first degree rape statute is unconstitutionally 
underinclusive because he is subject to punishment under the statute for his conduct, while others 
who engage in the same conduct prohibited by the statute avoid punishment merely because they 
are married to their victims. 
(Appellant’s Br. 
at 13.) The People concede that, 
if § 1701(c) 
constitutes a marital exemption to the crime of first degree rape, that exemption violates the Equal 
Protection Clause of the Fourteenth Amendment and should be stricken from 
the statute 
(Appellee’s Br. 
at 9.) Despite this concession, given the “great gravity and delicacy” with which 
we must approach any potential invalidation ofa 
legislative enactment, we must carefully examine 
Wilkinson’s argument to ascertain, for ourselves, whether the first degree rape statute, with its 
marital exemption, violates the Equal Protection Clause. See Azille v. People, 
59 V.1. 
215, 227 
requiring the prosecution to prove that the victim’s resistance was forcibly overcome, while also requiring the accused 
to prove that he or she is married to the victim in order to avail himself or herself of the affirmative defense of spousal 
consent 
° While there is arguably a distinction to be drawn between statutes like § 1701(c) that establish a marital exemption 
as an affirmative defense, and those that expressly define sexual crimes as crimes committed against 
‘‘a person not his 
spouse,” there is ultimately little, if any, practical difference. 
In the former case, the accused bears the burden of 
proving that he or she is married to the victim, while in the latter, the prosecution must prove that the accused is not 
married to the victim as an element of the crime. In the end however, the result is the same no matter where the burden 
of proof lies: the law allows the married individual to avoid punishment for nonconsensual sexual conduct perpetrated 
upon his or her spouse
Wilkinson 
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(V.I. 
2012) (quoting Ashwander 
v. 
Tennessee 
Valley Auth., 
297 
U.S. 
288, 
345-46 (1936) 
(Brandeis, J., concurring)) 
q18 
|The Equal Protection Clause of the Fourteenth Amendment prohibits any state from 
“deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST 
amend. 
XIV. 
The Revised Organic Act of 1954 specifically extends the protections of the 
Fourteenth Amendment's Equal Protection Clause to the Virgin Islands. 48 U.S.C. 
§ 1561. 
“The 
Equal Protection Clause guarantees United States citizens 
a 
‘right to be free from invidious 
discrimination in statutory classifications and other governmental activity,” 
Fleming v. Cruz, 62 
V.I. 702, 716 (V.I. 2015), and “is essentially a direction that all persons similarly situated should 
be treated alike.” 
Webster v. People, 60 V.1. 666, 673 (2014) (quoting Lawrence v. Texas, 539 U.S 
558, 579 (2003)). Generally, unless the challenged statute draws inherently suspect classifications 
warranting heightened scrutiny such as those based upon race, alienage, and national origin, 
“legislation is presumed to be valid and will be sustained if the classification drawn by the statute 
is rationally related to a legitimate state interest.” City of Cleburne vy. Cleburne Living Ctr., 473 
U.S. 432, 440 (1985) (citations omitted). Because no suspect class is implicated by § 1701, the 
statute is only subject to rational basis review 
q!9 
| While the Equal Protection Clause does not prohibit the territorial Legislature from 
enacting laws that treat different classes of people in different ways, it denies the Legislature “the 
power to legislate that different treatment be accorded to persons placed by a statute into different 
classes on the basis of criteria wholly unrelated to the objective of that statute.” Eisenstadt v. Baird, 
405 U.S. 438, 447 (1972). Additionally, the Equal Protection Clause demands that classifications 
must “be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and 
substantial relation to the object of the legislation, so that all persons similarly circumstanced shall
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be treated alike.” 
/d. (quoting Royster Guano Co. 
v. 
Virginia, 253 U.S. 
412, 415 (1920)). 
In the 
specific context of equal protection challenges to statutory classifications based upon marital 
status, the relevant question “is whether there is some ground of difference that rationally explains 
the different treatment accorded married and unmarried persons” 
under the challenged statute. /d.; 
see also Liberta, 474 N.E.2d at 573 
20 
For the reasons discussed below, we conclude that there is no rational basis for treating 
marital rape differently from nonmarital rape in the eyes of the law. As poignantly summarized by 
the New York Court of Appeals, “[t]he various rationales which have been asserted in defense of 
the exemption are either based upon archaic notions about the consent and property rights incident 
to marriage or are simply unable to withstand even the slightest scrutiny.” /d. Accordingly, we 
declare the marital exemption to the crime of first degree rape codified at 14 V.1.C. 
§ 1701(c) 
unconstitutional, as it violates the Equal Protection Clause of the Fourteenth Amendment 
q21 
 Wilkinson’s equal protection argument is drawn, almost entirely, from Liberta, in which 
the New York Court of Appeals held that the marital exemption in New York’s forcible rape statute 
violated the Equal Protection Clause. While Liberta was the first decision to strike down a statutory 
marital exemption for sexual offenses on equal protection grounds, courts in other jurisdictions 
have since followed the paradigm set by the New York Court of Appeals in declaring their own 
respective marital exemptions unconstitutional.'° See, e.g., 
Williams v. State, 494 So. 2d 819, 826 
(Ala. Crim. App. 
1986) (declaring marital exemption to forcible sodomy statute unconstitutional); 
Merton 
v. 
State, 500 So.2d 1301, 
1302-05 (Ala. Crim. App. 
1986) (declaring marital exemption 
i The Liberta decision, itself, drew heavily upon the reasoning of the Supreme Court of New Jersey in State v. Smith, 
426 A.2d 38, 41 (NJ. 
1981), in which that court became the first to reject the marital exemption as a matter of common 
law. Several courts in other jurisdictions have similarly followed the approach of the Smith court. See, 
e.g., 
State 
\ 
Rider, 449 So. 2d 903, 904 (Fla. Dist. 
Ct. App. 
1984); Commonwealth v. Chretien, 417 N.E.2d 1203, 
1207-10 (Mass 
1981); State v. Willis, 394 N.W.2d 648, 650-51 (Neb. 
1986); Shunn 
v. 
State, 742 P.2d 775, 778 (Wyo. 1987)
Wilkinson 
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to forcible rape statute unconstitutional); People v. M.D., 
595 N.E.2d 702, 708 (Ill. App. 
Ct. 1992) 
(declaring marital exemption to criminal sexual assault statute unconstitutional). 
We, 
in turn, 
follow the lead of these persuasive decisions in critically evaluating the various rationales that 
have been put forth to justify the different treatment of marital rape and nonmarital rape in the 
criminal law 
422 
There are three traditional justifications for exempting married men from punishment for 
sexual offenses committed against 
their wives. 
The 
first 
is 
Hale’s conception 
of implied 
matrimonial consent outlined above, in which the law deems a wife to have perpetually and 
irrevocably consented to sexual intercourse with her husband at the time of their marriage. Hale’s 
implied consent theory, in turn, appears to be derived from the other two archaic common law 
doctrines traditionally offered to justify the marital exemption: that 
a woman was the property of 
her husband and that the legal existence of 
a woman was “incorporated and consolidated into that 
of her husband.” 
Liberta, 474 N.E.2d at 573 (quoting 
1 WILLIAM BLACKSTONE'S COMMENTARIES 
430 (1966 ed.)) 
{23 
However, these antiquated doctrines simply have no place in modern society, let alone in 
the law of the Virgin Islands, as they are repugnant and antithetical to our shared values and to our 
contemporary understanding of personal liberty and basic human rights. 
Indeed, in refusing to 
adopt the amatory torts of alienation of affections and criminal conversation, this Court has 
previously recognized, together with the vast majority of American jurisdictions, that legal 
theories, precepts, and doctrines grounded in the draconian idea that wives are the property of their 
husbands must be eschewed and excised from the law wherever they are found. See Matthew 
1 
Herman, 
56 V.1. 674, 683-84 (V.I. 2012) (refusing to recognize the amatory torts “because they 
are based on antiquated concepts of women as property and are destructive to existing marriages”)
Wilkinson 
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As the Supreme Court of the United States has observed: “Nowhere in the common-law world 
indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate 
legal identity and the dignity associated with recognition as 
a whole human being.” 
Trammel 
United States, 445 U.S. 40, 52 (1980) 
424 
Rape, particularly forcible rape, 
is 
“a degrading, violent act which violates the bodily 
integrity of the victim and frequently causes severe, long-lasting physical and psychic harm,” 
and 
the suggestion that the law should ever imply an individual’s consent to rape is plainly absurd 
Liberta, 
474 N.E.2d at 573 (citations omitted). 
Such an implied consent rule would effectively 
give one spouse the control over the other spouse's bodily integrity. Weishaupt v. Commonwealth, 
315 S.E.2d 847, 402 (Va. 
1984). The Supreme Court of the United States has described the crime 
of rape as “highly reprehensible, both in a moral sense and in its almost total contempt for the 
personal integrity and autonomy of the female victim and for the latter's privilege of choosing 
those with whom intimate relationships are to be established.” Coker v. Georgia, 433 U.S. 
584, 
597 (1977). The fact that an individual perpetrates a rape against his or her spouse rather than 
against a stranger does not make those actions any less reprehensible or, in any way, lessen the 
catastrophic damage inflicted upon the personal integrity and autonomy of the victim. Thus, we 
unequivocally reject these traditional justifications for the marital exemption to the crime of rape, 
as they 
fail 
to provide any rational explanation for allowing 
a married individual 
to escape 
punishment for rape merely because the victim is his or her spouse 
425 
Additionally, there are four, more modern rationales that courts have examined in recent 
years as potential justifications for retaining the marital exemption. The first of these, as argued 
by the prosecution in Liberta, is that the marital exemption protects against government intrusion 
into marital privacy. 474 N.E.2d at 574. However, every court to consider the issue has found that
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the right to marital privacy, first recognized by the United States Supreme Court in Griswold \ 
Connecticut, 381 U.S. 
479, 485 (1965), protects only private, consensual, marital relations and 
does not extend to violent sexual acts. See, 
e.g., 
Cotner v. Henry, 394 F.2d 873, 875 (7th Cir. 1968) 
(“The import of the Griswold decision is that [only] private, consensual, marital relations are 
protected from regulation by the State through the use of a criminal penalty.”); State v. Bateman, 
547 P.2d 6, 9-10 (Ariz. 
1976) (holding that marital privacy rights are not violated by husband's 
conviction for forcing an act of sodomy upon his wife); Williams, 494 So.2d at 828; People v 
M.D., 
595 N.E.2d at 190-91; 
Liberta, 474 N.E.2d at 573-74. Thus, while the government certainly 
has 
a legitimate interest 
in protecting spouses’ 
marital privacy rights, there 
is no rational 
connection between the protection of these interests and the legislative determination that 
a 
married individual should be allowed to rape his or her spouse with impunity. “Just as a husband 
cannot invoke a right of marital privacy to escape liability for beating his wife, he cannot justifiably 
rape his wife under the guise of a right to privacy.” Liberta, 474 N.E.2d at 574 
426 
The next argument in favor of the marital exemption is that it promotes reconciliation of 
spouses and avoids disruptions to the marriage that would be caused by criminal proceedings. This 
argument defies reason. 
