Lead Opinion
Kevin Anderson was convicted in 1993 of first-degree rape and sodomy under Oregon laws that prohibit having sexual intercourse with a person “incapable of consent by reason of mental defect.” Or.Rev.Stat. §§ 163.375, 163.405 (the “sex crimes statutes”). He appeals the denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. He urges two points: (1) the trial court unconstitutionally excluded evidence of the victim’s sexual history and reputation under Oregon’s rape shield law; (2) the State of Oregon convicted him under an unconstitutionally vague statute. Neither point has merit, and we affirm.
I. Background
The facts of the case were largely undisputed at trial. The victim (hereinafter “JH”) is a 28 year-old moderately retarded woman. Psychiatric evaluators have placed her level of emotional maturity at the six- to eight-year-old level; her communication skills at the five- to seven-year-old level; her adaptive functioning level in the “severely retarded range”; and her overall intellectual functioning level in the “moderately retarded range.” Her hearing, vision, and speech are impaired.
In the past, JH had had two steady relationships with men that involved some sexual activity. Anderson testified that he had seen JH dancing “suggestively” with men at bars. He had noticed that JH had difficulty speaking and surmised “that maybe her tongue was missing or some part of her tongue.” Anderson further testified that the sexual encounter at issue here was not their first; he stated that JH had initiated sexual intercourse on one pri- or occasion. Anderson claimed that the second sexual encounter, which resulted in his arrest and conviction and this appeal, was consensual, and that JH again initiated intercourse.
Before trial, Anderson filed a motion to offer evidence of JH’s sexual history and reputation to rebut the State’s allegation that by reason of mental defect she was incapable of consenting to sexual intercourse. The evidence consisted primarily of statements from various individuals describing her sexual history, purported promiscuity, and public displays of sexual acts. The trial court allowed some evidence of JH’s sexual history (specifically her sexual activity with former boyfriends and the previous encounter with Anderson), but excluded reputation testimony and observations of her behavior that failed to shed light on her ability to
The jury convicted Anderson, and he appealed to the Oregon Court of Appeals, challenging the evidence exclusion and arguing that the sex crimes statutes were unconstitutionally vague. The Court of Appeals rejected Anderson’s evidence argument and refused to rule on the vagueness claim. The Oregon Supreme Court denied review. Anderson’s petition for post-conviction relief at the state level was unsuccessful, as was his federal habeas petition at the district court.
II. ■ Discussion
A. Evidentiary Rulings
Anderson challenges as constitutionally flawed the trial court’s exclusion of graphic evidence of JH’s sexual history. Oregon Evidence Rule 412 states that evidence of the past sexual behavior of an alleged victim such crime is not admissible unless it (a) relates to the motive or bias of the alleged victim; (b) is necessary to rebut or explain scientific or medical evidence offered by the state; or (c) is otherwise constitutionally required. Or.Rev.Stat. § 40.210, (2)(b).
Taking this rule into account, the trial court admitted evidence of JH’s sexual activity with at least two other men, her previous sexual encounter with Anderson, and testimony of witnesses who described her public acts of seductive behavior. The court excluded the following: testimony that JH was a “cat in heat”; reports from a counselor who worked with JH “to try to resolve problems with her sexuality”; testimony from her former boyfriend who described her sexual drive as “excessive”; testimony from two community members recounting how they witnessed JH rubbing her body against men, grabbing their crotches, and picking up men on street corners.
The trial court exercised proper discretion in limiting the more defamatory evidence. In Michigan v. Lucas,
Here, the court admitted evidence of JH’s prior sexual experience, testimony that she received sexual counseling, and other testimony regarding her public displays of sexual affection. It refused to admit evidence of a more demeaning nature that characterized JH as a wanton and promiscuous woman. The court’s evi-dentiary rulings properly balanced Anderson’s right to inform the jury of JH’s past sexual activity (evidence that was relevant to his affirmative defense and to JH’s ability to consent) against the importance of protecting her from unnecessary invasions of privacy.
