*1 police to a home make sweep go whenever protective out, already pointed Supreme As I have an arrest. Court’s Buie rejects proposition. that in this fails to
I would hold that record case show could reason- police possessed a officer have a reasonable facts, belief, on and articulable specific able based a danger an individual posing Buie’s house harbored The protective sweep on scene. violated those the arrest red running fourth The suit seized as amendment. suppressed. judgment should have been result thereof Appeals should be reversed. Special of the Court JJ., COLE, join in this dissent. ELDRIDGE A.2d 176 Steven Adam SCHOCHET Maryland.
STATE Term, 76, Sept. No. 1988. Appeals Maryland.
Court of 9, 1990. Oct. *3 (Miller, Chartered, Canby, P. Miller & Joseph Suntum brief), Rockville, petitioner. for on both Gaeng, Jung, A. Shapiro, J. Gerard J. Debra Stephen Preston, Baltimore, curiae, Whiteford, amicus for & Taylor Inc. Maryland, Union of American Civil Liberties Griffin, III, B. Thomas N. Donald Ogden, David W. Rieck, Block, Verrilli, Jr., Washington, H. Jenner & Harry Ass’n, In- curiae, D.C., Maryland Psychological for amicus American Study Sexuality, for Human stitute Advanced Of Sexologists, Society Study for the Scientific College Sex, Planning Associates. Population And Curran, Jr., (J. Bair, Joseph Asst. Gen. Atty. E.
Gary Baltimore, Gen., brief), respondent. for on both Atty. ELDRIDGE, MURPHY, C.J., and before Argued McAULIFFE, RODOWSKY, ADKINS and COLE, BLACKWELL, JJ. MURPHY, Reargued C.J., ELDRIDGE, before *
COLE, RODOWSKY, McAULIFFE, ADKINS and CHASANOW, JJ.
ELDRIDGE, Judge.
Two major presented First, issues are case. this does Maryland (1957, Code 1987 Repl.Vol.), Art. pro- viding criminal for penalties perverted “unnatural sexual practices,” encompass consensual, noncommercial, hetero- sexual activity between adults in the the home? Second, if Art. criminalizes such activity, does it violate either the Constitution of the United States or the Maryland of Rights? Declaration As we shall answer the question in negative, first we do reach the second question.
I. An eight-count indictment was filed in the Circuit Court for Montgomery County, charging petitioner, Steven Schochet, Adam with various sexual offenses. All of the charged offenses were committed upon same alleged victim during night one October 1986. one
Counts and four charged indictment Schochet rape degree the first rape in degree, second in violation of Maryland (1957, Code Repl.Vol.), Art. 462 and upon based engaging his in vaginal §§ witness, intercourse with the complaining Sullivan, Dovie allegedly by force, force or threat of against will and *4 the without consent of the witness. complaining Counts two, three, five, and six of charged the indictment Schochet degree offenses, with first and second sexual in violation of 27, 464A, Art. 464 and based his upon allegedly engag- §§ in anal ing intercourse and Sullivan, fellatio with Ms. all by * Adkins, J., retired, participated hearing now in the and conference of Court; this case while being an active member of after this recalled Constitution, IV, 3A, pursuant participated the Art. he § also in the adoption opinion. decision and the of the force, the against
force of will and without the or threat complaining consent the witness. sodomy, Schochet in violation charged
Count seven with 27, 553,1 anal allegedly having his upon of Art. based § which is the eight, with Ms. Sullivan. Count intercourse convicted, charged was him count on which Schochet only “a and sexual committing perverted certain unnatural with Sullivan, fellatio, in violation of namely Ms. practice with” 27, pretrial a motion to dismiss Art. 554.2 Schochet filed § they on the were eight ground counts seven and infirm, the but the circuit court denied constitutionally motion. entirely trial different versions the
At
two
Schochet’s
charges
to the
presented
rise to the
were
giving
incident
27,
sodomy
scope
Art.
offense of
under
1. As to the nature and
the
State,
(1964);
see,
e.g.,
Dovie Sullivan testified that on the evening of October 1986, she was at home her 11-year-old daughter. The daughter went to bed p.m., about 10:30 and Ms. Sullivan stayed up, drinking and listening to music in celebration of her divorce. Ms. Sullivan heard a knock at her door at 12:30a.m. approximately door, When she answered the she defendant, found Schochet, Steven whom she did not know, standing outside. He said that he looking was for a Denise, friend named and he asked to use the telephone to call apartment next to Sullivan’s. Ms. Sullivan let him in the apartment to use telephone.