It is absurd to suggest that prosecuting an individual for the crime of 
forcible rape against his or her spouse would cause any more disruption of a marriage than had 
already been caused by the violent act itself. Weishaupt, 
315 S.E.2d at 405. 
Furthermore, if a 
marriage has already degraded to the point where sexual relations are accomplished by forcible, 
nonconsensual intercourse, it is doubtful that there is anything left of the harmony of the marital 
relationship to reconcile. 
/d.; see also Trammel, 445 U.S. 
at 52 (“When one spouse is willing to 
testify against the other in a criminal proceeding—whatever the motivation—their relationship is 
almost certainly in disrepair; there is probably little in the way of marital harmony... 
to preserve.)
Wilkinson v. People 
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927 
Another rationale asserted by proponents of the marital exemption focuses on the difficulty 
of proving marital rape and suggests that the marital exemption furthers the government’s interest 
in preventing prosecutions based upon the fabricated complaints of vengeful or vindictive spouses 
As explained by the Supreme Court of Colorado in People 
v. Brown, the only modern case 
upholding a marital exemption in the face of an equal protection challenge: “the marital exception 
averts difficult emotional issues and problems of proof inherent in this sensitive area. Otherwise 
juries would 
be expected 
to fathom 
the intimate sexual 
feelings, 
frustrations, 
habits, 
and 
understandings unique to particular marital relationships.” 632 P.2d 1025, 1027 (Colo. 
1981) 
Clearly, the “inherent problems of proof” to which the court alluded in Brown, are the well-known 
difficulties associated with proving lack of consent that have been discussed and debated by jurists 
and legal scholars for decades. However, as other courts have noted, proving lack of consent is 
often the most difficult aspect of prosecuting any rape case in which the alleged perpetrator has 
had a prior consensual sexual relationship with the victim, regardless of whether they were married 
or unmarried. See People v. M.D., 
595 N.E.2d at 712; 
Williams, 494 So. 
2d at 829; Liberta, 474 
N.E.2d at 574. Additionally, there is no reason to believe that married persons are any more likely 
to file false complaints than unmarried persons. 
And, as the court observed in Liberta: 
“The 
criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling 
any false complaints. 
Indeed, 
if the possibility of fabricated complaints were a basis for not 
criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than 
homicides would go unpunished.” 
474 N.E.2d at 574. Thus, although the government undoubtedly 
has an interest in ensuring that criminal convictions are based upon credible evidence, we can 
discern no manner in which providing a marital exemption for first degree rape rationally furthers 
that interest
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§28 
= The final rationale often advanced in support of the marital exemption is that it results from 
a legislative determination that marital rape somehow constitutes 
a less serious crime than 
nonmarital rape, and 
is therefore adequately addressed by the possibility of prosecuting the 
offending spouse under other criminal statutes, such as assault statutes, which carry appropriately 
less severe penalties. However, there is no evidence to suggest that marital rape has less severe 
consequences, either for the victim or for society, than nonmarital rape, and therefore no logical 
basis for classifying marital rape as a less serious offense. 
In fact, “numerous studies have shown 
that marital rape is frequently quite violent and generally has more severe, traumatic effects on the 
victim than other rape,” because the perpetrator is someone with whom the victim once shared a 
loving, trusting, intimate relationship. 
See Liberta, 
474 N.E.2d at 574-75 (collecting sources) 
Furthermore, the very existence of our first degree rape statute and the severe penalties prescribed 
therein demonstrates legislative recognition that the nature of the harm caused by forcible rape is 
categorically different, and more severe, than that caused by ordinary assault. See People v. M_D., 
595 N.E.2d at 712; Williams, 494 So. 2d at 829; Liberta, 474 N.E.2d at 574-75. Therefore, because 
we cannot discern any rational justification that would support a legislative determination that 
marital rape is a less severe crime than nonmarital rape, this theoretical legislative determination 
does not constitute a rational basis for granting a certain class of individuals immunity from 
punishment under the first degree rape statute merely because they are married to their victims 
429 
Upon close inspection, each potential rationale for the marital exemption that we have 
considered, whether traditional or modern in origin, is utterly devoid of merit. Not one provides a 
rational basis for drawing a distinction between individuals who are married to the victims of their 
nonconsensual sexual acts and those who are not. Indeed, we cannot conceive of any justification 
for allowing individuals to escape punishment for rape solely because they are married to their
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victims. As Justice Holmes wrote: 
“It is revolting to have no better reason for a rule of law than 
that so it was laid down in the time of Henry IV. 
It is still more revolting if the grounds upon which 
it was laid down have vanished long since, and the rule simply persists from blind imitation of the 
past.” 
Oliver Wendell Holmes, 
The Path of the Law, 
10 HARv. 
L. 
REV. 
457, 
469 (1897) 
Accordingly, because the marital exemption provided in § 1701(c) bears no rational relationship 
to any legitimate government interest, 14 V.I-C. 
§ 1701 
is unconstitutionally underinclusive in 
violation of the Equal Protection Clause of the Fourteenth Amendment 
D. 
Plain Error 
& Remedy 
430 
Although we have determined that § 1701 
is unconstitutionally underinclusive, because 
Wilkinson failed to raise his equal protection argument before the Superior Court, we review the 
judgment of the trial court only for plain error. Virgin Islands Rule of Criminal Procedure 52(b) 
states: 
“A plain error that affects substantial nghts may be considered even though it was not 
brought to the court’s attention.” The Supreme Court of the United States has explained that the 
identical provision in Federal Rule of Criminal Procedure 52(b) “defines a single category of 
forfeited-but-reversible error.”'' United States v. Olano, 507 U.S. 725, 732 (1993). Under this rule, 
the error “may be considered” 
only if it is plain and affects substantial rights. 
/d. In this context, 
“considering” an error specifically means correcting that error by either vacating a judgment of 
the Superior Court and remanding for a new trial or reversing the judgment outright unless certain 
'' 
“Though we are mindful that decisions of federal courts interpreting a rule of federal procedure represent persuasive 
rather than binding authority in the context of this Court's interpretation of an identical Virgin Islands rule, we see no 
reason to depart from well-established federal jurisprudence on this issue.” 
Yearwood Enterprises, Inc. 
v. Antilles Gas 
Corp., 
69 V.I. 
863, 869-70 (2018) (citing Antilles Sch. 
v. Lembach, 
64 V.1. 400 (V.I. 2016) (‘[C]ourts do not state 
that borrowed rules incorporate the construction given them by the highest court of [the] jurisdiction from which they 
were borrowed. Instead, courts typically view such earlier constructions of borrowed rules as [being] persuasive, not 
mandatory.”))
Wilkinson v. People 
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criteria are satisfied.'? /d. (“More precisely, a court of appeals may correct the error (either vacating 
for a new trial, or reversing outright) only if it meets these criteria.”).!> 
431 
Similarly, since our earliest decisions, this Court has consistently described the plain error 
doctrine as a rule establishing conditions precedent to the exercise of our discretion to reverse a 
judgment of the Superior Court. See Murrell 
v. 
People, 54 V.1. 
338, 365 (2010) (“This Court has 
recently set forth the four elements that must be met in order to reverse a conviction under the 
plain error standard of review.”); Webster, 60 V.1. 
at 676 (“[W]e will only exercise our discretion 
to reverse [a defendant’s] conviction if the Superior Court's error was plain and affected [the 
defendant’s] substantial rights, and affirming [the defendant’s] conviction would seriously affect 
the fairness, integrity, or public reputation of judicial proceedings.”) (internal quotation marks 
omitted); Wallace v. People, 71 V.1. 703, 711 (V.1. 2019) (“For this Court to reverse under a plain 
error standard of review, 
four conditions must be met.”’). Even in those cases in which we have 
described the plain error rule less precisely in terms of “noticing” 
or “correcting,” rather than 
reversing an error not raised in the Superior Court, we have borrowed this language directly from 
decisions of the United States Supreme Court, and therefore must interpret these terms according 
to their technical and precise meaning as provided by that tribunal in opinions such as Olano. See 
Davis v. People, 69 V.I. 619, 675 (2018) (citing Olano, 507 U.S. 
at 732) (when the four plain error 
" 
In Olano, the Supreme Court explained that the phrase 
“may be noticed,” 
as it was then used in Rule 52(b), bears a 
specific and precise meaning. 
“Noticing” 
an error in this context doctrine means correcting that error by vacating or 
reversing a judgment of the lower court. 507 U.S. 
at 732. 
In 2002, the language of Rule 52(b) was amended to repiace 
the more archaic phrase “may be noticed” with the phrase 
“may be considered,” as part of the general restyling of the 
Criminal Rules to make them more easily understood. However, these changes were expressly intended to be stylistic 
only. Thus, because these two phrases are interchangeable in this context, the Supreme Court’s 
analysis of the meaning 
and effect of the previous version of Rule 52(b) is equally applicable to the current, restyled version of the rule, and 
therefore equally applicable to the identical Virgin Islands rule as well 
'3 Indeed, 
as originally stated in United States 
v. 
Atkinson—the seminal decision in which the Supreme Court first 
articulated the plain error doctrine, and from which the language of Rule 52(b) is derived—the plain error doctrine 
was described as providing an exception to the general rule that 
“[t]he verdict of a jury will not ordinarily be set aside 
for error not brought to the attention of the trial court.” 
297 U.S. 
157, 
159 (1936)
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factors are satisfied, “the Court may then exercise its discretion and notice the error’); Nanton v 
People, 
52 V.1. 466, 475 (2009) (citing Olano, 507 U.S. 
at 732) (To correct an error which was 
not raised at trial, this Court must find: 
(1) an error; (2) that is plain; (3) that affected substantial 
rights.” (internal quotation marks omitted); Williams v. People, 56 V.I. 821, 830 (2012), overruled 
on other grounds by Titre 
v. 
People, 70 
V.1. 
797 (2019) (“[A]n appellate court may, 
in 
its 
discretion, correct an error not raised at trial only where [the plain error criteria are satisfied].”) 
