436 Mass. 132 | Mass. | 2002
The plaintiffs challenge two provisions of the Commonwealth’s “Crimes against Chastity, Morality, Decency and Good Order,” which prohibit the “abominable and detestable crime against nature,” G. L. c. 272, § 34, and “any unnatural and lascivious act with another person,” G. L. c. 272, § 35.
The defendants — the Attorney General and the district attorneys for the Northern and Suffolk districts — stipulated that their offices will not prosecute anyone under the challenged laws absent probable cause to believe that the prohibited conduct occurred either in public or without consent. This stipulation comports with the law: Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), established that “consensual conduct in private between adults is not prohibited by § 35.” Commonwealth v. Ferguson, 384 Mass. 13, 16 (1981), quoting Commonwealth v. Scagliotti, 373 Mas. 626, 628 (1977), explained that the purpose of § 35 is “to prevent the ‘possibility that the defendant’s conduct might give offense to persons present in a place frequented by members of the public’ .... However, the statute is not designed to punish persons who desire privacy and who take reasonable measures to secure it.” This rationale applies equally to the “crime against nature,” and we now clarify that our holdings in the Balthazar and Ferguson cases concem-
The Act provides that this court “may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen.” G. L. c. 231A, § 1. Although the Act’s purpose is remedial and it is to be liberally construed, G. L. c. 231 A, § 9, if there is no actual controversy, then declaratory relief is not available. See Wakefield v. Attorney Gen., 334 Mass. 632, 635 (1956). An actual controversy exists where there is:
With the exception of Gay & Lesbian Advocates & Defenders (GLAD),
“a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation.”
In Bunker Hill, supra, prior to exhibition, distribution, or any threat of prosecution, the plaintiff sought a declaration that a film was not obscene and that it would not be subject to prosecution if it exhibited or distributed it. Although the plaintiff had alleged that the film depicts “explicit sexual congress,” and that some theatre owners and distributors of films depicting such scenes had been prosecuted, the allegations were “insufficient and too general for a judge to conclude that an actual controversy exists under the obscenity statute.” Id. at 144, 145. The request for declaratory relief was denied as nothing more than a request for an advisory opinion, to which parties are not entitled. See id. at 145, and cases cited.
The parallel between Bunker Hill and the present case is compelling. The only potentially disputed issue in this case is whether the plaintiffs’ conduct occurs in public or in private. Because a “place may be public at some times and under some circumstances, and not public at others,” Commonwealth v. Ferguson, supra at 16, such determinations are for a fact finder. See Commonwealth v. Scagliotti, 373 Mass. 626, 628-629 (1977). The “essential query” for determining whether the prohibited acts occur in public is:
“whether the defendant intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons. . . . Conduct is not established as public merely because another person actually observes the conduct. . . . The Commonwealth must prove that the likelihood of being observed by casual passersby must have been reasonably foreseeable to the defendant, or stated otherwise, that the defendant acted upon an unreasonable expectation that his conduct would remain secret.” (Citations omitted.)
Commonwealth v. Ferguson, supra. The plaintiffs’ stipulation that they commit these acts in their residences, vehicles parked in a parking lot, wooded outdoor areas, and secluded areas of public beaches, is too general to permit us to conclude that
The plaintiffs argue that they have met the actual controversy requirement simply by bringing a facial challenge to the validity of the statutes, relying on District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980). Their reliance is misplaced. In Watson, the statute at issue provided for capital punishment and the defendants were four men awaiting trial for murder in the first degree, at risk of being put to death. Id. at 649-650. There was no question that an actual controversy existed in that case. See id. at 660. See also Benefit v. Cambridge, 424 Mass. 918, 921-922 (1997) (real dispute exists where plaintiff arrested numerous times and subject to continuing likelihood of prosecution); Commonwealth v. Baird, 355 Mass. 746, 755 (1969) (defendant’s arrest and prosecution demonstrated actual controversy such that Act would have been available). Cf. Bunker Hill, supra at 145 (affirming dismissal of challenge to obscenity statute under Declaratory Judgment Act for lack of actual controversy).
We remand the case to the county court for dismissal of the complaint.
So ordered.
Our cases have construed the “crime against nature” to mean sodomy, encompassing anal penetration and bestiality, see Commonwealth v. Gallant, 373 Mass. 577, 587 (1977), and “unnatural and lascivious act[s]” to include oral-genital and oral-anal contact, see Commonwealth v. Balthazar, 366 Mass. 298, 303 (1974).
GLAD is an organization dedicated to the legal rights and interests of lesbians, gay men, and bisexuals, and seeks to challenge the constitutionality of the challenged laws on behalf of its donors and members to spare them the stigma associated with being charged with violating these laws. Because of our disposition of this case, we need not address GLAD’s claim to representative standing. See Slama v. Attorney Gen., 384 Mass. 620, 624 (1981) (“Representative standing is generally limited to cases in which it is difficult or impossible for the actual rightholders to assert their claims”).
