*1 Arizona, Appellee, The STATE of Appellant. CALLAWAY,
Willie Edward 642-2. 2 CA-CR 2 CA-CR
Nos. Arizona,
Court of 2. Division
Nov. 1975.
Rehearing Dec. Denied 20, 1976. Jan. Review Granted Babbitt, Atty.
Bruce E. Gen. William Frondorf, Schafer, III, Shirley H. J. Phoenix, Gen., Attys. appellee. Asst. for Neis, County Pima De- M. Public John Peasley, fender Public Kenneth Asst. J. Defender, Tucson, appellant. OPINION KRUCKER, Judge. Callaway charged Edward
Willie
(Supp.
sodomy,
A.R.S. Sec. 13-651
*2
eye,
her in
1973),
committing
struck
forced her
and
a lewd and lascivi-
manner,
act in
unnatural
have anal intercourse with
He testi-
ous
him.
lovemaking,
fied that
their
He
tried be-
(Supp.1973).
Sec. 13-652
voluntarily
on
Curlin
her mouth
jury
placed
and convicted
both counts.
on
fore
her,
years
penis.
slapping
his
him to six
He admitted
sentenced
The trial court
merely
and
stated
probation
sodomy conviction
that he had done so
to calm
on the
prison
her
on
down.
years
three to five
the state
conviction. He
the lewd and lascivious
neighbor
Curlin’s next-door
testified that
appeals.
now
he awoke to Curlin’s screams at about 3:00
13, 1974,
night
evening
September
question.
a. m. on the
In the
He heard
something
Margaret
against
Mon-
thumping
Curlin went to
Davis
the wall and
Taylor.
thought he
calling
with Carmen
heard
his
NCO Club
Curlin
name.
appellant.
they
Fry
There
met Tom
and
Curlin awoke around 10:30 a. m. when
during the
four had numerous drinks
boyfriend
her
arrived home. She had a
Fry.
evening and
danced with
Curlin
eye
black
and numerous bruises. When
14, police
her,
September
1:25
on
officers
At about
a. m.
interviewed
she was
hysterical.
Fry
Curlin and
left
the club and
Taylor
apartment.
to Curlin’s
and
drove
Appellant presents
questions
ten
for re-
car,
appellant,
left
in another
soon
who
issue,
dispositive
view but the
we deem
joined
apartment,
them. Once inside the
appeal
is whether A.R.S. Secs. 13-651
Taylor
appellant
and
went
bedroom
constitutionally pro-
violate the
while
Fry and Curlin
the liv-
remained
tected
do,
think they
appellant
Taylor
room.
started to
and hold that
facially
both sections are
intercourse,
stopped
Taylor
when
Appellant’s
void.
convictions must there-
was in
said she
love with someone else.
fore be reversed.
appellant
Taylor and
came out
the bed-
The state contends that because the
insistence.
room Curlin’s
evidence
appellant’s
indicated
acts were
Fry, Taylor
appellant
left Cur-
later
performed
consent,
without Curlin’s
appel
apartment
Appellant
lin’s
together.
re-
lant has
standing
assert the
turned
ain
few minutes to retrieve his
possessed
sexual privacy
by consenting
stayed
eggs
white coat and
some
eat
disagree.
adults. We
It is
true
prepared
had
earlier. Curlin tes-
Raines,
United States
S.
shortly
appel-
tified that
after his return
Ct.
litigant
grabbed
dragged
lant
her
the hair and
cannot
attack
statute’s constitutionality
she
her toward the bedrooms.
re-
When
rights
based on
persons
of third
not be
sisted, appellant
threw her
the wall.
fore the
if
the statute is constitution
bedroom, deposited
dragged her into
He
applied
rule,
al as
however,
to him. This
bed,
panties
her
and tore off her
exceptions.
has numerous
United States v.
panty-hose.
He then forced her to Brewer,
F.Supp.
(M.D.Pa.1973),
have anal and oral
intercourse
him.
aff’d,
(3rd
improper. goes. Our task in this case to resolve question properly properly applied that Division de- could not to in- penitentiary.