(citing United States v. Marcus, 560 U.S. 258, 262 (2010)). Thus, the plain error doctrine is only 
implicated in cases in which we must determine whether to exercise our discretion to vacate or 
reverse a judgment of the Superior Court based on an error that was not raised in the proceedings 
below. Olano, 507 U.S. 
at 732 
432 
In this case, there is no doubt that the Superior Court committed error by convicting 
Wilkinson pursuant 
to an unconstitutional statute. 
See Webster, 60 V.I. 
at 677 (“[BJasing 
a 
conviction on an unconstitutional statute is both ‘plain’ 
and an ‘error.’”) (quoting United States v. 
Knowles, 29 F.3d 947, 951 (Sth Cir. 
1994)); see also United States v. Coil, 442 F.3d 912, 916 (Sth 
Cir. 2006) (“A conviction based upon an unconstitutional statute is both ‘plain’ and ‘error.’’’) 
Crutchfield v. 
State, 627 P.2d 196, 
199 (Alaska 1980) (“If the regulation is unconstitutional, 
[the 
defendant’s] conviction, to the extent that it is based on the regulation, constitutes plain error.”) 
And, because Wilkinson failed to raise this error before the Superior Court, we may only exercise 
our discretion to reverse his conviction if the four elements of the plain error standard are satisfied 
Wallace, 
71 V.I. 
at 711. However, we need not reach this issue here because we conclude, for the 
reasons discussed below, that the appropriate remedy for the Superior Court’s constitutional error 
is not to reverse Wilkinson’s conviction, but rather to sever subsection (c) from § 1701 and affirm 
Wilkinson’s conviction under the resulting, constitutionally valid statute. 
In other words, because
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the constitutional error presented in this case may be remedied without reversing or otherwise 
disturbing the judgment of the Superior Court, we need not determine whether to exercise our 
discretion to reverse Wilkinson’s conviction under the plain error doctrine.'4 
733 
A determination that one subsection of a statute violates the constitution does not 
automatically render the entire statute unconstitutional. 
United States v. Jackson, 390 U.S. 
570, 
585 (1968). “Unless it is evident that the legislature would not have enacted those provisions which 
are within its power, independently of that which is not, the invalid part may be dropped if what 
is left is fully operative as a law.” 
/d. When a court determines that a statute is unconstitutionally 
underinclusive, the court may either strike the statute in its entirety, or extend the coverage of the 
statute to those who were formerly excluded. 
Liberta, 
474 N.E.2d at 170 (citing Califano 
v. 
Westcott, 443 U.S. 76, 89 (1979). Additionally, “{iJn any case where a court must decide whether 
to sever an exemption or instead declare an entire statute a nullity it must look at the importance 
of the statute, the significance of the exemption within the over-all statutory scheme, and the 
effects of striking down the statute.” Jd. We have already discussed the severity of the crime of 
rape and the important interests protected by the statutory proscription of forcible sexual conduct 
Given the great importance of the first degree rape statute, declaring § 1701 a nullity in its entirety 
would certainly have a catastrophic effect on the public interest and safety. And while we are 
4 Although we need not decide the issue here, we note that there is also good reason to conclude that this error was 
“plain” within the meaning of Rule 52(b). Although we have never specifically addressed the constitutionality of 14 
V.LC. 
§ 1701, 
in Castor v. People, 57 V.1. 482 (V.1. 2012), in the context of reviewing an appellant’s convictions for 
first degree aggravated rape (14 V.I.C. 
§ 1700) and first degree sexual assault (14 V.I.C. 
§ 1708), we noted that courts 
in other jurisdictions have held that marital exemptions violate the Equal Protection Clause by treating married and 
unmarried persons differently without a rational basis for doing so. 57 V.I. 
at 490 n.4 (citing Liberta, 474 N.E.2d at 
573-74). Moreover, the relevant law governing the rational basis review of a statute challenged under the Equal 
Protection Clause 
is well-established 
in the decisions of both this Court and the United States Supreme Court, 
Eisenstadt y. Baird, 405 U.S. 438, 447 (1972) (Equal Protection Clause forbids legislatures from according different 
treatment “to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective 
of that statute”), and “‘it is expected that [the Superior Court] knows and applies settled law.” 
Webster, 60 V.I. at 677 
(quoting Hightree v. People, 55 V.1. 947, 954 (V.I. 2011))
Wilkinson 
v. 
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reluctant to expand the scope of any criminal statute, due to the danger of usurping the role of the 
Legislature, the overriding policy concerns involved in this case compel us to do so to avoid the 
disastrous consequences that would flow from even the temporary elimination of the crime of first 
degree rape in this jurisdiction. 
/d. 
434 
We have no doubt that the Legislature would elect to retain a first degree rape statute that 
applies equally to married and unmarried individuals, rather than to eliminate the statute entirely 
Therefore, 
§ 1701(c) 
is hereby severed and stricken from the remainder of 14 V.LC. 
§ 1701 
Consequently, spousal consent no longer constitutes an affirmative defense to the crime of first 
degree rape. 
In turn, because we sever only subsection (c) and uphold the constitutionality of the 
remaining subsections of § 1701, which remains a 
fully operative criminal statute, Wilkinson’s 
conviction for first degree rape in violation of § 1701(a)(2) must be affirmed.'> 
IV. 
CONCLUSION 
935 
Because Wilkinson’s convictions for both first degree rape and first degree sexual assault 
arise from the same act or course of conduct, we remand this matter to the Superior Court for 
resentencing 
in accordance with our decision 
in 
Titre 
v. 
People, 
70 
V.I. 
797 
(V.I. 
2019) 
Additionally, because 
14 V.I.C. 
§ 
1701 unreasonably and arbitrarily subjects Wilkinson to 
punishment for his conduct, while allowing others who engage in the same conduct prohibited by 
the statute to escape punishment merely because they are married to their victims, the statute is 
unconstitutionally underinclusive in violation of the Equal Protection Clause. However, because 
'S Wilkinson cannot claim that our decision to retain the remainder of the first degree rape statute, and consequently 
affirm his conviction thereunder, denies him due process of the law. While the due process clause of the Fourteenth 
Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made 
criminal by the State (see Bouie 
v City of Columbia, 378 U.S. 347 (1964)), Wilkinson did not fall within the exemption 
that we have stricken, and therefore his actions were clearly prohibited by the statute as it existed when he committed 
the rape
Wilkinson 
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we sever and strike the marital exemption provided 
in 
14 V.LC. 
§1701(c) and uphold the 
remaining, constitutionally valid portions of the statute, we affirm Wilkinson’s conviction for first 
degree rape in violation of 14 V.LC. 
§ 1701(a)(2) 
Dated this 28th day of January, 2025 
BY THE COURT 
/s/ 
C 
ar 
5 
& 
MARSA M ae 
Asséciate Justice 
ATTEST 
VERONICA J. HANDY, ESQ 
Clerk of 
the Court 
do 
By 
Deputy Clerk 
\| 
pated __ 1 
AB-QOAD
SWAN, Associate Justice, Dissenting 
436 
Appellant Lloyd 
S. 
Wilkinson seeks reversal of convictions for first degree rape, first 
degree assault, and first degree unlawful sexual contact together with the unlawful sexual contact 
conviction, a lesser included offense, which he contends should be vacated in accordance with the 
Virgin 
Islands Supreme Court’s decision 
in 
Titre 
v. 
People, 
70 
V.I. 
797 
(V.1. 
2019), 
or 
alternatively, remand of the case. Wilkinson also asserts that an alleged marital exception in 14 
V.I.C. 
§ 1701(c) violates the Equal Protection Clause of the Fourteenth Amendment to the U.S 
Constitution. 
For the reasons elucidated below, 
I would opt to remand Wilkinson’s convictions 
and sentences to the Superior Court to be amended to comport with our holding in Titre, but 
I 
reject Wilkinson’s contention that 14 V.I.C. 
§ 1701(c) constitutes a marital exception that violates 
the Equal Protection Clause of the Fourteenth Amendment. Because my perspective conflicts with 
the holding of the majority, 
I respectfully dissent 
I 
FACTS AND PROCEDURAL HISTORY 
437 
On February 11, 2015, at approximately 5:30 a.m., C.D. left her Frenchtown residence and 
proceeded 
to her employment 
at the Frenchtown 
Deli. 
As she walked behind Betsy’s Bar 
establishment, C.D. 
heard footsteps behind her. 
C.D. 
turned around and immediately saw an 
approaching man approximately 30 feet away. As C.D. continued to walk, the man appeared beside 
her within minutes. The man asked C.D. 
to borrow her lighter, and she gave it to him. 
As he 
returned it, the man said his name was Shaka. Without warning, the man grabbed C.D. around her 
neck with his arm and dragged her to an area behind a truck owned by Terminix Pest Control 
Company. With his arm still around her neck, the man forced C.D. onto her knees, removed her 
pants and undergarments, and proceeded to rape her vaginally. After he completed his dastardly 
act, the man fled the scene. Thereupon, C.D. hastened to the Frenchtown Fish Market where she
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 2 of 27 
asked a fisherman to call 911. 
Soon thereafter, the police arrived and transported C.D. 
to Roy 
Lester Schneider Hospital where medical personnel recorded her statement, took some articles of 
her clothing, and administered to her and completed 
a rape kit. 
Detective Monique Hodge 
Donovan arrived at the hospital to interview C.D.. 
Crime Scene Technician Aneaca David took 
photographs 
of C.D.’s 
injuries. 
Upon 
leaving 
the 
hospital, 
Hodge-Donovan 
and 
David 
accompanied C.D. 
to the Police Department’s Forensic Bureau where she reviewed mug shot 
photo albums, in an attempt to identify her assailant. After reviewing two albums, C.D. was unable 
to continue. 
Later that day, Hodge-Donovan, David, and C.D. returned to Frenchtown to obtain 
more information, to take photographs of the crime scene, and to search for the perpetrator. Unable 
to find the suspect, Hodge-Donovan transported C.D. 
to her home 
938 
On February 12, 2015, Hodge-Donovan drove C.D. to the Main Street area on St. Thomas 
in another attempt to locate the suspect. As the unmarked police car they occupied stopped at the 
traffic light in front of Enid Baa Library, a man crossed the street in front of the car. C.D 
immediately informed the officer that the man was the individual who raped her. Hodge-Donovan 
asked C.D. 
if she was completely sure the man was the rapist and C.D. 
replied affirmatively 
Hodge-Donovan exited the vehicle and arrested the suspect. 
Hodge-Donovan transported the 
suspect, Lloyd Wilkinson, to Schneider Hospital where a suspect’s rape kit was administered upon 
him by medical personnel 
{39 
On February 8, 2016, Wilkinson was tried on a three count information for first degree rape 
in violation of 14 V.I.C. 
