GARY EARL NEVILLE v. STATE OF MARYLAND
No. 31, September Term, 1980.
HOWARD CHESTER KELLY, JR. v. STATE OF MARYLAND
No. 33, September Term, 1980.
Court of Appeals of Maryland
Decided June 3, 1981.
290 Md. 364 | 430 A.2d 570
George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and J. Robert Johnson, Assistant Public Defender, on the brief, for appellant Neville. Barbara Mello and Timothy E. Meredith, with whom were Robert W. Warfield and Corbin, Heller & Warfield, Chartered on the brief, for appellant Kelly.
Alice Pinderhughes, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
RODOWSKY, J., delivered the opinion of the Court. DAVIDSON, J., dissents and filed a dissenting opinion at page 386 infra.
These appeals in criminal cases which were consolidated for argument in this Court question the constitutionality, primarily on privacy and equal protection grounds, of the Maryland perverted practices statute. For the reasons set forth below, we affirm the convictions.
Appellant Howard Chester Kelly, Jr. (Kelly), then age 18, was tried before a jury in the Circuit Court for Anne Arundel County. His prosecution was initiated on the complaint of a 16-year-old female, Pat. A friend of Kelly, Ronald Holden (Holden), was tried jointly with Kelly.
Pat testified in substance that she was abducted at knife-point by Kelly and Holden from the Harundale Shopping Center in Glen Burnie on the afternoon of Friday, May 5, 1978. Pat said that she was taken by automobile to an abandoned nike missile site where she was raped by Holden and forced to perform fellatio on Kelly. Both Kelly and Holden took the stand and said Pat asked for a ride in their automobile. Each testified that a variety of two party and three party sexual acts were performed with Pat that afternoon, all with her consent and at her instigation. For purposes of the present appeal it is sufficient to note that Kelly testified Pat performed fellatio upon him, in the presence of Holden, outside of an old metal shed which was at one time used to store acid in connection with the former missile installation. There was also defense evidence concerning an admission made by Pat to an acquaintance that Pat picked up the two defendants and had sex with them, after which they abandoned her and that, in order to get revenge for the abandonment, Pat claimed to be the victim of forced sexual acts. Holden and Kelly testified that they left Pat at the site only after she became enraged because they disparaged the quality of her performance.
The jury found Kelly guilty of committing an unnatural and perverted sexual practice in violation of
The first of three questions presented by Kelly in his petition for certiorari was “[w]hether the imposition of absolute criminal liability for private, consensual sexual conduct infringes a constitutionally protected right of privacy....” [Emphasis added.] This question encompasses, under Md. Rule 813 a, the issue of whether the admitted sexual conduct was “private” for purposes of the asserted constitutional right. Having exercised our discretion to grant Kelly‘s petition and thereby to afford him a discretionary appeal, the case is treated like every other appeal with respect to the issue of “private” conduct. “And, as in every ordinary direct appeal, the rule is well established that an appellate court will normally affirm a trial court on a ground adequately shown by the record, even though that ground was not the one relied upon by the trial court.” Robeson v. State, 285 Md. 498, 503-04, 403 A.2d 1221, 1224 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 680, 62 L. Ed. 2d 654 (1980).3
On the other side of the hill from the point where the participants’ car was parked is a concrete slab on which sits the rusted out metal shed outside of which and in which the sexual activity took place. To the east of the metal shed is the home of the Bolander family. It was identified as also being the Stony Creek Rod and Gun Club. This house is approximately one-half block from the metal shed. The shed is not visible from the Bolander house because the intervening area is wooded. However, a path approximately three feet wide runs from the Bolander home, past the shed, toward the public school. The shed is visible from the path. Mrs. Bolander has seen the shed while using the path to pick up her 9-year-old daughter who attends the Fort Smallwood
II
The prosecution in No. 31 was based upon visual observations by Patrolman Dean Brewer of the Westminster Police Department. Gary Earl Neville (Neville), age 42, was charged in the Circuit Court for Carroll County with indecent exposure and, under
Neville was employed by the Rescue Mission in Westminster. While Neville and Susan were in the clearing, two men from the Rescue Mission walked down the railroad tracks to a shopping center and walked back. This route took them within 15 feet of the clearing. The railroad tracks are used by the people at the Mission. By Neville‘s admission, the tracks are used by a “lot of other people... too,” because “[i]t‘s close to the shopping center.”