B. Statutory Vagueness Claim
1. Procedural Default
In addition to his evidentiary claim, Anderson argues on appeal that he was prosecuted under unconstitutionally vague criminal statutes. Because Anderson did not raise this claim at trial, the district court ruled the claim procedurally defaulted under Palmer v. State of Oregon,
Under Oregon’s post-conviction statute, a defendant’s failure to raise a matter at trial “shall not affect the availability of [post-conviction] relief.” Or.Rev.Stat. § 138.550(1). In Palmer II, the Oregon Supreme Court interpreted this statute to mean that a defendant could not raise an issue during post-conviction proceedings that was not raised at trial, unless the defendant also asserted an inadequate assistance of counsel claim. See
The district court’s ruling was in error. Anderson’s purported default occurred before the state supreme court decided Palmer II. At the time of Anderson’s purported default, Palmer v. State of Oregon,
Nothing in [the post-conviction statute] requires petitioner to establish that trial or appellate counsel were inadequate in order to raise a constitutional challenge to the criminal statute for the first time in post-conviction proceedings.
Palmer I,
The respondent urges this court to hold that at the time of Anderson’s trial, the prevailing, established rule was that a defendant could not raise an issue during post-conviction proceedings that he did not raise at trial. The respondent’s argument fails. The holding in Palmer I indicates the rule was not clear or consistently applied. Although the Oregon Supreme Court had issued a holding similar to Palmer II in North v. Cupp,
We hold that Anderson’s vagueness claim is not procedurally defaulted, and we now turn to its merits.
2. Statutory Defect
“A statute is void for vagueness if it fails to ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.’ ” Free Speech Coalition v. Reno,
a. Notice Test
The notice test of vagueness looks at the “very words” of the statute in ques
Anderson bases his notice argument on his belief that JH consented to sexual intercourse. Anderson claims that he had no reason to believe his consensual acts with JH were illegal because he observed her appearing “real loose” and “quite experienced” on previous occasions. Anderson’s mistaken evaluation of JH’s ability to consent to sexual intercourse has no bearing on whether Oregon’s sex crimes statute is vague and thus unconstitutional. The sex crimes statute is clear on what it prohibits: sexual intercourse with a person “incapable of consent by reason of mental defect.” Or.Rev.Stat. §§ 163.375,163.405.
The proper place for Anderson’s scien-ter argument was at trial, in the form of an affirmative defense. See State v. Phelps,
b. Arbitrary Enforcement Test
A statute is vague if it does not provide explicit standards to those who apply them, so as to avoid arbitrary and discriminatory enforcement. United States v. Harris,
Anderson does not argue that the language of the statute lacks precision or definiteness in a way that “allows law enforcement officials to exercise their discretion.” Free Speech Coalition,
Anderson’s argument sounds in selective prosecution, rather than an arbitrary enforcement. Because Anderson did not raise a selective prosecution claim at any point during his trial, direct appeal, post-conviction proceedings, and habeas challenge, we decline to consider the claim in the present habeas appeal.
Anderson’s vagueness challenge fails on the merits.
3. Implications of Lawrence v. Texas
At oral argument, Anderson argued that the recent Supreme Court holding in Lawrence v. Texas,
Nor in the context of this case does Lawrence satisfy the Teague v. Lane,
III. Conclusion
While the district' court erred by ruling that Anderson had procedurally defaulted his vagueness challenge, we affirm the denial of the petition .because the statutory scheme under which he was prosecuted was not unconstitutionally vague. Anderson’s evidentiary objections raise no substantial federal question. No other constitutional defects in the prosecution or in the trial have been preserved in this record.
Concurrence Opinion
concurring in part and dissenting in part:
Weighty state and personal liberty interests are placed at issue by an extremely important question raised at oral argument in this case: does the Supreme Court’s recent decision in Lawrence v. Texas,
I.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214, provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....