When Schochet was inside the apartment he began to admire the stereo system and continued to make conversa- tion about it. Ms. Sullivan tried to direct his attention to the telephone, her, but he ignored kitchen, went into the and asked fix her to him a drink and something to eat. leave, When she told him to he looked at her very strangely, she became frightened. He continued to make himself at home and acted as if he belonged in her apartment. He wandered throughout the apartment while Ms. Sullivan followed him asking to leave. She testified that she did not scream or try get to help because her daughter asleep, and she feared for her daughter’s safety as well as her own.
Ms. Sullivan on testify went to that Schochet eventually made his to way her bedroom where he forced her to perform fellatio and vaginal have sexual intercourse. She that, stated although he had no weapon and made no overt threats, she Next, was afraid of him. Schochet him- fixed self eat, something then took bedroom, her back to her and again forced her perform fellatio and have vaginal and anal intercourse. Afterwards, he told her that he needed some rest and went to sleep on the bedroom floor. Sullivan, got the next she
According morning up to Dovie *6 daughter to send her off to school and told Schochet to her daughter in the so that see remain bedroom would that she locked the door him. Sullivan stated bedroom school, her left for she ordered daughter behind her. After he to stated that made her follow Schochet leave. Sullivan car not call the When police. him to his so that she would off, her apartment drove she went back to and Schochet she and sleep a few hours. After awoke was went to for work, heard at ready leave for she a knock getting to peephole on the door and saw through door. She looked him giving He accused her of “crabs” that it was Schochet. him he money that she some so that give and demanded door, open to a refused to and go could doctor. She hours, and, to for a left. then work few Schochet She went in home, she Schochet’s car when she returned saw into her and parking apartment, lot. Ms. Sullivan went at the door. policemen within five minutes there were four had report her about a which received They questioned they police an officers noticed that concerning abused child. left she could contact upset she was and a number where if later visited someone she to talk. Sullivan was wanted detective, a gave she the detective state- by a female and which led previous night the events of concerning ment charges against to the Schochet. to version of following testified
Steven Schochet Schochet was night events. On the of October Park, He attending fraternity party College Maryland. a Denise. He had to visit a friend named party left the he apartment. at her When frequently visited this friend she his he was told that apartment, at friend’s arrived went to the other building. at Schochet party a another coming one of the he heard loud music from building where he found he Assuming party, had apartments. door, Scho- Dovie Sullivan answered. on the and knocked him she Denise, told could for and Sullivan chet asked too loud. She invited him her music was not hear because music asked him what he in, down the him turned her, a and she said she did not know He told wanted. leave, she told Schochet to he started to Denise. When coke, him and they a drink. fixed relax and have She him, unzipped kiss then his began began to talk. She to him him. invited to her fellatio on She pants performed bedroom, sexual intercourse. and there had consensual they attempt did he have or testified that at no time Schochet intercourse with her. have anal bed- morning,
The next Schochet remained Sullivan’s off to daughter she sent her request room at her while he left when she sleep, He and later school. went back discovered that he him to. He went home and there asked to Sullivan’s had contracted Schochet went back “crabs.” if him to a doctor and pay to ask she would take apartment *7 him give would not for the examination and treatment. She him the doctor. Schochet testified the or take to money the in retaliation he called angry;
that he felt used and abusing her that Sullivan was police falsely reported daughter. and the denial of
Following presentation the of evidence the defense judgment acquittal, motion for Schochet’s that, the under the requested jury the court to instruct case, consent was a defense to the circumstances of the and fellatio. eighth charging sodomy seventh and counts did not Defense counsel that the criminal statutes argued two heterosexual to consensual conduct “between apply adults, in of their homes.” The court of one denied defense counsel’s request. denied the The court also was a defense to argue to to the that consent request jury charges eight. in counts seven and counts one regard court’s instructions with to six, concerning the through jury the court informed the lack of consent and force prosecution prove need for the six, regard to count example, or threat of force. For fellatio, the sexual offense based on charging degree second as follows: jury part court instructed the degree of second “In order to convict the Defendant must prove: sexual offense the State the Defendant committed fellatio ... with “One: That Ms. Sullivan. by committed force or threat That the act was