Neville was found guilty only on the perverted practices charge. He was fined $10 and costs, and payment of the fine and costs was suspended. We granted certiorari prior to the consideration by the Court of Special Appeals of Neville‘s appeal.
III
There is no universally recognized and accepted definition of the concept of privacy in the sense in which appellants invoke it.5 We are not here concerned with matters relating to the confidentiality of personal information, nor exclusively with solitude, but rather with concepts of liberty of the individual which are considered to be so fundamental as to be protected from unwarranted governmental interference even though express recognition of the right is
Although “[t]he Constitution does not explicitly mention any right of privacy,” the Court has recognized that one aspect of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment is “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Roe v. Wade, 410 U.S. 113, 152 [93 S. Ct. 705, 726, 35 L. Ed. 2d 147] (1973). This right of personal privacy includes “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 [97 S. Ct. 869, 876, 51 L. Ed. 2d 64] (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions “relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010] (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 [62 S. Ct. 1110, 1113-1114, 86 L. Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454 [92 S. Ct. at 1038-1039]; id., at 460, 463-465 [92 S. Ct. at 1042, 1043-1044] (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S. Ct. 438, 442, 88 L. Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S. Ct. 571, 573, 69 L. Ed. 1070] (1925); Meyer v. Nebraska [262 U.S. 390, 399 (1923)] [43 S. Ct. 625, 67 L. Ed. 1042].” Roe v. Wade, supra, at 152-153 [93 S. Ct. at 726]. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 [94 S. Ct. 791, 796-797, 39 L. Ed. 2d 52] (1974). [Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675, 684 (1977).]
As recently as 1976 this Court observed that it is “clear that the Supreme Court has yet to extend the right of privacy much beyond the context of intimate relationships.” Montgomery Co. v. Walsh, 274 Md. 502, 513, 336 A.2d 97, 105 (1975), appeal dismissed, 424 U.S. 901, 96 S. Ct. 1091, 47 L. Ed. 2d 306 (1976). See also Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 272, 329 A.2d 35, 41-42 (1974).
The Supreme Court‘s decision in Carey6 makes plain that the Court considers it to be an open question whether the right of privacy applies to all of the combinations and permutations which can fall under the general heading of “adult sexual relations.” Following a reference to the compelling state interest test for the justification of certain state regulation and to the requirement that such a regulation must be narrowly drawn to express only the legitimate state interests at stake, as those concepts were applied in Roe v. Wade, the Court inserted the following footnote:
Contrary to the suggestion advanced in MR. JUSTICE POWELL‘S opinion, we do not hold that state regulation must meet this standard “whenever it implicates sexual freedom,“... or “affect[s] adult sexual relations,“... but only when it “burden[s] an individual‘s right to decide to prevent conception or
terminate pregnancy by substantially limiting access to the means of effectuating that decision.“... As we observe below, “the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,” n. 17, infra, and we do not purport to answer that question now. [Carey v. Population Services International, supra, 431 U.S. at 688 n. 5, 97 S. Ct. at 2018 n. 5, 52 L. Ed. 2d at 687 n. 5.]7
The Supreme Court‘s careful limitation to the facts before it of a holding that a right of privacy applies, which is manifested in Carey, was perceived by this Court in earlier Supreme Court privacy decisions. In Montgomery Co. v. Walsh, supra, we referred to the emphasis in Roe v. Wade “that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the constitutional guarantee of personal privacy” and we refer to the language of Eisenstadt v. Baird which speaks of freedom ” ‘from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ ” We discerned that if “these pronouncements hint that the constitutional right of privacy is of limited scope and not to be lightly applied, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), makes it explicit.” 274 Md. at 512-13, 336 A.2d at 105.