§ 1701(a)(2) (count one),!' first degree assault in violation of 14 V.LC. 
§ 
' “Whoever perpetrates an act of sexual intercourse or sodomy with a person . .. when a person’s resistance is forcibly 
overcome.” 
14 V.LC. 
§ 1701(a)(2)
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 3 of 27 
295(3) (count two),’ and first degree unlawful sexual contact in violation of 14 V.LC 
§ 1708(1) 
(count three).? However, the case concluded in a mistrial. On October 17, 2016, Wilkinson was 
retried and ultimately convicted of the same charges on October 18, 2016. On December 16, 2016, 
the court sentenced Wilkinson to thirty years on count one with credit for time served in pre-trial 
incarceration, five years on count two to be served concurrently with count one, and five years on 
count three for which the court stayed the sentence’s execution. 
The court memorialized the 
sentence in a judgment on February 1, 2017. Wilkinson perfected a timely appeal of the court’s 
judgment on February 6, 2017 
II 
JURISDICTION 
{40 
“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final 
decrees or final orders of the Superior Court.” 4 V.I.C. 
§ 32(a). 
In a criminal case, a judgment 
embodying the adjudication 
of guilt and 
the sentence imposed based on 
that adjudication 
constitutes a final judgment for the purposes of this statute. Williams v. People, 58 V.1. 341, 345 
(V.I. 2013) (collecting cases). Accordingly, the Superior Court’s February |, 2017 judgment is a 
final judgment over which we exercise jurisdiction 
Iii. 
DISCUSSION 
A. 
Wilkinson Failed to Preserve the Equal Protection Issue for Appellate Review 
441 
On appeal, Wilkinson argues that an alleged marital exception to the local rape statute 
violates the Equal Protection Clause of the Fourteenth Amendment. Wilkinson further contends 
the alleged exception makes the statute under-inclusive and affords Wilkinson standing 
to 
“Whoever 
Sik tntenesg conic rape, sodomy, mayhem, robbery, or larceny, assaults another 
14 V.LC.§ 
ay merson who engages in sexual contact with a person when force or coercion is used to accomplish sexual contact 
14 V.LC. § 1708(1)
Wilkinson v, People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 4 of 27 
challenge the statute’s constitutionality because 
it punishes him while excluding others who 
commit the same crime.‘ (Appellant’s Br. 13) 
42 
Undeniably, the majority agrees with Wilkinson and also purports that 14 V.I.C. 
§ 1701(c) 
is an unconstitutional marital exception 
43 
~—~As an initial matter, 
| evaluate whether Wilkinson’s and the majority’s contention that 14 
V.LC. 
§ 1701(c) represents a marital exception is properly before the Virgin Islands Supreme 
Court, since the issue was not presented or raised at trial. 
It is well settled that an “appellate court 
will not consider an issue not [initiated] below. Consequently, when a litigant fails to raise an issue 
below in a timely fashion and the court below does not address the merits of the issue, the litigant 
has not preserved the issue for appellate review.” 
F.D.L.C. 
v. Noel, 
177 F.3d 911, 915 (10th Cir 
1999) (citations omitted). 
See Percival v. People, 
62 V.1. 
477, 
486 (V.I. 
2015) (citing former 
V.LS.CT.R. 4(h) (“[T]he rules of this Court require only that an argument be ‘fairly presented to 
the Superior Court [in order to] be presented for review on appeal.’”) and former V.LLS.CT.R 
22(m) (“Issues that were 
not raised or objected to before the Superior Court 
are deemed 
waived for the purposes of appeal.”); V.ILR. 
App. 
P. 
4(h) (“Only issues and arguments fairly 
presented to the Superior Court may be presented for review on appeal 
); V.LR. App. 
P. 22(m) 
(“Issues that were . . . not raised or objected to before the Superior Court . . . are deemed waived 
for the purposes of appeal.”) 
* Wilkinson’s 
brief cites several examples of statutory marital exceptions. (Appellant’s Br. 
19) However, Wilkinson’s 
argument concerning the unconstitutionality of a marital exception seemingly centers on 14 V.I.C. 
§ 1701(c). Yet, the 
conclusion that Wilkinson disputes in 14 V.I.C. 
§ 1701(c) comes after considerable evaluation of his brief which 
incorrectly references section 1701 and lacks an articulated prayer for relief. Wilkinson’s 
failure to clearly state which 
provision he challenges left this Court to presume that section 1701(c) was the debated statute since that was the one 
clearly mentioned in Wilkinson’s papers
Wilkinson v. People 
S. 
Ct. Crim. 
No. 2017-0018 
Dissenting Opinion 
Page 5 of 27 
{44 
In this case, the record fails to confirm that Wilkinson raised the constitutionality of section 
1701(c) at trial. 
“Although no special words, phrases, or commands are necessary to preserve an 
issue for appeal, the trial court must be placed on notice of the substantive issue.” Brown v. People, 
56 V.I. 695, 710 (V.I. 2012) (internal citations omitted). Without some indication that Wilkinson 
brought the constitutionality of section |701(c) to the trial court’s attention, the issue is waived on 
appeal. V.I.R. App. 
P. 4(h); V.ILR. App. 
P. 22(m) 
{45 
Because Wilkinson failed to dispute the constitutionality of section 1701{c) at trial, 
I 
review the issue only for plain error. Under Federal Rule of Criminal Procedure 52(b), “{a] plain 
error that affects substantial rights may be considered even though it was not brought to the court’s 
attention.” 
Elizee 
v. People, 
54 V.1. 
466, 
476 (V.I. 
2010) (citing FED. 
R. CRIM. 
P. 
52(b)). 
See 
Rodriguez v. People, No. 2015-0118, 2019 V.I. WL 2462630, 
at *18-19 (V.I. June 12, 2019) 
(“To 
establish plain error, 
[a defendant] must show an error, which was plain, that affected his 
substantial rights, i.e. 
the error must have been prejudicial [which means the error affected the 
trial’s outcome} 
If (the Court] determines that the error meets these requirements, [it] may 
grant relief in [its} discretion if the error seriously affects the fairness, integrity, or public reputation 
of judicial proceedings.”) (citations omitted); Williams 
v. People, 55 V.1. 
721, 728 (V.1. 
2011) 
(“For there to be plain error warranting reversal of the jury’s verdict, there must be (1) an error, 
(2) that is plain, and (3) that affects substantial rights 
If the action of the trial court satisfies 
these three elements, this Court will address the error only if it seriously affects the fairness, 
integrity and public reputation of judicial proceedings.”) (citations omitted) 
46 
I commence the analysis with a review of the Equal Protection Clause of the Fourteenth 
Amendment
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 6 of 27 
47 
The Equal Protection Clause of the Fourteenth Amendment states that no State shall deny 
to any person within its jurisdiction the equal protection of the law. Gallinger v. Becerra, 898 F.3d 
1012, 
1016 (9th Cir. 2018). Congress extended the Equal Protection Clause to the Virgin Islands 
in section 3 of the Revised Organic Act of 1954. People v. Simmonds, 58 V.1. 
3, 11 (V.I. 
Super. 
Ct. 2012). “The function of the Equal Protection Clause 
is simply to measure the validity of 
classifications created by state [and territorial] laws.” Jd. (citing San Antonio Ind. Sch. 
Dist. 
v 
Rodriguez, 411 U.S. 
1, 59-60 (1973)). 
“Equal Protection 
emphasizes disparity in treatment 
by a [government] between classes of individuals whose situations are arguably indistinguishable.” 
Id. 
(internal citations omitted). 
“The ‘Clause 
is only offended by laws that are invidiously 
discriminatory—only by classifications that are wholly arbitrary or capricious.’” /d. 
See Perry v 
Grenada Mun. Separate Sch. Dist., 300 F. Supp. 748, 750 (N.D. Miss. 1969) (“A state may classify 
people but 
the classification must have some purpose and must 
not contain 
the kind 
of 
discrimination against which the Equal Protection Clause affords protection 
”) (citations 
omitted) 
{48 
In analyzing equal protection claims, “our 
first step 
is 
to identify the state’s 
classification of groups.” Gallinger, 898 F.3d 
at 
1016. 
(citations omitted). 
See Eldridge 
v 
Bouchard, 645 F. Supp. 749, 752 (W.D. Va. 1986) (“The first step in any equal protection analysis 
is to determine the appropriate level of scrutiny.”). “When an equal protection violation is alleged 
based upon treatment of a suspect class (i.e. group of people identified by their race, alienage, or 
national origin) or involving a fundamental right (e.g. freedom of speech or religion), the court 
applies strict scrutiny. Under strict scrutiny, ‘a [s]tate must justify its decision by establishing that 
[legislation] was narrowly tailored to serve a compelling state interest.’” Burnette v. Bredesen, 566 
F. Supp. 2d 738, 746 (E.D. Tenn. 2008) (citations omitted)
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 7 of 27 
{49 
“A gender based discrimination is subject to a level of scrutiny somewhere between the 
level of ‘traditional’ equal protection analysis (minimal scrutiny) 
and the highest level of 
scrutiny (strict scrutiny) 
This intermediate level of scrutiny, which applies 
to gender 
classifications, 
[requires that gender classifications] serve important government objectives 
and [the classifications] must be substantially related to achieve those objectives.” Clark v. Ariz 
Interscholastic Ass'n, 695 F.2d 1126, 
1129 (9th Cir. 1982) 
{50 
“To withstand Fourteenth Amendment scrutiny, statutes 
that do 
not interfere with 
fundamental rights or single out suspect classifications must bear only a rational relationship to a 
legitimate state interest.” 
Richland Bookmart, Inc. 
v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002) 
“Under the rational basis test, a statutory classification violates the Equal Protection Clause, if it 
‘rests on grounds wholly irrelevant to the achievement of [any government] objective.’” 
Burnette, 
566 F. Supp. 2d at 746 
{51 
In this case, Wilkinson seems to challenge 14 V.L.C. 
§ 1701(c). See supra note 4. 
14 V.LC 
§ 1701(c) states “[s]pousal consent shall be an affirmative defense in the event that persons are 
legally married pursuant to the provisions of title 16, chapter 
1 of the Virgin Islands Code.” 
14 
V.1.C. 
§ 1701(c). Thus, the statute concerns neither a fundamental right nor a suspect classification 
Accordingly, we review the statute under the rational basis test. Richland Bookmart, Inc., 278 F.3d 
at 574; Burnette, 566 F. Supp. 2d at 746 
{52 
Noticeably, consent is an affirmative defense to rape in numerous jurisdictions other than 
the Virgin Islands. See Chase v. State, 681 S.E.2d 116, 
118-19 (Ga. 2009) (finding that victim’s 
consent is a defense to sexual assault even if the victim is enrolled in school and has reached or 
exceeded the age of consent which is 16 years old); Clifton v. Commonwealth, 468 S.E.2d 155, 
158 (Va. 