“Two: of force. the con- the act committed without
“Three: That was sent of Ms. Sullivan.” “fellatio,” the court went on: defining
After necessary depends upon of force “The amount is re- No amount of force particular circumstances. the resist- it must be sufficient overcome quired, but ance of the victim. resisted, satisfied that the victim either
“You must be force, by or threat and the resistance was overcome from force, prevented resisting by was or that victim or threat of force. force of her resisted to the extent
“The victim must have time, resistance, or to resist unless her will ability at the force, or fear that was reasonable was overcome under the circumstances. act, to the sexual agreeing consent means
“Finally, force, threat of as a result of submitting rather than force.” however, the court instructed regard eight, to count
With “that the prove that the had to that all State jury Sullivan, mouth of Ms. penis his placed defendant *8 is the act of fellatio.” which eight argument regarding Attorney’s jury count also 3. State's He stated: emphasized was not a defense. that consent fellatio, sodomy and to do with the "The last two counts have charged I with has been with. will start crimes that the Defendant those, pretty the easiest. because those are much Judge you, Maryland, instructed is basical- as the has “The law of particular crimes. ly to those that consent is not a defense easy part of it is pretty as far as the fellatio “In this case it is admission, Defendant, concerned, commit- his own because the act, you all engaged with Ms. Sullivan. So in that ted that — offense, applies in any problem the first as it have shouldn’t this case."
723 deliberations, returned of jury After verdicts seven, through as to counts one the count guilty including A of was returned as to count sodomy. guilty verdict eight, charge perverted prac- of unnatural and sexual tice, i.e., fellatio. Schochet received a sentence five eighteen with all months and was to years suspended but be placed years supervised probation upon on five his re- sentence, Upon lease. motion to reconsider the Schochet’s incarceration, him the court resentenced to five all of years suspended, placed which was him on five years supervised probation. appealed Special argu-
Schochet to the Court of Appeals, 27, 554, ing primarily that Art. “is unconstitutional as applied private noncommercial sexual acts between consenting heterosexual adults.” Schochet also claimed that his sentence impermissible was based on considerations and that it violated the Amendment Eighth United States Constitution.
A
Special Appeals
divided Court of
affirmed.
v.
Schochet
314,
(1988).
75
Schochet 204. certiorari, of petition filed a for a writ
Schochet whether, the under the United States raising question Art. Maryland Rights, and the Declaration Constitution noncommercial, 27, 554, the consen applied is valid “as sual, pri heterosexual adults sexual intimacies between sentencing also raised the same two issues vate.” Schochet The Special Appeals. had raised the Court of which been certiorari, arguing for a cross-petition filed a writ State constitutionality, applied as question that the 554’s consensual, noncommercial, private, heterosexual conduct the verdicts did not presented jury’s because really was the fellatio consensual and be mean that necessarily sufficient evidence of force. cause the had introduced State and denied granted petition This Court Schochet’s evidence, light charges, of the cross-petition. State’s instructions, arguments jury, before jury six), on count acquittal (particularly verdicts jury’s Appeals that the consti Special the Court agree we presented. jury issue raised Schochet was tutional *10 prove had failed to that that the State concluded obviously was nonconsensual. activity the sexual before us on the argued briefed and initially The case was Af- petition. certiorari presented issues Schochet’s three added a sponte the Court sua argument, first oral ter the reargument. The additional issue and ordered new issue was as follows: construction, considering statutory matter of
“As a courts will con- possible if reasonably principle constitutional to avoid a serious a statute so as strue Vol.), Art. (1957, Repl. 1987 Code question, Maryland does noncommercial, consensual, hetero- 554, 27, encompass in the of the adults sexual between home?” indicated, question answer this we previously
As therefore, not decide the other issues and, do negative raised.
II.
