State v. Hollenbeck
53 A.3d 591
N.H.2012Background
- Hollenbeck, a licensed psychologist, treated the complainant in 2007.
- Less than a year after termination, the two engaged in a sexual relationship.
- In April 2010, he was charged with 30 counts of AFSA for sexual penetration within one year of termination.
- Indictments framed the conduct as violating RSA 632-A:2,1(g)(1) by acting in ways not ethically recognized.
- The defendant moved to dismiss, arguing RSA 632-A:2,1(g)(1) violates state and federal substantive due process by criminalizing private sexual conduct of consenting adults; trial court agreed; appellate review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of challenge to RSA 632-A:2,1(g)(1) | Hollenbeck asserts facial and as-applied challenges. | State contends a meaningful distinction between facial and as-applied challenges is required. | Facial challenge maintained; as-applied treated as facial for this case. |
| Existence of a fundamental right to private consensual sex | Lawrence recognized a protected liberty interest in private consensual sex. | Lawrence does not extend to all forms of sexual activity; this case involves therapist–former client. | No broad fundamental right; Lawrence does not invalidate this statute. |
| Rational basis review of RSA 632-A:2,1(g)(1) | Statute burdening private consensual sex is not rationally related to a legitimate interest. | Statute rationally relates to protecting vulnerability and professional integrity. | Statute rationally related to legitimate government interests; facial challenge fails. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (recognizes protected liberty to engage in private consensual sex; balancing approach)
- Carel v. United States, 668 F.3d 1211 (10th Cir. 2011) (facial vs as-applied challenges; treatment of as-applied under facial challenge when facts are not case-specific)
- Salerno, 481 U.S. 739 (1987) (facial challenge standard for overbreadth)
- Furgal, 161 N.H. 206 (2010) (state interest and rational basis in facial challenges under L.H.)
- Haas, 155 N.H. 612 (2007) (rational basis review applicable when no fundamental right)