Ct. App. 
1996) (“In support of a consent defense, an accused may produce evidence of
Wilkinson v. People 
8. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 8 of 27 
circumstances, including conduct or statements by the victim, tending to prove consent. He may 
testify as to his observations or perceptions of statements or conduct by the victim suggesting 
consent.”) (citations omitted); Hatch 
v. United States, 
35 A.3d 1115, 
1116-17 (D.C. 2011) (“We 
also recognized in Russell that evidence of consent may be relevant to the issue of whether the 
defendant did in fact use force to engage the complainant in sexual activity. Consequently, we 
held, when the defendant has raised the affirmative defense, the court must instruct the jury that it 
may consider evidence of consent in determining whether the government has met its burden of 
proving the defendant's use of force beyond a reasonable doubt . . 
.”); Ordermann v. Livingston, 
No. 06-4796, 2008 WL 2073993, 
at * 
1 (E.D. 
La. May 14, 2008) (unpublished) (“Consent is an 
absolute defense in a sexual assault case.”) (citations omitted); State 
v. Knapp, 453 P.3d 1006 
1010 (Wash. 
Ct. 
App. 
2019) (“[T]he defense of consent should be treated similar to the alibi 
defense at issue in [State v.] Riker 
in that the defendant need only produce sufficient evidence 
to create a reasonable doubt as to the victim's consent.”) (citations omitted) 
{53 
In People v. Liberta, 474 N.E.2d 567, 570 (N.Y. 
1984), 
the New York Court of Appeals 
determined that martial exceptions to rape and sodomy laws were unconstitutional under the Equal 
Protection Clause because there was no rational basis to distinguish between rape perpetrated by 
married men versus rape caused by unmarried men. In that case, each disputed statute clearly stated 
neither could be violated by married men. “Section 130.35 of the Penal Law provides 
A male 
is guilty of rape in the first degree when he engages in sexual intercourse with a female 
by 
forcible compulsion.’ 
‘Female,’ for the purposes of the rape statute, is defined as ‘any female who 
is not married to the actor.’” 
/d. “Section 130.50 of the Penal Law provides 
that ‘a person is 
guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another 
person 
by forcible compulsion.’ ‘Deviate sexual intercourse’ is defined as ‘sexual conduct
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 9 of 27 
between persons not married to each other 
Id. 
“Thus, due to the 
‘not married’ language in 
the definitions of ‘female’ and ‘deviate sexual intercourse,’ there [was] a ‘marital exception’ for 
both forcible rape and forcible sodomy.” 
/d. As a result, the marital exception in Liberta excluded 
men who were married to their victims from committing rape or sodomy. See Merton v. State, 500 
So.2d 1301, 
1302 (Ala. Crim. App. 
1986) (explaining that statutes virtually identical to the ones 
in Liberta could not withstand constitutional scrutiny); Shunn v. State, 742 P.2d 775, 778 (Wyo 
1987) (stating that societal and statutory changes reject the reinstatement of the common law 
marital exception to rape because no rational basis exists for distinguishing between marital and 
non-marital rape); Castor v. People, 57 V.1. 482, 489 n.3 (V.1. 2012) (“Due, 
in part, to reports that 
one in seven married women or formerly married women had been raped by her husband, states 
began to eliminate the marital rape exception from their criminal laws during the 1980’s. By 2005, 
all fifty states had criminalized marital rape.”) (citations and internal quotation marks omitted) 
{54 
In this case, unlike the statutes in Liberta and Merton, 14 V.I.C. 
§ 1701(c) fails to exclude 
married men from committing rape. 
In fact, the statute only states that married men have an 
affirmative defense to the allegation if the charge is levied by a spouse as defined by title 16, 
chapter 
| of the Virgin Islands Code. Importantly, although a defendant is not required to put on a 
defense because the prosecution bears the burden of establishing every element of a crime, any 
suspect charged with rape may plead consent as an affirmative defense.> See Spicer v. Gregoire, 
194 F.3d 1006, 
1009 (9th Cir. 1999) (McKeown, 
J., 
concurring) (“Although 
‘forcible compulsion 
and ‘consent’ have some conceptual overlap, lack of consent is not an element of second degree 
5 
“The Supreme Court of the Virgin Islands 
‘has emphasized that affirmative defenses are all those which must be 
proven by the defendant and that affirmative defenses are waived unless pled in an answer.” 
Gerald v. R.J. Reynolds 
Tobacco Co., 
68 V.1. 
3, 
51 n.166 (V.I. Super. Ct. 2017)
Wilkinson v. People 
S. 
Ct. Crim. 
No. 2017-0018 
Dissenting Opinion 
Page 10 of 27 
rape, and requiring the defendant to prove consent does not run afoul of due process.”); Sandoval 
v. Acevedo, 996 F.2d 145, 
150 (7th Cir. 1993) (“[B]ut the law, 
as we have said, cannot be allowed 
to prevent a defendant from putting on a defense to what is after all a very serious charge. And 
consent is, of course, a defense to rape.); Teti v. Huron Ins. 
Co., 914 F. Supp. 
1132, 1139 (E.D 
Penn. 
1996) (“When prosecuting crimes involving sexual contact with another person, the law 
recognizes consent 
of the victim may negative certain elements 
of the offense, 
such 
as 
involuntariness.”). 
Accordingly, 
under 
equal 
protection 
review, 
section 
1701(c) 
passes 
constitutional muster because a state has authority to provide criminal defendants with affirmative 
defenses. See Caibaiosai v. Barrington, 643 F. Supp. 1007, 1011 (W.D. Wis. 1986) (“Once a state 
incorporates into a criminal statute the essential elements of a crime, it is essentially free to create 
or withhold affirmative defenses to that crime.”’); Harley v. Foltz, No. 85-1147, 
1985 WL 13973 
at *2 (6th Cir. 
Nov. 
11, 
1985) (“T]he state establishes the elements of the crime, and may 
recognize mitigating circumstances as a defense 
”); Carter 
v. 
Jago, 637 F.2d 449, 454 (6th 
Cir. 
1980) (“Patterson makes clear that the applicability of the reasonable doubt standard is 
dependent upon how a State defines the offense that is charged in a given case; unless expressly 
defined by statute, material elements do not include the nonexistence of a fact which, if proven, 
would constitute a statutory defense.”). 
Therefore, section 1701(c) does not violate the Equal 
Protection Clause because 
it rationally relates 
to the government’s objective to provide the 
criminally accused with affirmative defenses 
755 
As a second argument, the plain meaning of the statute governs its interpretation. 
The 
Virgin Islands Supreme Court has said “[t]he first step when interpreting a statute is to determine 
whether the language at issue has a plain and unambiguous meaning. 
If the statutory language is 
unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed. In
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 11 of 27 
analyzing a statutory scheme, we must give effect to every provision, making sure to avoid 
interpreting any provision in a manner that would render it—or any other provision-—wholly 
superfluous and without an independent meaning or function of its own. But even where a statutory 
scheme is plain and internally consistent, no statute should be read literally if such a reading is 
contrary to its objective [and] this Court must consider whether applying the statute’s literal 
language leads to 
absurd consequences or is otherwise inconsistent with the Legislature’s 
intent.” 
In re L. 
O. 
F., 
62 V.1. 
655, 661 (V.I. 2015) (citations omitted). See N.H. Lottery Comm'n 
v. Barr, 386 F.Supp.3d 132, 
148 (D. N.H. 2019) (“Most statutory text can be readily understood 
by a careful reader. 
In such cases, the court’s mission is clear: 
It must give the statute its plain 
meaning, 
Sometimes, however, words have multiple meanings even when read in context, and 
legislators fail to achieve syntactic precision 
In such cases, a court cannot blind itself to 
permissible sources of meaning. 
It must instead undertake a nuanced and comprehensive review 
of all relevant evidence to give the statute as a whole a 
fair reading.”); Othi 
v. Holder, 734 F.3d 
259, 
265 (4th Cir. 
2013) (“[W]e give statutory terms their ordinary, contemporary, common 
meaning 
To determine a statute’s plain meaning, we not only look to the language itself, but 
also the specific context in which the language is used, and the broader context of the statute as a 
whole.”) (internal citations, quotation marks, and other punctuation omitted); Lamie 
v. 
U.S. 
Trustee, 540 U.S. 
526, 534 (2004) (“[W]hen the statute’s language is plain, the sole function of 
the courts—at least where the disposition required by the text is not absurd—is to enforce it 
according to its terms.”) (citations omitted); United States v. Epskamp, 832 F.3d 154, 162 (6th Cir 
2016) (“*[W]e need proceed no further’ than the statute’s text and context in the broader statutory 
scheme. Nonetheless, ‘[e]xtrinsic materials have a role in statutory interpretation . . . to the extent
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 12 of 27 
they shed a 
reliable light on the enacting Legislature’s understanding of otherwise ambiguous 
terms.”’) (citations omitted) 
456 
As stated above, 
14 V.ILC. 
§ 
170I(c) states married men have an adroitly crafted 
affirmative defense to rape if the accuser is the defendant’s spouse. Thus, the provision fails to 
absolve married men from prosecution for rape as a marital exception does. Even if the statute 
were ambiguous, the legislative intent is exceedingly clear when one reviews the session laws that 
eliminated the language “and not the perpetrator’s spouse” from title 14 of the Virgin Islands Code 
Bill No. 30-0060, 30th Leg. (V.I. 2013). By deleting that language, the local Legislature followed 
dicta established by the Liberta court and other jurisdictions that eliminated marital exceptions 
from their rape statutes. Essentially, the plain language of the statute supports finding that section 
1701(c) is not a marital exception as asserted by Wilkinson and the majority, but merely an 
affirmative defense which married men can assert if the alleged victim is their spouse. See Hawkins 
v, State, 549 So.2d 552, 556 (Ala. Crim. App. 1989) (“Where the language of a statute is plain and 
unambiguous, and 
its meaning 
is obvious, 
this court must give effect 
to the legislature’s 
manifestation of its intent, as there is no room for construction of that statute.”’). Therefore, because 
the plain language of the statute is unambiguous and the legislative intent is sufficiently clear, 
I 
conclude 14 V.I.C. 
§ 1701(c) is not a marital exception 
957 
Lastly, Wilkinson asserted consent as a defense at trial. 
(J.A. 