28 U.S.C. § 2254.
The majority is apparently proceeding on the assumption — although it does not say so expressly — that Anderson’s Lawrence claim “was adjudicated on the merits in State court proceedings” as part of the general vagueness claim. Nowhere does the majority indicate that Anderson’s Lawrence-based vagueness claim is unexhaust-ed.
That being the case, the question posed by AEDPA is: was the state court adjudication of Anderson’s vagueness claim “contrary to,” or “an unreasonable application
Of course, Lawrence v. Texas was not “clearly established Federal law” on November 18, 1998, the day the Oregon Supreme Court summarily affirmed the denial of Anderson’s state habeas petition. Rather, Bowers v. Hardwick,
As is apparent, no case decided after November 1998, Lawrence included, has any bearing on the question whether Anderson is entitled to habeas relief under 28 U.S.C. § 2254(d)(1) based on the proceedings thus far conducted in state court. The majority therefore has no justification for deciding the Lawrence question on the merits if it is part of the exhausted vagueness issue, given the procedural posture of this case;
II.
The other possibility is that the majority does not view the Lawrence variant as part of the exhausted vagueness issue but is deciding it anyway. That approach also has little to commend it. There are three vastly preferable alternatives.
First, the majority could have simply ruled the Lawrence claim unexhausted under. AEDPA and dechned to decide it. As the majority rejects the Lawrence claim, it is technically proper to forgo requiring exhaustion, as AEDPA so permits. See § 2254(b)(3). But surely, where, as here, the legal question is both novel and important, and has not been briefed in any court, both prudence and fairness dictate against such a precipitous course. Application of § 2254(b)(3) should be reserved for circumstances in Which the result on the unexhausted claim is a forgone conclusion, not open to any dispute. Absent that circumstancé, deciding an issue not litigated in the state courts is in tension with comity principles, as the state court may view the issue differently than we do.
Second, Anderson never raised a separate Lawrence claim before the district court. Thus, if the majority thought the Lawrence issue, although unexhausted, was properly raised in this appeal, a remand to allow the district court first to address the question would have been appropriate. Again, such a tack was not required. Appellate courts are entitled to decide pure questions of law not raised
Third — and this would be my preferred approach — the court could remand the case to the district court with directions to stay proceedings while Anderson exhausts the Lawrence-based vagueness claim.
The Lawrence issue was raised for the first time at oral argument. We cannot fairly blame Anderson for tardiness, however. The Supreme Court’s decision in Laiorence was announced less than two weeks prior to oral argument, well after the close of briefing, and Lawrence expressly overruled prior precedent.
AEDPA requires a habeas petitioner to exhaust each of his federal claims in state court, making no exception for claims precipitated by new law decided by the Supreme Court after the relevant state court adjudication on the merits. 28 U.S.C. §§ 2254(b) & (c); see also, e.g., Gatlin v. Madding,
Anderson did not attempt to invoke before any of the Oregon courts a vagueness argument premised on a federal constitutional right of consenting, unmarried adults to engage privately in sexual conduct. It would therefore be proper, if one views the Lawrence claim as unexhausted, to remand the Lawrence-based claim to the district court so that leave to exhaust the claim through an Oregon post-conviction procedure might be granted.
Kelly v. Small,
Tyler v. Cain,
Section § 2254(e)(2) also envisions the existence of a habeas claim that relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” but, unlike § 2244(b)(2)(A), is not limited to successive petitions.
Federal habeas relief can therefore sometimes be granted on the basis of claims that rely on new Supreme Court decisions, as long as the claim was exhausted in state court. A habeas petitioner raising a claim that relies on new Supreme Court law, announced while the federal habeas is pending and raising purely legal issues, should therefore be permitted to return to state court to exhaust his claim through an appropriate state court post-conviction procedure.