Slaton was the review of a Georgia decision which held that an injunction could issue to prohibit the exhibition in an adult movie theatre of films depicting scenes of simulated fellatio, cunnilingus and group sexual intercourse. The theatre argued, citing Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), that state regulation of
If obscene material unprotected by the First Amendment in itself carried with it a “penumbra” of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the “privacy of the home,” which was hardly more than a reaffirmation that “a man‘s home is his castle.“... Moreover, we have declined to equate the privacy of the home relied on in Stanley with a “zone” of “privacy” that follows a distributor or consumer of obscene materials wherever he goes. [cit. om.] The idea of a “privacy” right and a place of public accommodation are, in this context, mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a “live” theater stage, any more than a “live” performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue. [413 U.S. at 66-67, 93 S. Ct. at 2640, 37 L. Ed. 2d at 462-63.]
In a footnote to the foregoing passage, the Court recognized the distinction between the solitude aspects of privacy and its application to intimate relationships.
The protection afforded by Stanley v. Georgia... is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concern with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor‘s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.... Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage. [Emphasis supplied.]
Professor Tribe has advanced the theory that harms existing only in the mind of the beholder do not suffice to support state action which infringes on a right of privacy. In focusing on possible limits of that principle he has stated that “perhaps the most basic is that, when the affront seems offensive enough in relation to the importance of the choice to the person making it, the community may require at least that the choice be made in some less obtrusive way — at home, perhaps, or a nudist camp, but not on the main street at high noon.” L. Tribe, American Constitutional Law 984 (1978). See also Richards, Unnatural Acts and The Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281, 1333-34 (1977).
A possible vehicle for addressing directly the intersection of state power and personal sexual conduct was presented to the Supreme Court in the appeal from Doe v. Commonwealth‘s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), a decision of a three judge district court8 which sustained the constitutionality of the Virginia sodomy statute. The challenge was by male plaintiffs who averred, inter alia, that the statute unjustifiably invaded their rights of privacy when applied to
It is clear from the foregoing review that there is no holding by the Supreme Court that the right of privacy applies to conduct of the type prohibited by
After the Griswold decision, criminal statutes which flatly and in terms without exception prohibit fellatio have been frequently challenged on privacy grounds. The clear majority of consensual fellatio cases which have considered arguments based on personal autonomy have looked to the location and other circumstances to determine if any right of
Kelly asserted at oral argument that the issue of whether his conduct was private was not tried and decided by the trial court. Md. Rule 885. The contention is not supported by the record. In his memorandum in support of his motion for dismissal, Kelly argued that the missile base was a “secluded spot, far off the beaten path” so that the parties had a reasonable expectation of privacy. The motion was denied.
Neville additionally advanced at oral argument a contention based on his acquittal of a companion charge of indecent exposure arising out of the same incident. He had argued to the trial court that the indecent exposure charge should fall as a matter of law because the conduct did not occur in a public place. The trial court, sitting non-jury, acquitted Neville on the indecent exposure count by reference to Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 579-80 (1957). It reasoned that an essential element of the crime of indecent exposure was that the exposure must be seen or be likely to be seen by a casual observer and then held that Officer Brewer, who was “required to literally stalk the Defendant... was not a ‘casual observer’ as defined in Messina.”11 At the same time the trial court rejected Neville‘s argument based on a constitutional right of privacy. Even if it is assumed that the facts in Neville‘s case did not establish all of the elements of indecent exposure, the
Similarly, because
Kelly next contends that
Neville‘s argument that he was only engaged in a form of birth control is a variation on the scenario of copulation during political dialogue in Times Square and is not applicable to the circumstances of his case.