973). Wilkinson’s use of 
consent at trial suggests he was not excluded from asserting the defense as his brief indicates 
Therefore, under equal protection, statutory interpretation, and Wilkinson’s use of consent as a 
defense, 
I find no plain error that affected Wilkinson’s rights nor prejudiced the trial’s outcome 
that warrants reversal of Wilkinson’s convictions on appeal 
B. 
14 V.I.C. 
§ 1701(c) is Constitutional under the Due Process Clause
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 13 of 27 
58 
Having found section 1701(c) constitutional under the applicable equal protection analysis 
and valid under statutory interpretation, 
I evaluate the provision under due process 
(59 
“The Fourteenth Amendment prohibits States—and this Territory—from depriving ‘any 
person of life, liberty, or property, without due process of law.’ Due Process requires that ‘an 
individual be given an opportunity for a hearing before he {or she] is deprived of any significant 
property interest 
[T]o state a procedural due process violation, a plaintiff must allege (1) an 
asserted individual interest [relating to] 
‘life, liberty, or property’ and (2) the [available] procedures 
denied him or her of ‘due process of law.’” 
George v. Plaskett, 232 F. Supp.2d 486, 489 (D.V.1 
2002) 
{60 
Historically, common law rape included a marital exception that allowed husbands to 
compel their wives to have sex without the threat of prosecution. Every state’s rape statute codified 
the marital exception and prevented husbands from being charged or convicted of raping their 
wives. 
Jessica Klarfeld, A Striking Disconnect: 
Marital Rape Law's Failure to Keep Up with 
Domestic Violence Law, 
48 AM. CRIM. 
L. REV. 
1819 (2011). 
In 1976, 
states began to remove 
marital exceptions from rape statutes and, by 1993, marital rape, like non-marital rape, was a crime 
in all fifty states. Jd. 
{61 
Locally, the Virgin Islands also had a marital exception until a 2013 legislative amendment 
Before the amendment, rape in the territory required the prosecution to prove the defendant used 
force or coercion to engage in sexual contact with a person who was not his spouse.® Rodriguez v. 
° Although the opinion focuses on spousal consent for first degree rape in 14 V.I.C. 
§ 1701(c), the elements listed in 
this statement are for aggravated rape under the former 14 V.I.C. 
§ 1708(1). This distinction is insignificant as the 
marital exception 
in the rape statute applied to every enumerated crime therein and Wilkinson challenges the 
affirmative defense of spousal consent in various provisions in the amended rape statute including first degree 
aggravated rape (14 V.ILC § 1700(f)), second degree aggravated rape (14 V.I.C. 
§ 1700a(e)), 
first degree rape (14 
V.I.C. 
§ 1701(c)), second degree rape (14 V.LC. 
§ 1702(c)); third degree rape (14 V.I.C. 
§ 1703(b)); and first degree
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 14 of 27 
People, No. 2015-0118, 2019 WL 2462630, 
at *20 (V.I. June 12, 2019). This meant that married 
men could not be charged or convicted of raping their wives. However, in 2013, the Virgin Islands 
Legislature deleted the phrase “who is not his spouse” from local rape law and added spousal 
consent as an affirmative defense to the rape statute. /d. 
462 
“An affirmative defense is established only when a defendant admits the essential facts of 
a complaint and sets up other facts in justification or avoidance.” Morrison 
v. 
Exec. Aircraft 
Refinishing, Inc., 
434 F. Supp. 2d 1314, 1318 (S.D. 
Fla. 2005). See Donohue v. Am. Isuzu Motors 
Inc., 
155 F.R.D. 
515, 
518 (M.D. 
Pa. 
1994) (“The difference between a general defense and an 
affirmative defense is that a general defense negates an element of the plaintiff’s prima facie case, 
while an affirmative defense excuses the defendant’s conduct even if the plaintiff is able to 
establish a prima facie case.”) (citations omitted); Crenshaw v. City of Wetumpka, Nos. 2:15-CV 
413-WKW& 2:15-CV-696-WKW, 2017 WL 4330776, 
at *3 (M.D. 
Ala. 
Sept. 
29, 2017) (“An 
affirmative defense raises matters extraneous to the plaintiff's prima facie case.) (citations 
omitted); Mark v. Labar, No. 08-80646-CIV, 2009 WL 909478, 
at *2 (S.D. 
Fla. 
Apr. 
1, 
2009) 
(“[{A]n affirmative defense means that even if all the plaintiff's allegations are true, the defendant 
cannot be found liable.”) (internal citations omitted) 
{63 
Although affirmative defenses are recognized by courts, copious records of debate exist 
regarding their application. 
Specifically, some jurisdictions place the burden of proof on the 
prosecution to refute certain affirmative defenses. Smart v. Leeke, 873 F.2d 1558, 1565 (4th Cir 
1989). 
However, the U.S. 
Supreme Court has said there 
is no general rule that requires the 
prosecution to dispel beyond a reasonable doubt all affirmative defenses a defendant may employ 
unlawful sexual contact (14 V.I.C. 
§ 1708(b)). (Appellant’s Br. 
19). The Virgin Islands Legislature renumbered and 
amended the rape statute in Act No, 7517 § 
1 (V.L. Reg. Sess. 2013)
Wilkinson v. People 
S. 
Ct. Crim. 
No. 2017-0018 
Dissenting Opinion 
Page 15 of 27 
Id. 
at 1563 (internal citations omitted). Moreover, several Supreme Court cases have cultivated 
distinct rules by which the constitutionality of affirmative defenses is determined 
64 
In Mullaney v. Wilber, 421 U.S. 684 (1975), the Court evaluated the constitutionality of a 
Maine law 
that required 
a defendant 
to mitigate murder 
to manslaughter by rebutting 
a 
presumption of malice. To do this, a defendant had to demonstrate he acted in the heat of passion 
under sudden provocation. At trial, the court instructed the jury “that if the prosecution established 
the homicide was both intentional and unlawful, malice aforethought was to be conclusively 
implied unless the defendant proved by a fair preponderance of evidence that he acted in the heat 
of passion under sudden provocation.” /d. 
at 686. The defendant appealed, claiming a denial of 
due process because he was required to negate malice aforethought, an essential element of murder, 
by proving he acted in the heat of passion. The U.S. Supreme Court agreed. 
It opined, that to satisfy 
due process, the prosecution must prove beyond 
a reasonable doubt every essential fact that 
constitutes a charged crime. /d. at 703-04 
65 
In Patterson v. New York, 432 U.S. 
197 (1977), the Court addressed the constitutionality 
of a defendant’s extreme emotional disturbance defense which reduced murder to manslaughter 
under New York 
law. 
The Appellant argued that forcing him 
to prove extreme emotional 
disturbance unconstitutionally shifted the prosecution’s burden of persuasion to him and violated 
the Due Process Clause of the Fourteenth Amendment. 
/d. at 201. The Court said the Constitution 
requires the prosecution to prove a defendant’s guilt beyond a reasonable doubt. 
/d. 
at 204. The 
Court also said it is constitutionally permissible to require a defendant to prove certain affirmative 
defenses. 
/d. at 211. The Court concluded due process was not violated if the defendant proved the 
defense by a preponderance of the evidence because extreme emotional disturbance constituted “a 
separate issue on which the [defendant] was required to carry the burden of persuasion.” /d. at 207
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 16 of 27 
Lastly, the Court clarified 
its Mullaney holding by pronouncing a “{s]tate must prove every 
ingredient of an offense beyond a reasonable doubt and it may not shift the burden of proof to the 
defendant by presuming that ingredient upon proof of the other elements of the offense.” /d. at 
215 
{66 
Summarizing these precedents, one obtains two dichotomous tenets 
by which 
the 
constitutionality of affirmative defenses is assessed. 
Both precepts require identification of a 
crime’s elements as well as the nature of an affirmative defense. Smart, 873 F.2d at 1581 (Philips, 
J., dissenting). First, if 
a defense negates an element of the crime, the burden of persuasion cannot 
be shifted to the defendant because due process is violated. 
/d. Second, if a defense wholly or 
partially excuses or justifies the defendant’s conduct independent of the crime’s elements, the 
burden of persuasion may be placed on the defendant without violating the Constitution. 
/d 
Therefore, “in presumption cases, like Mullaney, the state is improperly relieved of the burden of 
proving an essential element of the crime charged, and burden is unconstitutionally shifted to the 
defendant to disprove the element 
However, in affirmative defense cases, [like Patterson], the 
state bears the burden of proving beyond a reasonable doubt every element of the crime charged 
The defendant is required to prove a separate issue which may or may not overlap with proof of 
the alleged crime.” /d. at 1562 (citations omitted). See Thornton v. Solutionone Cleaning Concepts 
Ine., 
No. CIV F06-1455 AWI SMS, 2007 WL 210586, 
at *4 (E.D. Cal. Jan. 26, 2007) (explaining 
that several statutory provisions were not affirmative defenses because they failed to excuse 
conduct alleged 
in the complaint); 
White 
v, 
Arn, 
788 F.2d 338, 
347 (6th Cir. 
1986) (“[A]n 
affirmative defense excuses punishment for a crime the elements of which have been established 
and admitted.); Wood v. Marshall, 790 F.2d 548, 550 (6th Cir. 
1986) (“If an affirmative defense 
bears a relationship to an element of the charged offense, the burden of proof of that defense may
Wilkinson v. People 
S. 
Ct. Crim. 
No. 2017-0018 
Dissenting Opinion 
Page 17 of 27 
not be placed on the defendant.”) (citations omitted); Gov't. of the V.I. 
v. Richards, 44 V.I. 47, 50 
(V.I. 2001) (“[A] defendant may attempt to prove mistake of fact as an affirmative defense. This 
is slightly different, conceptually, in that the object is to prove some sort of justification or excuse 
for the offense.”) 
{67 
Importantly, “[cJonsent is, of course, a defense to rape.” Sandoval, 996 F.2d at 150. See 
Gov't. 
of the 
V.I. 
v. Joyce, 
210 Fed. 
Appx. 
208, 
209 (3rd Cir. 2006) (“Consent is an absolute 
defense to the crimes of rape in the first degree and unlawful sexual contact in the first degree.”); 
People v. Abreu, Nos. ST-09-CR-F291& ST-09-CR-F292, 2010 WL 7371470, 
at *3 (V.I. Super 
Ct. 
Oct. 
29, 2010) (“[T]o the extent the victim claims that there was some form of agreement 
between the parties, [the defendant] may have some evidence of consent which is a defense to 
first degree rape.”) 
(citations omitted); Scheiber v. Estep, No. 07-CV-00999-PAB-KMT, 2009 WL 
1965490, at *7 (D. Colo. July 7, 2009) (“Colorado law does recognize consent as an affirmative 
defense to crime of sexual assault.”) (citations omitted); Hernandez v. Cate, No. 1OCV2360-WQH 
(BLM), 2011 WL 3664410, 
at *7 (S.D. 