That Anderson’s Lawrence-based claim only originated after his case left the district court’s jurisdiction and entered ours does not change this conclusion. AED-PA’s exhaustion requirement entitles a state to pass on a prisoner’s federal claims before the federal courts do so. A state has no interest, however, in seeing that the prisoner’s ability to invoke new Supreme Court law in a first habeas petition expires upon the filing of a notice of appeal from a federal district court’s ruling, rather than at the time that his first petition has been conclusively ruled on by the federal courts. To require instead that Anderson raise his Lauyrence claim in a second habeas petition would, because of the severe limitations on second petitions, see, e.g., Tyler,
I would therefore remand to the district court with instructions to stay proceedings while the Lawrence-based vagueness claim is exhausted in state court.
III.
Because the majority nonetheless reaches the Lawrence issue on the merits, I do as well.
The only analysis the majority offers as to why Lawrence does not impact the vagueness inquiry in this case is the following assertion:
The Lawrence Court held that the Due Process Clause of the Fourteenth Amendment protects the right of two individuals to engage in fully and mutually consensual private sexual conduct. The holding does not affect a state’s legitimate interest and indeed, duty, to interpose when consent is in doubt.
Ante at 1032-33.
It is true that Lawrence did not involve a case where consent was in doubt. Lawrence explicitly said as much: “[The present case] does not involve persons who might be injured or coerced or who are situated in relationships were consent might not easily be refused.”
What follows is my explanation as to why the sexual liberty interest set out in Lawrence v. Texas does indeed implicate the validity of Anderson’s conviction.
A. Background
As the facts provided by the majority are sparse, I spell out the factual background in a bit more detail:
At the time of the sexual encounter for which Anderson was prosecuted, JH was 26 years old and lived with her mother. She is 4'7" tall, has the emotional maturity of a 6 — 8-year-old child, and is moderately mentally retarded. She has “a little” vision in one eye, and “fairly good” vision in the other. She also has a hearing deficiency but does not always wear a hearing aid. It is difficult to understand her speech.
Others also testified as to JH’s sexual behavior. Anderson’s wife testified that in June 1993, roughly one year after the sexual encounter for which Anderson was prosecuted, she witnessed JH display to a mutual friend six hickeys that she had received on her neck. JH exhibited happiness about the marks. Also, Tina Pahre, an acquaintance of Anderson’s, testified that in 1992 she had frequently seen JH at Pahre’s apartment complex. JH’s apparent purpose was to visit a man named Jim, who “[s]he seemed to really, really like.” According to Pahr, even when Jim was not there, JH would visit other men at the apartment complex, “follow them up to their apartment ... [e]ven if they didn’t want her there ... and flirt with them.” This behavior continued for a month.
Additionally, Anderson testified at trial about a 1989 consensual sexual encounter with JH, for which he was not prosecuted.
The 1992 sexual encounter for which Anderson was prosecuted began when Anderson saw JH as he was driving home from work. JH was walking home from a bar where she had been dancing, an activity in which she regularly engaged, and drinking. Anderson claims that she accepted a ride with him and that they proceeded to a secluded parking lot. According to him, they conversed about them previous intimate relationships. While he suspected that she might be deaf, he maintained that he did not realize that she was mentally retarded. Anderson claims that JH initiated the consensual sexual encounter that followed.
JH’s testimony, which mostly consisted of her affirmations of the prosecutor’s leading questions, was that Anderson grabbed her by the arm and told her to get into the car. She also testified that Anderson was drinking, that Anderson removed her pants despite her protest, and that he forcibly raped and sodomized her. The medical examiner testified that JH suffered no bruising or injuries anywhere on her body.
Anderson was charged with five counts of criminal conduct: (1) kidnapping, (2) forcible rape, (3) rape of “a person who was incapable of consent by reason of mental defect,” (4) forcible sodomy, and (5) sodomy of “a person who was incapable of consent by reason of mental defect.” The jury acquitted him of Counts I, II, and IV. Thus, the jury rejected JH’s version of the incident, as it concluded there was no forcible rape or sodomy. Instead, the basis for Anderson’s conviction was non-forcible sexual activity with a person legally incapable of consent.