IV
The equal protection contention of Kelly is twofold. He says that his conviction is discriminatory vis-à-vis married persons. Both he and Neville also argue that the absence from Maryland law of a criminal sanction for fornication makes
The outline of the argument based on comparison to married persons is that
This argument in essence asks us to read into
It is further asserted that petitioners’ rights to equal protection are violated by
The rational relation test applies. Under that test, “[t]he distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.” McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739, 745 (1969). The Supreme Court “has made clear that a legislature need not ‘strike at all evils at the same time or in the same way‘....” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715, 725, 66 L. Ed. 2d 659, 670 (1981) (quoting Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S. Ct. 570, 571, 79 L. Ed. 1086 (1935)). One valid objective of a perverted practices or sodomy statute is the protection of public morality. Note, The Constitutionality of Laws Forbidding Private Homosexual
Petitioners’ argument is much like one which has been advanced in marihuana cases where defendants have argued that equal protection of the laws has been denied because a legislative body has not also proscribed possession or use of alcohol or tobacco. The argument has regularly been rejected on the ground that a legislative body is free to recognize degrees of harm, and may confine its restrictions to instances where it determines the need for them is clearest. E.g., United States v. Bergdoll, 412 F. Supp. 1308, 1313 (D. Del. 1976); Ravin v. State, 537 P.2d 494, 512 (Alaska 1975); State v. Renfro, 56 Hawaii 501, 542 P.2d 366, 369-70 (1975); Ill. NORML, Inc. v. Scott, 23 Ill. Dec. 303, 66 Ill. App. 3d 633, 383 N.E.2d 1330, 1336 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898, 905 (1969); State ex rel. Zander v. District Court, 591 P.2d 656, 661 (Mont. 1979) and State v. Smith, 93 Wash. 2d 329, 610 P.2d 869, 876 (1980), cert. denied, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980).
V
Finally, petitioner Kelly invokes the prohibition against cruel and unusual punishment of the
Second, Kelly, who was placed on three years supervised probation after the imposition of one year imprisonment was suspended, also contends that exposure to ten years imprisonment (the maximum imprisonment under
For the foregoing reasons the judgments are affirmed.
Judgment of the Circuit Court for Carroll County in No. 31, Neville v. State, affirmed.
Appellant to pay the costs.
Judgment of the Court of Special Appeals in No. 33, Kelly v. State, affirmed.
Appellant to pay the costs.
Davidson, J., dissenting:
The majority here fails to reach the essential question whether there is a constitutionally-protected right to privacy for private, consensual, sexual activity. Upon a constitutionally-mandated, independent appraisal of the record, the majority finds as a fact that the conduct of both petitioners, Neville and Kelly, occurred in places not sufficiently private to be afforded a constitutional right to privacy, if such a right exists.
Upon my constitutionally-mandated, independent appraisal of the record, I find as a fact that the sexual activity of both Neville and Kelly occurred in a private place.1 In my view, there is a constitutionally-protected right to privacy for private, consensual, sexual activity.2 Thus, I would hold that
As long ago as 1891, the United States Supreme Court recognized the existence of a common law right to personal privacy in Union Pacific Railway Company v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891). There Mr. Justice Gray said:
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
In 1928, Mr. Justice Brandeis indicated that the right to privacy might be constitutionally protected. In a dissenting opinion, in Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572 (1928), he said:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man‘s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”
In 1965, in Griswold v. Connecticut, 381 U.S. 479, 484-85, 85 S. Ct. 1678, 1681-82 (1965), the Supreme Court held that there is a constitutionally-protected right to privacy. Although the United States Constitution does not explicitly mention the right to privacy, Mr. Justice Douglas, stating that “the right of privacy [is] older than the Bill of Rights,” explained:
“Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.‘”
While the Supreme Court in other cases has held that the right to privacy includes the right to make personal decisions relating to marriage, procreation, contraception, abortion, family, and education, that Court has not defined the full scope of that right. In Carey v. Population Services International, 431 U.S. 678, 688 n.5, 97 S. Ct. 2010, 2018 n.5 (1977), the Supreme Court said:
“[T]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,’ n.17, infra, and we do not purport to answer that question now.”