Cal. May 6, 2011) (“It is well-established California law 
that consent is a defense to forcible rape and forcible sodomy 
”) (citations omitted) 
68 
Based on the foregoing principles, I have established that affirmative defenses don’t violate 
due process if they excuse a defendant’s conduct and that consent is a defense to rape in most 
jurisdictions including the Virgin Islands. Now, I assess whether the affirmative defense of spousal 
consent as codified in the Virgin Islands rape statute comports with these constitutional precepts 
To do this, I first identify the elements of rape and the elements of consent as both are defined by 
Virgin Islands law and evaluate whether consent negates an element of rape so that the burden of 
disproving an element of the crime is unconstitutionally placed on the defendant. See White, 788 
F.2d at 343 (citing Patterson, 
432 U.S. 
at 201); 
Smart, 
873 F.2d at 1562 (citations omitted)
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 18 of 27 
Cervantes v. Small, No. CV 09-1539-GW (RNB), 2009 WL 6639280, 
at *16 (C.D. Cal. Nov. 
19 
2009) (stating that CALJIC No. 
1.23.1, 
a California model jury instruction, did not create 
a 
mandatory rebuttable presumption of no consent that shifted the burden of proof) (citations 
omitted); 
Caldwell 
v. 
Russell, 
181 
F.3d 731, 
740 (6th Cir. 
1999) (stating that 
“proof of an 
affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had 
committed the requisite elements of the crime”) 
{69 
In this case, Wilkinson was convicted of first degree rape, first degree unlawful sexual 
contact, and first degree assault. 
Essentially, the elements of first degree rape are (1) sexual 
intercourse or sodomy (2) accomplished by overcoming the victim’s resistance with force.’ First 
degree 
unlawful 
sexual 
contact 
requires 
(1) 
sexual 
contact 
(2) 
with 
another person 
(3) 
accomplished through force or coercion.’ First degree assault involves (1) the assault of a person 
by a perpetrator intending to commit one or multiple felonies including rape, sodomy, mayhem, 
robbery, or larceny. Unfortunately, the local rape statute lacks a definition for consent. However, 
local and federal cases offer insight about what the term signifies. See Williams v. People, 55 V.1 
721, 729-30 (V.I. 2011) (“The dictionary definition of consent is the following: [C]ompliance in 
or approval of what is done or proposed by another; speciflically]: 
the voluntary agreement or 
acquiescence by a person of age or with the requisite mental capacity who is not under duress or 
coercion and usu[ally] who has knowledge or understanding 
”) (citations omitted); Rodriguez 
v, People, 71 
V.I. 
577, 628 (V.I. 
2019) (‘“‘Force’ is defined as ‘[p]ower, violence, or pressure 
directed against a person’ . . . ‘force’ includes physical restraint, while ‘coercion’ is defined as ‘the 
7 See supra note | 
8 See supra note 3 
° See supra note 2
Wilkinson v. People 
8. 
Ct. Crim. 
No. 2017-0018 
Dissenting Opinion 
Page 19 of 27 
use of express or implied threats of violence or reprisal . . . or other intimidating behavior that puts 
a person in immediate fear of consequence to compel that person to act against his or her will.’”) 
(citations and internal punctuation marks omitted); Cervantes, 2009 WL 6639280, at *15 (“([T]he 
word ‘consent’ means positive cooperation in an act or attitude as an exercise of free will. The 
person [consenting] must act freely and voluntarily and must have knowledge of the nature of the 
act or transaction involved.”); United States v. Cobenais, 868 F.3d 731, 
741 (8th Cir. 2017) (“[T]he 
sexual act must be accomplished 
‘against the will’ of the victim; this means that the victim did not 
want to engage in the act.”); Watson v. Dugger, 945 F.2d 367, 370 (1 1th Cir. 1991) (“An individual 
consents to something by giving some affirmative indication of their approval, either verbally or 
through their acts. Consent, therefore, requires some kind of overt gesture sanctioning or endorsing 
the proposed conduct.”); Brown v. Franklin, No. CIV-09-290-C, 2009 WL 3415300, 
at *5 (W.D 
Okla. Oct. 
16, 2009) (stating the applicable rape law required a finding of force or violence and 
concluding, if there was mutual consent, the defendant could not be guilty of rape.) 
{70 
Despite the illumination the consent definitions provide, the crux of the argument of 
whether consent, as an affirmative defense, is constitutional turns on whether lack of consent is an 
element of a charged crime. 
If it is, a state may not require a defendant to prove consent without 
violating due process. See Harley, 1985 WL 13973, 
at *2 (“[T]he state establishes the elements of 
the crime, and the state may recognize mitigating circumstances as 
a defense without being 
required to prove them 
In Michigan, lack of consent is not an element of the crime of third 
degree criminal sexual conduct that the state is required to prove 
Consent may be raised by 
the defendant as an affirmative defense 
There is no constitutional requirement that a state 
make lack of consent an element of a rape offense 
The state may place the burden of proving 
affirmative defenses on the defendant 
Michigan allows the defendants to raise consent as an
Wilkinson v. People 
S. 
Ct. Crim. 
No, 2017-0018 
Dissenting Opinion 
Page 20 of 27 
affirmative defense 
) (citations and internal punctuation marks omitted); Allen 
v. Redman, 
858 F.2d 1194, 
1198-99 (6th Cir. 
1988) (explaining that sanity was not an element of assault and 
due process was not violated by requiring the defendant to establish insanity as an affirmative 
defense); Richards, 44 V.I. 
at 49 (explaining that 
it would be unconstitutional to compel the 
defendant to prove a mistake of fact to negate intent if intent was an element of statutory rape); 
Caibaiosai, 643 
F. 
Supp. 
at 1010 (explaining that a causal connection between intoxication and 
the death of another was not an element of vehicular homicide that would violate due process if a 
defendant established the victim’s death would have occurred even if the defendant was sober); 
Wood, 790 F.2d at 550 (explaining that insanity, as an affirmative defense, did not negate the 
voluntariness or the mens rea of aggravated murder or aggravated robbery); Govt. of the V.I. 
v 
King, 31 V.1. 78, 84-85 (V.I. 
1995) (explaining that the clause “unless authorized by law” 
was not 
an element of possession of a firearm that would violate due process if a defendant proved, as an 
affirmative defense, his possession of a firearm was authorized by law) 
{71 
In this case, lack of consent is not an element of any crime for which Wilkinson was 
convicted. Accordingly, under due process, 14 V.I.C. 
§ 1701(c) withstands constitutional scrutiny 
because it does not require a defendant to negate an element of a rape charge that the state must 
prove beyond a reasonable doubt 
C. 
Wilkinson’s Unlawful Sexual Contact Conviction Must be Vacated on Remand 
472 
~~ Finally, Wilkinson contends the Superior Court violated 14 V.ILC. 
§ 104 when it merged 
and stayed his conviction for 14 V.I.C. 
§ 1708(1), unlawful sexual contact, rather than vacate it in 
accord with our decision in Titre. Accordingly, because this Court and the People both agree with 
Wilkinson, I would opt to remand this matter to the Superior Court to vacate Wilkinson’s unlawful 
sexual contact conviction pursuant to the holding in Titre. See Brewer v. Sch. Bd. of City of Norfolk
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 21 of 27 
Va., 
349 F.2d 414 (4th Cir. 
1965) (explaining that remand to the District Court for further 
consideration in light of recent decisions in this and other courts is proper) 
{73 
In Titre, Appellant Ralph Titre argued that the Superior Court erred when it failed to merge 
and stay his concurrent sentences on various convictions and when it merged and stayed sentences 
on other convictions but permitted those convictions to remain on his record.'° Titre, 70 V.1. 
at 
800-06. The Superior Court sentenced Titre on counts three, four, and ten. 
It imposed a sentence 
of twenty-five years for second degree murder (count three), fifteen years for the use of an 
unlicensed firearm during the commission of second degree murder (count four) which was to run 
concurrently with count three, and five years for the destruction of evidence (count ten) also to run 
concurrently with count three. 
/d. 
at 801. 
On the remaining charges, the Superior Court merged 
counts five, seven, and nine with count three and stayed those sentences. 
/d. Lastly, the court 
merged counts six and eight with count four and stayed those sentences. Jd. 
474 
~~ 
I begin the analysis by examining the two distinct provisions implicated in 7itre- 
The 
Double Jeopardy Clause of the Fifth Amendment and the Virgin Islands Double Jeopardy law 
found in section 104 of title 14 
75 
The Double Jeopardy Clause of the Fifth Amendment states no person shall “be subject for 
the same offense to be twice put in jeopardy of life or limb.” Williams v. People, 56 V.1. 821, 831 
(V.I. 
2012) (citations omitted). 
Generally, when 
a defendant’s actions violate two different 
'© The jury convicted Titre of nine charges: 
unauthorized use of an unlicensed firearm during the commission of a 
first-degree murder in violation of 14 V.I.C. 
§ 2253(a) (count two); second-degree murder in violation of 14 V.1.C. §§ 
921, 922(b) (count three); unauthorized use of an unlicensed firearm during the commission of second-degree murder 
in violation of 14 V.LC. 
§ 2253(a) (count four); first-degree assault in violation of 14 V.I.C. 
§ 295(1) (count five); 
unauthorized use of an unlicensed firearm during the commission of a first-degree assault in violation of 14 V.LC. 
§ 
2253(a) (count six); third-degree assault in violation of 14 V.I.C. 
§ 297(4) (count seven); unauthorized use of an 
unlicensed firearm during the commission of a third-degree assault in violation of 14 V.I.C. 
§ 2253(a) (count eight); 
reckless endangerment in the first degree in violation of 14 V.I.C. 
§ 625{a) (count nine); and destruction of evidence 
in violation of 14 V.LC. 
§ 1506 (count ten)
Wilkinson v. People 
8. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 22 of 27 
criminal statutes, the Double Jeopardy Clause declares he cannot be sentenced for the same offense 
or for the lesser and greater included infractions of the same predicate offense. 
/d. 
In Blockburger 
v. United States., 
284 U.S. 
299, 304 (1932), 
the United States Supreme Court delineated a test to 
ascertain if two crimes were the same. “[W]here the same act or transaction constitutes a violation 
of two distinct statutory provisions, the test to be applied to determine whether there are two 
offenses or only one, is whether each provision requires a proof of fact which the other does not.” 