“
legislative
‘if a
act
emphasized
has
This Court
one of
interpretations,
reasonable
susceptible
is
of two
a decision as to the constitutionali
not involve
which would
would,
other
the construction which
of the act while the
ty
pre
is to be
constitutionality
avoids the determination
”
308 Md.
Brewing
Brewery,
ferred.’
v. Stroh
Heileman
(1987),
746, 763-764,
quoting
1225
State
Maryland
521 A.2d
Kuhn,
496, 505,
270 Md.
Examiners v.
Board
Barber
216,
(1973).
‘a construc
differently,
221
“Stated
312 A.2d
statute,
as to its constitution
giving rise
doubts
tion of a
” Ibid.,
language permits.’
if the
should
avoided
ality,
be
219 Md.
v. Missouri
County
Realty,
quoting Baltimore
424,
(1959).
Board
Trustees
155, 159, 148 A.2d
427
See
97,
(1989),
Moreover, among the courts addressing the constitution- ality consensual, of punishing heterosexual acts between consenting in private, adults there significant is a division throughout the country. For example, Pilcher, State v. (Iowa 1976), N.W.2d the Supreme Court of Iowa held that a statute similar to Art.
“unconstitutional as an invasion of
rights,
fundamental
such as the personal right of privacy, to the extent it
attempts to regulate through use of criminal penalty
consensual
practices performed in private by
[oral sex]
persons
adult
of
opposite
the
sex.”
York,
Court of
of
Appeals New
in People Onofre,
v.
476, 488,
51
947,
N.Y.2d
951,
434 N.Y.S.2d
936,
415 N.E.2d
cert,
(1980),
940-941
denied,
987,101
2323,
451 U.S.
68
S.Ct.
(1981),
L.Ed.2d 845
held that a New York statute violated
the federal
right
constitutional
when
privacy
applied to
“
persons deciding
engage
to
in
conduct,
‘deviant’ [sexual]
long
so
as the decisions are voluntarily made
by adults
a
noncommercial, private setting.” The New York court also
statute,
held
the
that
by proscribing certain sexual conduct
by persons
other,
not married to each
but not prohibiting
the same conduct by persons
other,
married to each
violated
the right
equal protection
492,
of the
51
laws.
N.Y.2d at
953,
727
Bonadio,
also
See
Cotner
(1980).
91,
490
415 A.2d
Pa.
47
cert, denied,
Henry,
873,
(7th Cir.),
v.
875
393 U.S.
394 F.2d
Buchanan v.
132,
(1968);
847,
“Conceding purposes argument for husband engaging could in fellatio in prosecuted wife not be for spouse, or her it creates private his we do believe *12 persons an class to treat unmarried differ- unreasonable The forbid con- ently. types state can certain sexual The prose- duct. statute under which the defendant was as heterosexual unnatu- cuted forbids homosexual well as sex acts. has as to homosexual upheld ral It been acts____ state, In adultery this fornication and have 1805, at 14-184. proscribed been since least G.S. We state, Fourteenth Amend- consistent with the believe to ment, prohibit can so as classify persons unmarried forbidding fellatio males and females without between We hold that couples. the same acts between married protect right privacy does the constitutional defendant this case.”
728
266, 270-271,
84,
Dixon v.
256 Ind.
268 N.E.2d
(1971),
adult male
an
was convicted for an act of cunnilin-
gus performed
an adult female at
upon
the latter’s home.
court, assuming
“for the sake of argument
that the
consent,”
prosecuting witness did
held that the conviction
did not violate the defendant’s federal
right
constitutional
Elliott,
305,
of privacy. See State v.
89 N.M.
We neither nor any of the above-cited cases. out simply point We even division approximately among appellate courts rein- forces our conclusion that the constitutional issue here is a presented very difficult one.
III.
Although the State does not contend that the constitution-
insubstantial,
right
al
issue in this case is
argue against
does
applying
principle
State
that a
statute should be construed so as to avoid a serious consti-
question.
tutional
The State
notes that
correctly
“[o]nly
a statute is
reasonably susceptible
when
...
two differ-
ent
can
interpretations
deciding
this Court avoid
a constitu-
by choosing
interpretation
tional
that is
question
clearly
Brief,
(Respondent’s
1).
valid.”
6 n.
Supplemental
p.