Accordingly, I agree with the majority that the “Supreme Court‘s decision in Carey makes plain that the Court considers it to be an open question whether the right of privacy applies to all... ‘adult sexual relations.’ ”3
In Griswold, 381 U.S. at 486-87, 85 S. Ct. at 1682, the Supreme Court held that the distribution of contraceptives to married persons could not be prohibited. Inherent in the Supreme Court‘s determination that married persons have a right to make decisions with respect to the consequence of sexual encounters was the recognition that married persons have the right to have such encounters. Thus, the Supreme Court established that the constitutionally-protected right to privacy includes the intimacies associated with the marital relationship.
In Eisenstadt v. Baird, 405 U.S. 438, 453-55, 92 S. Ct. 1029, 1038-39 (1972), the Supreme Court held that the distribution of contraceptives to unmarried persons could not be prohibited. There the Court said:
“It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt, 405 U.S. at 453, 92 S. Ct. at 1038 (emphasis added).
Thus, the Supreme Court made it clear that the right to make decisions with respect to the consequence of sexual encounters, and necessarily to have such encounters, was not limited to married persons. Accordingly, the Supreme Court established that the constitutionally-protected right to privacy includes the intimacies associated with a personal relationship between unmarried persons.
In Stanley v. Georgia, 394 U.S. 557, 568, 89 S. Ct. 1243, 1249-50 (1969), the Supreme Court held that the possession of obscene matter within the privacy of a person‘s home could not be prohibited. There, the Court acknowledged that a person has
“the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Stanley, 394 U.S. at 565, 89 S. Ct. at 1248 (emphasis added).
Thus, the Supreme Court suggested that the constitutionally-protected right to privacy includes the right to seek sexual gratification by viewing obscene material in the privacy of one‘s home.
In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13, 93 S. Ct. 2628, 2640 n.13 (1973), the Supreme Court recognized:
“The protection afforded by Stanley v. Georgia is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor‘s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.” (Emphasis added) (citation omitted).
All of these cases lead to the conclusion that an unmarried person‘s decision to seek sexual gratification, even from deviant conduct, and to indulge in acts of sexual intimacy is included within the constitutionally protected right to privacy. Indeed, this Court, itself, has previously recognized that the Supreme Court has established that the constitutionally-protected right to privacy includes intimate relationships. Montgomery County, Md. v. Walsh, 274 Md. 502, 513, 336 A.2d 97, 105 (1975), appeal dismissed, 424 U.S. 901, 96 S. Ct. 1091 (1976); Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 272, 329 A.2d 35, 41-42 (1974).
At least one Justice of the Supreme Court has indicated that the constitutionally-protected right to privacy may include private, consensual, sexual activities. Thus, in California v. LaRue, 409 U.S. 109, 132 n.10, 93 S. Ct. 390, 404 n.10 (1972), Mr. Justice Marshall, dissenting, has said:
“... I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults.”
Courts in other jurisdictions have held that the right to privacy includes private, consensual, sexual activities. In State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976), an accused male was convicted under a sodomy statute of performing fellatio with a female in a farm house. The Iowa Supreme Court held the statute unconstitutional, stating:
“We hold section 705.1 in its present form is unconstitutional as an invasion of fundamental rights, such as the personal right of privacy, to the extent it attempts to regulate through use of criminal penalty consensual sodomitical practices performed in private by adult persons of the opposite sex.”
“Thus it is seen that the concept of personal freedom includes a broad and unclassified group of values and activities related generally to individual repose, sanctuary and autonomy and the individual‘s right to develop his personal existence in the manner he or she sees fit. Personal sexual conduct is a fundamental right, protected by the right to privacy because of the transcendental importance of sex to the human condition, the intimacy of the conduct, and its relationship to a person‘s right to control his or her own body. The right is broad enough to include sexual acts between non-married persons and intimate consensual homosexual conduct.