Id. However, the Blockburger test “is a rule of statutory construction, and because it serves as a 
means of discerning [legislative] purpose[,] the rule should not be controlling where, for example, 
there 
is 
a clear indication of contrary legislative intent.” Williams, 56 V.I. 
at 831 
(citations 
omitted) 
476 
Typically, an accused can be charged with multiple criminal counts emanating from a 
single offense. Double jeopardy is only triggered when a defendant is punished for multiple crimes 
stemming from a single event not when he is charged with them. State v. Brown, 178 P.3d 878, 
881 (Ariz. 
Ct. App. 2008). Under double jeopardy, when a defendant is convicted of the multiple 
counts that are identical or when one crime is the lesser included charge of another, the convictions 
are merged and the defendant is only sentenced for one offense. Brooks v. State, 98 A.3d 236, 258 
(Md. 
2014). 
Additionally, when a greater and lesser included scenario occurs, a court usually 
imposes sentence on the offense carrying the most severe penalty after merger. Commonwealth. 
v 
Everett, 705 A.2d 837, 839 (Pa. 
1998). Similarly, 
if an appellate court identifies a double jeopardy 
violation on appeal, the remedy requires retention of the conviction with the most serious penalty 
and vacatur of the other sentences on which the violation is based. Scroggs v. State, 396 S.W.3d 
1, 
17 (Tex. 
Ct. App. 2010)
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 23 of 27 
{77 
| When charges are vacated, “the effect is to nullify the judgment entirely and place the 
parties in the position of no trial having taken place 
United States v. Williams, 904 F.2d 7, 8 
(7th Cir. 
1990) (citing United States v. Lawson, 736 F.2d 835 (2nd Cir. 
1984)); 
“thus a vacated 
judgment is of no further force or effect.” /d. (citing Simpson v. Motorists Mut. Ins. Co., 494 F.2d 
850, 854 (7th Cir. 
1974)). 
However, in 
a double jeopardy context, “[when] convictions are 
reversed, the proper procedure is not to vacate the underlying convictions, but only the sentence, 
and to remand for further proceedings and resentencing.” 
/d. (citing United States v. Woodward, 
726 F.2d 1320, 1328 (9th Cir. 
1983)). Yet, in some instances, both a conviction and its requisite 
sentence are vacated according to United States v. Ball, 470 U.S. 
856, 860-61 (1985). 
In Ball, the 
Supreme Court reversed a Court of Appeals judgment on double jeopardy grounds and remanded 
with instructions to the District Court 
to vacate one of the defendant’s convictions and 
its 
concurrent sentence because Congress did not intend punishment for both illegally possessing and 
illegally receiving a firearm. The Court in Bal/ opined that a second conviction does not evaporate 
simply because its sentence is concurrent; the additional conviction has potential adverse collateral 
consequences like a delay in parole eligibility or an increased sentence under a recidivist statute 
Id. 
at 864-65. 
Therefore, when a case violates double jeopardy, there are apparently various 
resolutions to address a particular situation 
{78 
Despite federal double jeopardy rules, states may provide more protection for double 
jeopardy violations in local double jeopardy statutes. 
For example, although federal courts have 
stated increased punishments on remand of vacated sentences do not offend double jeopardy, 
California’s double jeopardy statute prohibits increased punishment on remand albeit with noted 
exceptions. People 
v. 
Vizcarra, 
186 Cal.Rptr.3d 637, 
650 (Cal. 
Ct. 
App. 2015); Compare with
Wilkinson y. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 24 of 27 
Bullington v. Missouri, 451 U.S. 
430, 431 (1981); North Carolina v. Pearce, 395 U.S. 
711, 
726 
(1969) (overruled on other grounds) 
{79 
Locally, the Virgin Islands double jeopardy statute is codified in 14 V.I.C. 
§ 104. Section 
104 proclaims “an act or omission which is made punishable in different ways by different 
provisions of this Code may be punished under any such provisions but, in no case, may it be 
punished under more than one. An acquittal or conviction and sentence under any one bars a 
prosecution for the same act or omission under any other.” By its terms, section 104 prohibits 
multiple punishments when a defendant’s actions within a single occurrence violate various local 
laws. However, the prohibition does not apply when the legislature intends to impose multiple 
punishments for certain infractions even when those infractions occurred in a single transaction 
Essentially, where double jeopardy under the Fifth Amendment targets identical crimes, section 
104 focuses on all crimes emanating from 
a single transaction. 
Thus, section 
104 allows 
a 
defendant to be charged and convicted of multiple crimes arising from a single transaction, but 
declares that a defendant can only be sentenced for one offense unless the legislature intended 
otherwise. Williams, 
56 V.I. at 832 
80 
Section 104’s interpretation correlates to the interpretation of California’s double jeopardy 
statute because the local law is based on California’s double jeopardy provision. 
In People 
v. 
Pearson, 795 P.2d 595, 599-602 (Cal. 
1986), California’s Supreme Court opined the state’s double 
jeopardy statute (section 654) required state courts to sentence defendants for one crime and stay!! 
convictions and/or sentences for secondary crimes that were completed in a single transaction or 
'| 
“A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order 
The word execution does not necessarily mean death penalty; it refers to imposition of whatever judgment is being 
ee 
Stay of execution definition, Wikipedia, http://en.wikipedia.org/wiki/Stay_of execution (last visited July 6,
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 25 of 27 
act. This procedure prevented defendants from being exposed to harsher sentences under recidivist 
or enhancement statutes. 
In /n re Pope, 237 P.3d 552, 557 (Cal. 2010), the court said, if the primary 
conviction or sentence was reversed on appeal or vacated through a habeas corpus proceeding, the 
prosecution could attempt to reinstate a stayed conviction or sentence so a defendant did not 
receive a windfall 
{81 
With those principles in mind, the Court turned to the issues Titre cited in his brief. Titre 
asserted the concurrent sentences on counts three, four, and ten violated the Double Jeopardy 
Clause of the Fifth Amendment. We disagreed. We held the Double Jeopardy Clause is only 
implicated when a defendant faces concurrent sentences for the same charge or when one offense 
is a lesser included transgression of another which was not the case with Titre’s first issue. 
Titre, 
70 V.I. 
at 806-08. Titre also argued the court violated federal and local Double Jeopardy when it 
merged counts six and eight with count four and when it merged counts five, seven, and nine with 
count three. We reasoned that, under federal Double Jeopardy, Titre’s allegations were correct 
regarding the merger of counts six and eight with count four because the People did not have to 
prove any additional facts to convict Titre of counts six and eight once they had sufficient facts to 
establish count four; basically, counts six and eight were lesser included charges of count four and, 
pursuant to the Blockburger Test, those convictions should have been vacated. /d. Similarly, under 
federal Double Jeopardy, counts five, seven, and nine did not require the People to prove any 
additional facts to convict Titre of those counts once the People had proof beyond a reasonable 
doubt to convict him of count three. 
/d. Therefore, under the Blockburger test, Titre’s convictions 
on counts five and seven should have been vacated rather than merged and stayed as the Superior 
Court did. /d.
Wilkinson v. People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 26 of 27 
{82 
However, Titre’s conviction on count nine did not violate federal Double Jeopardy because 
the People had to prove the act of reckless endangerment occurred in a public place, which was 
not an element of the other charges. 
/d. Yet, Titre’s conviction on count nine violated 14 V.I.C. 
§ 
104 because it occurred as part of a single course of conduct. Accordingly, the conviction on count 
nine should have merged and stayed with the conviction on count three. Although that is precisely 
what the Superior Court did, the Virgin Islands Supreme Court found the disparity in remedial 
options for federal and local double jeopardy violations-merger and stay (the old rule declared in 
Williams) and vacatur (the federal rule pronounced in Ba//) to be tedious and confusing. Therefore, 
the Virgin Islands Supreme Court replaced merger and stay with vacatur as the proper procedure 
for 14 V.L.C. 
§ 104 violations 
{83 
In this case, Wilkinson’s trial was decided before our decision in Titre.'* Although the 
Superior Court properly merged and stayed Wilkinson’s unlawful sexual contact conviction with 
his first degree rape conviction pursuant to former rule because both charges emanated from a 
single course of conduct, the Virgin Islands Supreme Court’s holding in Titre requires the Superior 
Court to revise Wilkinson’s convictions so they conform to the new rule. See Jn re Sea Ray Boats 
Inc., 
695 Fed. Appx. 543, 544 (Fed. 
Cir. 2017) (Newman, 
J., dissenting) (“When confronted with 
a change of law, the judicial role is to comply with the change.”); Elec. Privacy Info. 
Ctr. 
v. 
U.S. 
Dep't. of Homeland Sec., 
811 
F. 
Supp. 2d 216, 227 (D.D.C. 2011) (“T]he Circuit explained that 
it had ‘allow[ed] correction of substantive legal errors during the appeal period’ 
in the ‘unique 
situation where the controlling law of the circuit had changed between the time of judgment and 
'* The Superior Court issued its judgment in People v. Wilkinson, Super. 
Ct. Crim. No. 0062/2015, in February 2017 
whereas the Virgin Islands Supreme Court published its decision for Titre v. People, S. 
Ct. Crim. 
No. 2017-0043, in 
January 2019 almost two years after the Superior Court’s Wilkinson decision
Wilkinson v, People 
S. 
Ct. Crim. No. 2017-0018 
Dissenting Opinion 
Page 27 of 27 
the time of the motion.’”) (citations omitted); Cent. Power & Light Co. 
v. 
U.S., 639 F.2d 1104, 
1106-07 (Sth Cir. 
1981) (‘The general rule concerning the effect of a change of law during the 
pendency of judicial review is that an appellate court is to apply the law in effect at the time it 
renders its decision unless doing so would result in manifest injustice or there is statutory direction 
or legislative history to the contrary.”). Therefore, 
I would remand this matter to the Superior Court 
with instructions to vacate Wilkinson’s unlawful sexual contact conviction pursuant to the Court’s 
decision in Titre 
IV. 
CONCLUSION 
“84 
| conclude that Wilkinson waived the issue of whether 14 V.I.C. 
§ 1701{c), the marital 
exemption, conforms to the Constitution. Nonetheless, 
I conclude that section 1701(c) does not 
violate either the Equal Protection Clause or the Due Process Clause of the U.S. 
Constitution 
Finally, 
| would remand this matter to the Superior Court with instructions to vacate Wilkinson’s 
unlawful sexual contact conviction pursuant to our holding in Titre 
Dated this 28th day of January 2025 
j 
g 
‘ 
AaMhonit 
Associate Justice 
ATTEST 
VERONICA J. HANDY, ESQ 
Clerk of the Court 
By: 
/s/ Reisha Corneiro 
Deputy Clerk II 
Dated: January 28, 2025