See
308 Md. at
Brewing
Brewery, supra,
Heileman
v. Stroh
(“a
In urging susceptible 554 is not to a construction § consensual, coverage which excludes from its noncommer- cial, activity heterosexual between adults home, points the State out that the statute makes no consent-nonconsent, reference to the factors of commercial- noncommercial, emphasizes: etc. The State “The statute no draws distinction between consensual and nonconsensual and, further, does not distinguish commercial from noncommercial, public private, from homosexual from het- erosexual, unmarried, married from juvenile or adult from activity. provision The applies ‘[ejvery person ... who shall placing be convicted of his or organ her sexual (State’s mouth of any person____’” other Supplemental Brief, 4). p. overlooks, however,
What the State’s argument is that the very sweeping broad and nature of 554’s language, with no specifics except a description of some of the “unnat- ural or perverted” sexual encompassed, acts renders the statute reasonably susceptible different constructions. concerning consent, statute’s silence the matters of etc., privacy, marriage, legitimate questions regard- creates ing the reach of the statute. 554, which,
General statutes if given like their broadest and most encompassing meaning, give rise to constitutional questions, have regularly subject narrowing been constructions so as to avoid the constitutional issues. For Products, Yangming Transport supra, v. Revon example, 311 Md. 536 A.2d a statute involved which stated interstate, any foreign corporation doing that a intrastate foreign registering business this without or *14 a in the this qualifying, may maintain suit courts of literal, the all-en- giving State. Because statute its broad meaning un- present would substantial issues compassing Clause, con- der the federal constitution’s Commerce we only apply foreign corporations strued statute to the a of engaging in substantial amount localized business activity Maryland. in D., 295 314, example is In Re James 455 Md.
Another
finan-
(1983), involving
making parents
A.2d
a statute
966
resulting
for certain losses
from their
cially responsible
literally
The statute
to “the
delinquent
applied
child’s
acts.
act,
committing delinquent
any
child”
a
parent of a
without
the
relationship
on the
between
limitation whatsoever based
Court,
This
applying
principle
the child.
the
parent and
interpreted to avoid a serious
that a statute should be
“
issue,
‘to construe the
more
constitutional
decided
statute
”
wording.’
Wilson v. Bd. of
273
of
given
(1974),
language
also dealt
broad
which was
305
in order
concern-
a
construction
to avoid issues
narrowing
Wilson
proposed
involved a
ing
language’s validity.
City charter which prohibited
to the Baltimore
amendment
City
of
stadium in Baltimore
“with
any
the construction
provi-
funds.”
the rule that
Again applying
use of public
their
so as
doubts over
sions should be construed
to avoid
“public funds”
Court held that
the words
validity, this
as to
doubt
avoid
interpreted
like
554 have elsewhere been
tory provisions
§
noncommercial,
consensual,
activity
heterosexual
to exclude
Commonwealth
example,
For
private.
adults
between
Balthazar,
298,
(1974), the
v.
The that a statute will be construed principle applicable to Art. question avoid a serious constitutional 27, encompass principle, 554. 554 does Under § § consensual, noncommercial, activity between heterosexual in the of the home. privacy adults
IV. 27, involving Art. reported opinions of this Court 554, proscribing 553 opinions as well as the under § § apply 554 does not sodomy, confirm our conclusion that § 732
noncommercial, acts consenting heterosexual between opinions in the of the home. None of the adults convictions under either 554 or upholding this Court has sexual under such circum- 553 involved stances.
Thus,
554 or 553
involving
cases
this Court
many
§§
McKenzie
for homosexual
prosecutions
activity.
have been
State,
v.
Bradbury
597,
(1964);
v.
Finally,
in
engage
or
to
fellatio
engaging
attempting
on
based
§
Neville
“private.”
not be considered
places
in
which could
State,
v.
State,
Haley
(1981);
v.