The statutory scheme under which Anderson was convicted provides:
(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if:
(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.
OR. REV. STAT. § 163.375. Additionally,
“Mentally defective” means that a person suffers from a mental disease or*1039 defect that renders the person incapable of appraising the nature of the conduct of the person.
OR. REV. STAT. § 163.305(3). As the trial judge made clear in Anderson’s case, the applicable intent requirement, knowledge, extends only to knowingly having sexual intercourse. A defendant need not have known that his sexual partner was incapable of consent by reason of a mental defect. See State v. Phelps,
There is, however, an affirmative defense:
[I]t is an affirmative defense for the defendant to prove that at the time of the alleged offense the defendant did not know of the facts or conditions responsible for the victim’s incapacity to consent.
OR. REV. STAT. § 163.325(3). The defendant bears the burden of proof as to this defense, see Phelps,
In short, as instructed, the jury did not need to find that Anderson’s sexual conduct with JH was in fact non-consensual, nor did it need to find that Anderson knew JH was incapable of consent. It simply had to find that JH was incapable of consenting, and that he had not proven that he was unaware of her mental retardation.
B. Analysis
Anderson contends that the phrase “incapable of appraising the nature of the conduct” in the definition of “mentally defective” is unconstitutionally vague. At trial, the jury instructions simply repeated this statutory language without elaboration.
The degree of permissible vagueness depends on various characteristics of the statute:
[Ejconomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.... The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. And the Court has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.
Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it*1040 threatens to inhibit the exercise of constitutionally protected rights.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
In Anderson’s case, a relatively high standard of precision is required. This is a criminal conviction for personal, as opposed to economic, conduct. Additionally, as noted, there is no scienter requirement as to the ability of the victim to consent.
Further, the affirmative defense shifts the burden of proof to Anderson, requiring him to prove his lack of knowledge by a preponderance of the evidence, as opposed to merely showing that a reasonable doubt exists. Cf. United States v. Mazurie,
The final consideration that governs the degree of vagueness allowed in Anderson’s prosecution is whether constitutionally protected conduct is implicated. As I demonstrate below, section 163.305(3)’s definition of “mentally defective,” which ultimately determines whether or not JH can legally consent to sex, implicates the sexual liberty interest fleshed out in Lawrence v. Texas, and therefore does impinge directly on constitutionally protected conduct.
1. Substantive Due Process
The Supreme Court in Lawrence struck down Texas’s same-sex sodomy law.
The question, then, is whether the sexual liberty interest outlined in Lawrence regulates the manner in which a state drafts and applies its statutory rape law as applied to adult victims. I believe it does.
Before proceeding, it is crucial to note the interrelationship between JH’s sexual liberty interest and Anderson’s: If JH has, in certain circumstances, a constitutionally protected right to consent to sex and she does in fact consent,
The first reason why section 163.305(3), as written and as read to the jury at Anderson’s trial, could implicate constitutionally protected conduct is that it is susceptible to a construction that JH will never -be able legally to consent to sex. The jury could have easily interpreted the phrase “incapable of appraising the nature of the conduct” to mean that either JH is always capable of consenting to sex or she never is. This binary view of mentally retarded individuals generally and JH in particular might well be an unconstitutional imposition on their sexual liberty. Despite the lack of a consistent clinical definition of what constitutes a “valid” consent, see infra note 10, there is clear consensus among experts in the field of mental retardation that mentally retarded individuals experience sexual desire and can meaningfully consent to sex in some situations.
Moreover, JH has evidently engaged in voluntary sexual intercourse on a number of occasions in a manner that offended neither her mother nor the state. Given the general clinical belief that mentally retarded individuals desire and can “ethically” consent to sex, as well as JH’s own desire and demonstrated capacity to understand and appreciate sexual contact, it could well be unconstitutional for Oregon law to hold that JH can never legally consent to sex. Section 163.305(3) is readily susceptible to this type of potentially unconstitutional application.
