State v. BaxleyState v. Baxley
John D. Rawls, New Orleans, for respondent.
Grover Rees, III, Washington, DC, for Louisiana Counsel Knights of Columbus, Christian Coalition of Louisiana, Louisiana Public Policy (Amicus Curiae).
R. James Kellogg, New Orleans, Evan Wolfson, New York City, for Lambda Legal Defense and Educ. (Amicus Curiae).
Glenn J. Reames, New Orleans, for The John Doe Group (Amicus Curiae).
W. Lloyd Bowers, New Orleans, for Nat. Lesbian and Gay Bar Ass‘n (Amicus Curiae).
Marilyn M. Fournet, Baton Rouge, for Louisiana Ass‘n Crim. Defense Lawyer (Amicus Curiae).
Denise Leboeuf, New Orleans, for American Civil Liberty Union (Amicus Curiae).
Jeffrey T. Reeder, New Orleans, for Friends for Life, Capital Area Hiv-Aids Service, Philadelphia Center, No Aids Task
F. Clayton Latimer, New Orleans, Counsel for Nat. Ass‘n of Social Workers (Amicus Curiae).
Ted L. Luquette, New Orleans, Ruth E. Harlow, William B. Rubenstein, Ralph E. Jones, New York City, for American Friends Service Committee, The Com‘n on Social Action of Reform Judaism, Dignity/USA, Office for Church in Soc. of the United Church of Christ, General Bd. of Church and Soc. of the United Methodist Church, Unitarian Universalist Ass‘n, Universal Fellowship of Metropolitan Community Churches, First Unitarian Universalist Church, New Orleans, Task Force for Gay and Lesbian Concerns of the First Unitarian Universalist Church New Orleans, Victory Fellowship Metropolitan Community Church, Shreveport, Reverend Deanne B. Aime, Rabbi David Goldstein and Reverend William P. Richardson, Jr. (Amicus Curiae).
Ronald L. Wilson, New Orleans, for Edwin A. Murray, and Arthur A. Morrell (Amicus Curiae).
WATSON, Justice.1
This is a direct appeal from a trial court judgment holding the crime against nature statute,
FACTS
Since the trial judge granted a pretrial motion to quash, the only details about the alleged crime are in the police report, the bill of information and the pleadings. According to the state, on June 4, 1992, Johnny Baxley approached an undercover police officer who was sitting on a New Orleans French Quarter stoop and offered to pay the officer $20 if he would allow Baxley to perform fellatio on him. The officer agreed and stood up, which signaled backup officers to arrest Baxley. The undercover officer was not wearing a wire; no money changed hands. Baxley admits discussion of consensual fellatio but denies a monetary offer.
Baxley was charged by bill of information with violating
LAW AND ANALYSIS
A. Crime against nature is:
(1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:42, 14:42.1 or 14:43. [Rape statutes.] Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.
B. Whoever violates the provisions of this Section shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.
Initially, this Court must determine whether Baxley has standing to challenge the statute‘s constitutionality. “As a general rule a party does not have standing to challenge the constitutionality of a statute unless the application of that statute adversely affects him.” State v. Brown, 389 So. 2d 48, 50 (La. 1980). Accord State v. Rue, 236 La. 451, 107 So. 2d 702 (La. 1958).
did wilfully and unlawfully violate R.S. 14:89, relative to Crime Against Nature, in that the said JOHNNY L. BAXLEY solicited POLICE OFFICER WILCE GILBERT with the intent to engage in unnatural carnal copulation for compensation to wit: ORAL COPULATION in the amount of TWENTY and 00/100 ($20.00) dollars.
The trial court found that subpart (A)(2), which prohibits solicitation of compensated unnatural carnal copulation, must be considered with subpart (A)(1), which simply prohibits unnatural carnal copulation. The trial court found the two subparts were not severable; if one subpart were unconstitutional, the other subpart would fall “of its own weight.”
After finding Baxley had standing to contest the statute‘s unconstitutionality, the trial court held
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
Specifically, the trial court found:
R.S. 14:89 makes it a crime to engage in or perform certain acts with consenting adults, in the privacy of the bedroom.... The performance of the act itself with a consenting adult, in the privacy of one‘s bedroom is protected by that concept of privacy explicit in our Declaration of Rights. Absent a showing by our Legislature that there is some compelling state interest in regulating the behavior of consenting adults in the privacy of their bedroom, this statute is fatally flawed.