It has been said that ‘privacy in the conventional sense (being left alone without anyone observing) is a generally accepted prerequisite to human sexual intercourse and the protection of sexual activity seems to be an important aspect of the constitutional right to privacy cases.’ The right to be free from unwarranted governmental intrusions into one‘s privacy is fundamental.” Onofre, 72 App. Div. 2d 268, 270-71, 424 N.Y.S.2d 566, 568 (1980) (citations omitted).
The New York Court of Appeals affirmed, stating that the right to privacy is
“a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint....”
“Because the statutes are broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults... we agree with defendants’ contention that it violates their right of privacy....” Onofre, 51 N.Y.2d at 485, 415 N.E.2d at 938, 939, 434 N.Y.S.2d at 949.
...
In State v. Saunders, 75 N.J. 200, 203, 381 A.2d 333, 334 (1977), an accused male was convicted under a fornication statute of fornicating with two women in a deserted parking lot. The Supreme Court of New Jersey held the statute unconstitutional, stating:
“We conclude that the conduct statutorily defined as fornication involves, by its very nature, a fundamental personal choice. Thus, the statute infringes upon the right of privacy. Although persons may differ as to the propriety and morality of such conduct and while we certainly do not condone its particular manifestations in this case, such a decision is necessarily encompassed in the concept of personal autonomy which our Constitution seeks to safeguard.” Saunders, 75 N.J. at 213-14, 381 A.2d at 339.
None of these courts has found a compelling state interest that would justify state regulation of private, consensual, sexual activity. More particularly, factors such as protecting the institution of marriage, upholding public morality by preventing illicit sex, preventing an increase in illegitimate children, preventing venereal disease, and preventing physical harm have been rejected as a sufficient basis for state regulation. Pilcher, 242 N.W.2d at 359; Saunders, 75 N.J. at 217-20, 381 A.2d at 341-43; Onofre, 51 N.Y.2d at 487-92, 415 N.E.2d at 940-42, 434 N.Y.S. 2d at 951-53.
The underlying rationale for this conclusion was stated in Saunders, 75 N.J. at 217-19, 381 A.2d at 341-42, as follows:
“Perhaps the strongest reason favoring the law is its supposed relationship to the furtherance of the State‘s salutary goal of preventing venereal disease. We do not question the State‘s compelling interest in preventing the spread of such diseases. Nor do we dispute the power of the State to regulate activities which may adversely affect the public health. However, we do not believe that the instant enactment is properly designed with that end in mind. First, while we recognize that the statute would substantially eliminate venereal diseases if it could successfully deter people from engaging in the prohibited activity, we doubt its ability to achieve that result. The risk of contracting venereal disease is surely as great a deterrent to illicit sex as the maximum penalty under this act: a fine of $50 and/or imprisonment in jail for six months. As the Court found in Carey, absent highly coercive measures, it is extremely doubtful that people will be deterred from engaging in such natural activities. The Court there rejected the assertion that the threat of an unwanted pregnancy would deter persons from engaging in extramarital sexual activities. We conclude that the same is true for the possibility of being prosecuted under the fornication statute.
Furthermore, if the State‘s interest in the instant statute is that it is helpful in preventing venereal disease, we conclude that it is counter-productive. To the extent that any successful program to combat venereal disease must depend upon affected persons coming forward for treatment, the present statute operates as a deterrent to such voluntary participation. The fear of being prosecuted for the ‘crime’ of fornication can only deter people from seeking such necessary treatment.