To conclusively demonstrate unconstitutionality on this ground, however, would require a more lengthy analysis than I have performed here, and would then still fall short of' showing compliance with § 2254(d)(l)’s requirement that a contrary result would involve an “unreasonable application” of clearly established Supreme Court law. I need not engage in that endeavor, however, because I am convinced that section 163.305(3) implicates constitutionally protected conduct for a different reason.
Specifically, the statutory provision alternatively invites those applying the law to invoke their own sexual mores and override JH’s sexual choice when deciding whether JH is capable of consent in a particular instance. During the pretrial hearing, the prosecutor first interpreted the statutory scheme in precisely this contextual manner. The prosecution’s initial attempt at interpreting the statute was to propose a rule that JH’s mother could
Expert testimony at trial also suggested an invitation to apply one’s own moral framework to JH’s sexual choice. In explaining why JH’s consent was not valid, the prosecution’s non-medical expert on sexually abused, mentally retarded individuals testified that whereas JH sees “sex” as merely a physical act, “If you ask, you know, anyone else what sex was or what intercourse is you see an entire picture. You see the candles, the wine, the dating, you know, whatever else goes on. With her sex is just one quick spur of the moment thing.”
That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence,
The line of cases concerning the analogous right of the mentally disabled to refuse medical treatment support the conclusion that the state is not free simply to ignore JH’s particular sexual choice. In Youngberg v. Romeo,
Notably, the Court has discussed no other legitimate state interest in disregarding the desires of the mentally disabled to refuse medical treatment, and neither of the two considerations that the Court did discuss is applicable here. JH has not been involuntarily confined and poses no safety threat to herself or those around her. More important, Oregon’s statutory rape scheme places the consent determination in the hands of a jury, not a psychiatrist, clinician, or parent.
So, while the state surely has a very strong, legitimate interest in ensuring that the consent of a mentally disabled individual is knowledgeable and truly voluntary, and in disregarding that consent in situations where the alleged victim does not understand either the circumstances and consequences of sexual conduct or the extent of her ability to refuse sex, the state has no legitimate interest in imposing sexual mores on retarded individuals or their consensual partners.
2. Vagueness
As part of a criminal statute that targets constitutionally protected personal conduct without an effective mitigating scienter requirement, section 163.305 is precisely the type of law that must convey its interdic-tions with a heightened clarity to be valid. See Village of Hoffman Estates,
The contextual interpretation of section 163.305 squarely conflicts with the precepts underlying the vagueness doctrine. The open-ended character of section 163.305, which potentially allows those applying it to invoke their own personal moral standards, “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned,
Even before Lawrence, when governmental regulation of private adult sexual conduct was not subject to heightened scrutiny, the Iowa Supreme Court held a statute criminalizing sexual activity with a person who “lacks the mental capacity to know the right and wrong of conduct in sexual matters” unconstitutionally vague. See Sullivan,
Another way to bring the statute into line with constitutional norms, albeit one rejected in Callender, is to construe the statute as applying only when the victim is not able to comprehend the physical aspects of the sexual act and its physical consequences — pregnancy, for example, and disease. That test for capacity to consent would be quite clear, and appears to be the majority interpretation for statutes of this sort. See Elizabeth J. Reed, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity, 83 VA. L. REV. 799, 813-14 & n. 110 (1997). Under it, Anderson could not have been convicted, as the evidence established that JH did have that degree of understanding.
The path Oregon instead chose to pursue after Anderson’s conviction — tying capacity to consent with the “ability to contemplate and assess the ‘right or wrong’ and the ‘moral quality’ ” of the sexual act, see Callender,
In any event, the manner in which the statute was applied was unconstitutional both as to Anderson and as to JH.
I respectfully dissent.