290 Md.
“Neville asserts § private.’ opposite acting sex adults of the consenting to for certio- petitions in the questions presented While being ‘pri- here as the conduct rari characterized have proper- may well be vate,’ characterization and while that contexts, here other to the involved applied locations ly loca- given conduct in a particular nature of private is a purposes right privacy constitutional tion for all of circumstances. degree matter of determined consensual, fellatio, Here, even if the conduct where assume, constitutional arguendo, if and even we pro- some circumstances autonomy could under personal act, do not that constitutional tect that sexual we believe 554 under autonomy prohibits enforcement personal present case.” the facts of >fe $ }¡c [*] [*] sje cases which “The of consensual fellatio majority clear personal autonomy on arguments have considered based other circumstances to have looked the location and right apply.” determine if could any 378-379, 577): (290 A.2d at The Court then held Md. at Md.Code, Art. constitutional- “We hold that was engaged in applied petitioner to each Each ly petitioner. hours in activity during daylight this intimate sexual doors, in a which was well place which was out as accessi- equally and which was populated community, petitioners.” as it was to persons ble to uninvited other And, summarizing throughout country, cases many (290 A.2d at observed Md. at opinion Neville omitted): footnotes acts], which could be read oral prohibiting
“Statutes [sex adults, consenting have not conduct include between applied validly been struck down where statute private, his was not in to the conduct defendant because a minor or was or was with place prison, took *17 by force.” accomplished
Despite cases in this many involving Court 554 and §§ consensual, none has a prosecution been on based noncommercial, heterosexual activity between adults privacy of the home. This a strong is indication that such conduct not is within the contemplation 554. §
V. In addition to its argument 554 cannot reason ably interpreted to be exclude consensual conduct found case, in this a legislative argument. State makes history however, The argument, upon legislative based any history associated the initial 554 by enactment of Ch. Instead, of the Acts of 1916.5 legisla it is based upon history concerning tive 573 of Ch. the Acts of 1976. Ch. the Acts 1976 essentially repealed former Art. 461-462A and added new sections §§ to 461-464E Art. 27 of the Code. The effect the new alia, was, inter rape sections divide the offense of into first degree rape degree and second and to enact rape, new sexual offenses in the degree through first the fourth Pitcher, Rape See And Other Sexual degree. Law Offense Reform, In (1977). Maryland, U.Balt.L.Rev. Where adults, persons involved are all and the victim is not defective, mentally physically incapacitated, helpless, or all require proof these new offenses the act was “against the will and without the consent of the other person.”
As as originally approved introduced and Senate Committee, Proceedings Judicial Senate Bill which be- Acts came Ch. 573 of the would have Art. repealed Proceedings 553 and 554. The Senate Judicial Com- §§ mittee on Bill 358 report Senate stated:
“Present law proscribes (sodomy) anal oral consensual (perverted practices) sexual acts. Since these crimes parties any legislative 5. have not called our attention case, history statutory interpretation relevant to the issue in this history. legislative we have discovered no such *18 con- committed between 554], when 553 and §§ [under prosecuted because adults, rarely very are senting nature, are not they personal their clandestine recognition by prohibition.” statutory subject proper enactment, Bill Nevertheless, Senate before final sections and 554. Those repeal as not to amended so §§ intact. were left legislative history shows this 1976 argues
The State encompass 554 to Assembly intended General § noncommercial, activity between consensual, heterosexual this is shown The claims that in State private. adults 554 extends to recognition that Committee’s the Senate § refusal Assembly’s the General activity consensual 554. repeal § unpersuasive. There are several argument State’s have chosen to Assembly may why
reasons the General with the view that fully which are consistent retain § consensual, noncommercial, heterosex- not 554 does cover § example, in For private. activity between adults ual that consensual homo- may have decided Assembly General prohibited, still or that consensual sexual acts should be in Neville such non-private places, as involved sexual acts supra, criminal. Some consensual should remain not, involving age- minors because of may sexual acts offense fall within the new sexual requirements, bracket consensual, so as to exclude Construing statutes. § noncommercial, pri- between adults heterosexual which vate, quite Many viable. activities leaves § rape and sexual offense prohibited by the would not be prohibition of 554. fall within the would still statutes case, of this Art. does circumstances Under the petitioner was convict- the act for which encompass be must reversed. Therefore the conviction ed. SPECIAL APPEALS THE COURT OF OF
JUDGMENT THE COURT OF REMANDED TO REVERSED. CASE REVERSE WITH DIRECTIONS TO APPEALS SPECIAL FOR MONT- OF THE CIRCUIT COURT THE JUDGMENT GOMERY AND COUNTY REMAND THE CASE TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY WITH THAT DIRECTIONS A JUDGMENT ACQUITTAL OF BE ENTERED. IN COSTS THIS COURT AND IN THE COURT OF SPECIAL BE APPEALS TO PAID BY MONT- GOMERY COUNTY.