I am finding this statute unconstitutional not because it is overbroad, nor because it‘s vague, I am finding it unconstitutional because it seeks to regulate behavior clearly protected by Article 1, Section 5 of our constitution. That is, it seeks to regulate sexual behavior in the confines of one‘s bedroom.
R.S. 14:89 makes it a crime to engage in those acts regardless of who with or where performed and regardless of whether the acts are performed for compensation....
The trial court erred in finding, under the facts alleged here, that Baxley has standing to contest the constitutionality of
Through
On the facts presented, it is unnecessary to determine whether
Baxley argues that he could be convicted of attempted crime against nature under
This reasoning is erroneous.
It is generally recognized by legal authorities and other jurisdictions that solicitation of another to commit a crime is only preparatory to the crime and not an overt act which would support a conviction for attempt of the crime solicited. Solicitation is preparation rather than perpetration. To call solicitation an attempt is to delete the overt act element necessary for an attempt. 2 Wayne R. LeFave and Austin W. Scott, Jr., Substantive Criminal Law § 6.1(f), at 16-17 (1986); 2 Wharton‘s Criminal Procedure § 261, at 121 (Charles E. Torcia ed., 13th ed. 1990); William L. Clark and William L. Marshall, Crimes § 4.05, at 226 (7th ed. 1967); 1 William L. Burdick, Law of Crime § 106, at 117 (1946); 76 A.L.R.3d 842, § 4, at 856-57 (1977); State v. Green, 116 N.M. 273, 861 P. 2d 954 (1993); State v. Molasky, 765 S.W. 2d 597 (Mo. 1989); Van Bell v. State, 105 Nev. 352, 775 P. 2d 1273 (1989); State v. Otto, 102 Idaho 250, 629 P. 2d 646 (1981); People v. Spencer, 66 Misc. 2d 658, 322 N.Y.S. 2d 266 (1971); State v. Miller, 252 A. 2d 321 (Me. 1969); Gervin v. State, 212 Tenn. 653, 371 S.W. 2d 449 (1963); State v. Bereman, 177 Kan. 141, 276 P. 2d 364 (1954); State v. Lowrie, 237 Minn. 240, 54 N.W. 2d 265 (1952); People v. Pippin, 316 Mich. 191, 25 N.W. 2d 164 (1946); State v. Blechman, 135 N.J.L. 99, 50 A. 2d 152 (1946); Cole v. State, 14 Okl. Crim. 18, 166 P. 1115 (1917); State v. Butler, 8 Wash. 194, 35 P. 1093 (1894); State v. Harney, 101 Mo. 470, 14 S.W. 657 (1890).
This has been found true in cases dealing with solicitation of sexual activity. See Van Bell v. State, supra (sexual assault); People v. Spencer, supra (sodomy); State v. Miller, supra (indecent liberties with a child); State v. Bereman, supra (sodomy); People v. Pippin, supra (gross indecency); Cole v. State, supra (adultery); State v. Butler, supra (adultery); State v. Harney, supra (statutory rape).
The authorities opposing this view are limited. 1 Joel P. Bishop, Criminal Law
The majority view is persuasive and should be followed. See State v. Gamble, 504 So. 2d 1100 (La. App. 5 Cir. 1987) (where an act beyond solicitation was required to constitute an attempted crime against nature under R.S. 14:89.1).
CONCLUSION
Baxley is not charged with conduct violating
For the foregoing reasons, the judgment is reversed and the case is remanded to the trial court for further proceedings according to law. Logan v. Louisiana Dock Co., Inc., 541 So. 2d 182 (La.), cert. denied, 492 U.S. 939, 110 S. Ct. 30, 106 L. Ed. 2d 639 (1989).
REVERSED AND REMANDED.
CALOGERO, C.J., concurs in part, dissents in part and assigns reasons.
ORTIQUE, J., concurs and assigns reasons.
CALOGERO, Chief Justice, concurring in part, dissenting in part.
The legislature‘s proscription of commercial solicitation of unnatural carnal copulation is not unconstitutional, and, if included in part of a constitutional statute, would be a prosecutable crime. The majority‘s implicit determination regarding the foregoing is a matter in which I concur. Nonetheless, because I believe this relator has standing to attack the constitutionality of subsection A(1) and the full statute,
Defendant, who has broadly been charged with violating
Because this statute is comprehensive, proscribing both heterosexual and homosexual, both private and public, and both commercial and noncommercial activity, it invades the area of protected privacy recognized in
ORTIQUE, Judge, concurring.
Defendant is charged with committing a crime against nature, solicitation of unnatural carnal copulation, a violation of
The language of