We similarly fail to comprehend how the State‘s interest in preventing the propagation of
illegitimate children will be measurably advanced by the instant law. If the unavailability of contraceptives is not likely to deter people from engaging in illicit sexual activities, it follows that the fear of unwanted pregnancies will be equally ineffective. The last two reasons offered by the State as compelling justifications for the enactment - that it protects the marital relationship and the public morals by preventing illicit sex - offer little additional support for the law. Whether or not abstention is likely to induce persons to marry, this statute can in no way be considered a permissible means of fostering what may otherwise be a socially beneficial institution. If we were to hold that the State could attempt to coerce people into marriage, we would undermine the very independent choice which lies at the core of the right of privacy. We do not doubt the beneficent qualities of marriage, both for individuals as well as for society as a whole. Yet, we can only reiterate that decisions such as whether to marry are of a highly personal nature; they neither lend themselves to official coercion or sanction, nor fall within the regulatory power of those who are elected to govern.” (Citations omitted).
A similar rationale was expressed in Onofre, 51 N.Y.2d at 490, 415 N.E.2d at 941-42, 434 N.Y.S.2d at 952, as follows:
“In sum, there has been no showing of any threat, either to participants or the public in general, in consequence of the voluntary engagement by adults in private, discreet, sodomous conduct. Absent is the factor of commercialization with the attendant evils commonly attached to the retailing of sexual pleasures; absent the elements of force or of involvement of minors which might constitute compulsion of unwilling participants or of those too
young to make an informed choice, and absent too intrusion on the sensibilities of members of the public, many of whom would be offended by being exposed to the intimacies of others. Personal feelings of distaste for the conduct sought to be proscribed by section 130.38 of the Penal Law and even disapproval by a majority of the populace, if that disapproval were to be assumed, may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision protected under the right of privacy drawn from the United States Constitution - areas, the number and definition of which have steadily grown but, as the Supreme Court has observed, the outer limits of which it has not yet marked.”
The conclusion that States do not have a compelling interest in regulating private, consensual, sexual activity is further supported by the fact that Legislatures in at least 22 jurisdictions have decriminalized such activity between adults in private. See Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J., 799, 950-51 (1979). In addition, the American Law Institute Model Penal Code adopts the view that private, consensual, sexual activity should not ordinarily be subject to criminal sanction. Model Penal Code § 213.2 (Proposed Official Draft 1962). See Model Penal Code § 207.5, Comment (Tent. Draft No. 5, 1956).
I am persuaded that the constitutionally-protected right to privacy includes the fundamental right to decide to engage and then to engage in private, consensual, sexual activity. I am further persuaded that there is no compelling State interest that justifies State regulation of such activity. To the extent that
I do not agree with the majority that “the private nature of particular conduct in a given location for constitutional right of privacy purposes is a matter of degree determined by all of the circumstances.” In my view, the majority here establishes a new standard for determining whether a given intimate act is to be afforded constitutional protection. In essence, it determines that the nature of the conduct and the degree of privacy of the location are both factors to be taken into account and that the more intimate the conduct, the greater the degree of privacy required to afford constitutional protection to a given intimate act. None of the cases relied upon by the majority articulates or utilizes the standard that the majority has designed.
In my view, it is unnecessary and inappropriate to engage, as do my colleagues, in a series of judgmental evaluations as to which of an infinite variety of intimate acts requires a lesser or greater degree of privacy in order to be afforded constitutional protection. Because any intimate act between consenting persons is to be afforded constitutional protection if it occurs in a private place, the nature of the intimate act is immaterial. Rather, the appropriate standard for determining whether a given intimate act should be afforded constitutional protection is whether the persons engaging in that act, irrespective of its nature, have a reasonable expectation of privacy in the location in which the act is being performed.
Upon my constitutionally-mandated, independent appraisal of the record, I find as a fact that the sexual activity of both Neville and Kelly occurred in a private place. I agree with the majority that Neville and Kelly “chose for the intimate sexual activity a place which was out of doors, which was in a well populated community, and which was equally as accessible to any member of the public as it was to [Neville or Kelly].” There are other factors, however, that, in my view, must be taken into account in determining whether the place in which the sexual activity occurred was public or private.