Notes
. By contrast, Anderson’s Lawrence claim is not barred by the doctrine of Teague v. Lane,
. An aspect of the doctrine applied in Kelly v. Small is currently undergoing Supreme Court review in Pliler v. Ford, - U.S. -,
. I note that Justice O'Connor's controlling concurrence in Tyler suggests that this is precisely the type of case involving a claim that relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” As Justice Breyer stated in his dissent:
I agree with Justice O’Connor — as does a majority of the Court — when (in describing [the first] Teague exception) she says that "[w]hen the Court holds as a new rule in a subsequent case that a particular species of primary, private individual conduct is beyond the power of the criminal lawmaking authority to proscribe, it necessarily follows that this Court has ‘made’ that new rule retroactive to cases on collateral review.”533 U.S. at 675 (citation to Justice O’Con-nor’s concurrence omitted). As explained above, Lawrence falls within Teague’s first exception. See supra note 1.
. Importantly, not every new Supreme Court decision will warrant reexhaustion under the procedure I propose. Section 2244(b)(2)(A) and § 2254(e)(2)(A) explicitly require that the claim invoking the new Supreme Court decision be "previously unavailable.” While groundbreaking cases, overruling prior precedents, such as Lawrence will generally give rise to claims that were "previously unavailable,” many new Supreme Court decisions will not.
. The need for this counterfactual assumption confirms that we should have allowed the state courts to address the question in the first instance. Asking whether a state court decision is an "unreasonable” application of clearly established Supreme Court law when there was no chance for the state courts to address the new law distorts AEDPA’s federalism premises. The alternative, deciding on the merits, without § 2254(d)(1) deference, an unexhausted, nonfrivolous question is similarly at odds with comity principles.
. In State v. Callender,
. Again, the jury never found that JH did not consent to sex with Anderson.
. Of course, there may be a different basis, unrelated to lack of consent, for forbidding a given sexual act with a consenting adult — its public location, for example. Anderson’s prosecution, however, was grounded only in lack of consent.
. See, e.g., K.R. Held, Ethical Aspects of Sexuality of Persons with Mental Retardation, 10 SEXUALITY & DISABILITY 237, 237-55 (1992); MONAT, supra, at 58-59 (1982); L. Heshusius, Research on Perceptions of Sexuality by Persons Labelled Mentally Retarded 51-52, in MENTAL HANDICAP and SÉXUALITY: ISSUES AND PERSPECTIVES (Ann Craft ed., 1987). But cf. R. Binder, Sex Between Psychiatric Inpatients, PSYCHIATRIC Q. 121 (1985) (offering a dissenting view, but conceding that sexual relations may be therapeutic in some cases).
. Moreover, while deference to a health professional makes sense in the context of medical treatment, it may be less appropriate in the morally-infused context of sexual consent. See, e.g., John M. Niederbuhl & C. Donald Morris, Sexual Knowledge and the Capability of Persons with Dual Diagnoses to Consent to Sexual Contact, 11 SEXUALITY & DISABILITY 295, 304 (1993) (noting the lack of consis
. The Supreme Court has recognized an analogous principle in the First Amendment context:
We have sometimes said that [certain] categories of expression are "not within the area of constitutionally protected speech," or that the "protection of the First Amendment does not extend to them.” Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated short-hand characterizing obscenity “as not being speech at all." What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) — -not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel, but it may not make the further content discrimination of proscribing only libel critical of the government.
R.A.V. v. City of St. Paul,
. It is likely that Anderson did not receive fair warning that his conduct was illegal. At the time of his sexual encounter with JH, the Oregon courts had not yet read any substance into section 163.305(3)’s definition of "mentally defective.” Thus, one might well have looked to New Jersey law, which employs an identical "appraising the nature of the conduct” standard. See, e.g., State v. Olivio,
. As noted, supra at 1041-42, the first interpretation may well also unconstitutionally impinge on JH's right to engage in sexual behavior, but I need not so decide for purposes of this dissent.
. I note, however, that the Callender decision, as written, does not conclusively commit Oregon to one particular definition of capacity to consent, but instead is open-ended, adding to rather than detracting from the vagueness of the statutory scheme.