Concurring CHASANOW, J. opinion by MURPHY, C.J., Dissenting opinion by which *19 J., McAULIFFE, joins.
MURPHY,
Judge,
Chief
dissenting.
The majority holds that Maryland’s “Unnatural or per-
practices” statute,
(1957,
verted sexual
Maryland Code
27, 554,
Repl.Vol.),
prohibits
Article
among
which
fellatio
§
acts,
other proscribed
does
encompass
not
such conduct
where it is
in
engaged
not
for commercial purposes and
consenting
involves
of opposite
adults
sexes in
the
not,
of
therefore,
the home. The Court does
address the
whether,
constitutional
of
in
question
the
of
circumstances
case,
fellatio,
this
of
the act
is
proscribed by
conduct
§
protected by
right
the constitutional
of privacy.
disposition
case,
its
of
the
applied
this
Court has
the
principle that where a statute
susceptible
is
to two reason-
interpretations,
able
which
interpretation
avoids a de-
of
constitutionality
termination
the statute’s
is
I
preferred.
do not find that
the
is
principle
applicable in this case
the language
reason-
susceptible,
because
of
554 is not
§
ably,
the
interpretation placed upon
to
it
the
Court.
significant
That there
be a
may
throughout
division
the
as to
constitutionality
country
the
of statutes
to
similar
no
provides
basis to conclude that the
language
the
§
itself more
Maryland statute lends
to
than one reasonable
face,
its
interpretation
provisions.
On its
554 does
§
consensual, noncommercial,
exclude from coverage
its
het-
Indeed,
erosexual
in private.
between adults
the
is
in its
it
coverage;
statute
all-inclusive
does not distin-
acts,
guish
nor
between consensual
nonconsensual
does
noncommercial sexu-
commercial and
it distinguish between
from heterosex-
private,
from
homosexual
public
al activity,
unmarried,
juvenile
from
activi-
ual,
or adult
married from
acts deemed
be
criminalizes sexual
ty. The statute
acts,
pro-
describes those
“perverted,”
or
“unnatural”
prohibited
from the
conduct.
exceptions
no
vides
in
staid
our
enacted
time
Section
was
far less
people
the sexual mores
were
when
history
prevail
today’s
than the moral attitudes that
tolerant
history
is
sheds
legislative
While there
no
which
society.
its
light
legislative
purpose
enacting
aim or
on
it does not
convey
meaning
but one
plain words
—that
consensual,
here,
act of
exclude, as
noncommercial
The statute
private.
heterosexual adults in
fellatio between
unchanged
day.
legisla-
has
this
Whatever the
remained
perverted
“unnatural or
sexu-
outlawing
tive motivation for
practices”
grounds
public
al
it
on
morality
—whether
meaning today
is the same
public health —the statute’s
meaning
language
as
in 1916. That
its
states,
cannot be
“sweeping,”
majority
broad and
as
holding
it is
bootstrapped
thereby
into a rational
sub-
interpretations.
contrary,
to two
On
ject
reasonable
*20
language
plainly intended to
all-encompassing
statute’s
“perverted”
practices,
reach
sexual
those “unnatural” or
described,
exception. No other
vividly
therein so
without
conclusion
evident.
reasonable
type
as I do that
554 includes the
of sexual
Concluding
case,
in
I
consider the constitutional
conduct
this
would
nonmarital, private consensu-
question presented —whether
of
characterized
type
by
al
heterosexual relations
a
adult
are
perverted”
protected by
legislature
the
as “unnatural
issue, I
of
this
stand
right
privacy.
the constitutional
On
in
Appeals
of the
of
Scho-
majority
Special
with the
Court
State,
(1988),
Judge McAULIFFE authorizes
to state that he
joins
dissenting
in the views
this
expressed
opinion.
CHASANOW, Judge, concurring:
I
concur
in this
judgment
case for
reasons
Judge
stated
Wilner in
dissenting opinion
his
Schochet
(1988).
Md.App.
v.
STATE of Term, Sept. No. 1989. Appeals Maryland.
Court of 9, 1990. Oct.