In Neville‘s case, the record shows that the site selected was a secluded spot located some distance away from the
All of these facts indicate that it was highly unlikely that any passerby or casual observer could or would observe any sexual activity occurring within the clearing and that the site was, therefore, a private and not a public place.4 Thus, Neville‘s choice of the site for the purpose of engaging undiscovered and undisturbed in intimate sexual activity was supported by a reasonable expectation of privacy.
In Kelly‘s case, the record shows that the site selected was a “secluded spot, far off the beaten path” located between one-fourth and one-half mile from the nearest paved road, one-fourth mile from the Rod and Gun Club, and one-half block through a wooded area to the nearest home. The site itself consisted of the area surrounding a rusted-out shed on an abandoned missile site that was not visible from either the road or the home. The record further shows that while Kelly, Holden, and the female involved were at the shed, children from the nearby home were searching the grounds of the Rod and Gun Club for a mislaid wallet. Yet there is nothing in the record to show that these children observed any sexual activity occurring at the shed. Finally, the record shows that there were no eyewitnesses to the sexual activity. Indeed, in closing argument, the State conceded that the site was a private, not a public place, when it said:
“And as is the nature of the crime, where the crime takes place, it takes place in an isolated area, where there is little likelihood of being detected or seen.”
All of these facts indicate that it was highly unlikely that any passerby or casual observer could or would observe any sexual activity occurring within the site and that the site was, therefore, a private and not a public place. Thus, Kelly‘s choice of the site for the purpose of engaging undiscovered and undisturbed in intimate sexual activity was supported by a reasonable expectation of privacy.
Here there was evidence to show that Neville and Kelly engaged in private, consensual, sexual activity. The State
Under these circumstances,
Notes
Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.
In Kelly‘s case, the State does not contend that Kelly did not retain a reasonable expectation of privacy despite the presence of a third party (Holden). Therefore, this question need not be considered here.In Kelly‘s case, the State does not contend that the female involved, who was aged 16, lacked capacity to give legally valid consent to sexual activity. Therefore, this question need not be considered here.
It is important to note that the Carey case, which explicitly states that the question whether the Constitution prohibits state statutes that regulate private, consensual, sexual activity, was decided subsequent to Doe. In addition, it is important to note that on 18 May 1981 the Supreme Court denied a petition for a writ of certiorari in People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980), cert. denied, --- U.S. ---, 101 S. Ct. 2323 (1981). In Onofre, the New York Court of Appeals held a consensual sodomy statute unconstitutional as applied to private, consensual, sexual activity because it unjustifiably interfered with the constitutionally-protected right to privacy.
“Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law ***. Ordinarily, *** the place where the exposure is made must be public. What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers ***.” Quoting 67 C.J.S., Obscenity § 5 (1955) (emphasis added).
Here, the trial court‘s acquittal, by definition, had to be premised upon a finding that the site was not likely to be seen by casual observers, and, therefore, was private. Indeed, the trial court further found that the site was private despite the fact that there was an eyewitness because that
The majority concludes that Neville‘s acquittal of indecent exposure does not establish that the intimate act occurred in a place sufficiently private to be afforded constitutional protection. In essence, the majority concludes that a place sufficiently private for performance of an act of indecent exposure is not sufficiently private for performance of an act of fellatio. The record is devoid of any factual, empirical, statistical, or psychological data to support that conclusion. The circumstances here graphically illustrate the unnecessary difficulties inherent in the application of the majority‘s standard that requires a judgmental evaluation of the relative intimacy of given sexual acts, frequently in the absence of any supporting data.
“(a) . . . A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) . . . without the consent of the other person . . . .
. . .
(3) Under 14 years of age and the person performing the sexual act is four or more years older than the victim.”
” ‘Sexual act’ means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.”
Because cunnilingus, fellatio, analingus, or anal intercourse all involve perverted practices, a person is guilty of a sexual offense in the second degree only if the person engages in a nonconsensual, perverted practice.