clined to mates answer. of a in Hughes And Md.App. A.2d 299 Supreme Court first United States stated: pri- recognized constitutional Connecticut, supra, vacy may expressly Griswold “While Griswold fore- application stating that: close the of its rule to un- adults, its rationale does clearly guarantees Bill specific not lend itself either a heterosexual or penumbras, of Rights have formed homosexual between unmar- guarantees that emanations from those The rationale Gris- give help them life substance. holding wold eulogy flows from its guarantees create Various lacking the marital status sta- zones of *4 tus the rule has no foundation.” 287 A. ‡ ‡ sjí ‡ % sfc at2d 305. right privacy which the of State, In Dixon v. N. Ind. presses legiti- recognition here is a for E.2d 84 (1971), the unmarried defendant’s 484, 85 at mate one.” U.S. at S.Ct. sodomy conviction of (cunnilingus) was 1681,14 at L.Ed.2d 514-15. upheld. rejected majority opinion The de- presented opinion Later in its the court fendant’s that the statute contention under inaccurately many what cases later right which was he convicted violated the marital “eulogy” termed a of the relation- Bruler, privacy J., of under De Griswold. ship : strongly dissented: privacy older right deal with a of “We private “I that believe conduct Rights our than the Bill of —older consenting adults is within [the] political parties, older than school our constitutionally protected zone. system. coming together is Marriage a is true that . Griswold worse, hopefully for or for endur- better the marital relation- concerned being ing, degree to the of and intimate ship. However, I valid reason to see is an association that sacred. right privacy limit the mar- of life, causes; a har- motes a of not majority opinion of- The faiths; political a bi- mony living, in being why fers no reason married should social loyalty, not commercial or lateral applicability make a difference in the of for as projects. Yet it is an association the is none.” statute I believe there purpose in our any a as involved noble at N.E.2d 90. at prior 85 S. decisions.” Baird, Eisenstadt v. 92 S. 14 L.Ed.2d Ct. at extended Ct. 31 L.Ed.2d imme- language, may cases of Because far right privacy of the Griswold that assumed diately following Griswold beyond view taken the narrow Wash mar- the right privacy the inhered Warner, Pruett, Hughes and Dix ington, In Pruett v. riage relationship alone. on, vi supra. In court held Eisenstadt the (Tex.Crim.App. 463 S.W.2d protection clause equal the olative of 1970), refused to strike down the court dis prohibited that Massachusetts statute un- as violative Texas statute contraceptives unmarried tribution of it persons’ right privacy because persons. In persons not to married as rationale based viewed Griswold opinion court stated: its Washington v. relation. the marital right that in Griswold “It is true Rodriguez, N.M. the mari- privacy question inhered prison inmates defendants were couple relationship. Yet marital tal sodomy. The convicted of who were a mind independent entity with is not an right alia, held, inter that Griswold purpose even as own, tainly cannot claim an association its heart of separate weighty as that of the abortion statutes each with two individuals unconstitutional, as makeup. If struck down where emotional intellectual and brought ques- fetus it is harm to the anything, privacy means right of individual, tion. married or right single, to be free ernmental damentally affecting cision whether to See Stanley v. intrusion into Georgia, 394 U.S. from unwarranted bear person matters beget a (1969).” so fun- 557, 89 child. gov- de- If the might sual Supp. at 607-08. [******] strike simple question down were the statute.” 363 F. involved, of adult consen- this Court think that view of Gris- (Emphasis original). wold and Eisenstadt and cases follow them, it that makes clear language argument no sound This can be made persons, wheth- all in sexual conduct reasoned not. The better er between adults “fundamental” indicated after Eisenstadt have cases when the adults are mar “un- ried to other. convictions each vio- sex acts committed natural” deemed fundamental it because is basic Lovisi v. concept late the individual our Ameri *5 F.Supp. (E.D.Va.1973), 363 620 can Slayton, necessary culture and because it is a prerequisite stated in dictum: enjoyment the court the to effective of all our other fundamental As Ei expressed in Ei- . . . the rationale and its progeny recognized, senstadt have protect the manner extends to senstadt these wholly reasons are unrelated to the relations between unmarried of sexual marriage existence vel non aof relation persons. is not vows which ship. accordingly hold that We the personal highly make the intimate privacy of between sexual is, beings. of human sexual behavior adults is fundamental. instead, sexuality nature of itself the or something intensely Wade, to indi- In Roe 410 v. calls constitutional
vidual that forth Su preme protection. stated: Court tected intimate sexual relations between ed conditions.” [******] areas, adults, included carried our among Court F.Supp. concludes, under seclud- . at 625-26. . con- involved, tions “Where certain ‘fundamental fied only by limiting . .” Court has these ‘compelling rights may held state 93 S.Ct. rights’ be interest’ regula- justi- are Bateman, Like Division One we Brewer, supra, In United v. States compelling for a state in- “looked vain” stated in dictum: court terest 13-651 furthered A.R.S. Secs. Supreme “While there has no Court and 13-652. We have found none and can precise of the con- decision on the issue Elliott, Accord, none. State conceive of validity aimed at stitutional statutes subject supra. therefore hold conduct,’ preventing ‘deviant sexual statutes are void violative the consti- apparent trend of recent decisions would tutional right among indicate that such Elliott, supra, provides an State v. exist. The consenting adults does ground alternative for our decision. Pennsylvania sodomy ‘victimless’ broad defendant was convicted case cer- statute instant involved fabric, penal spring. Fundamental to the mar- under a Mexico New riage relationship private, The court noted consensual that under Griswold activity husband regulate private sexual between and wife could not consensual enjoying legal protection. sanction relations between married sanctity into the It then Governmental intrusion held: the marital bedroom is a violation of fun- govern- protection “Constitutional damental will not be tolerated. sexual relations mental interference with Griswold v. couples also to must extend (1965); L.Ed.2d unmarried, consenting adults. To allow Bateman, Ariz.App. 540 P.2d prac- Legislature regulate protects in- (1975). The tices unmarried between legal activity permits dividual adults, persons, not between constitutionally permissible ac- (including protection of the deny equal would be tivity an unconstitutional statute where former, contrary to laws to the accomplished proscribes conduct) pri- (Emphasis in Fourteenth Amendment.” course, activity illegal vate. Of much original) 539P.2d at 213. accomplished by stealth and a cloak secrecy is secrecy. veil of Once the Mexico in Elliott held New pierced, pri- legally forsaken Accord, facially Peo void. statute vacy forays. arises shield criminal Rice, ple v. Misc.2d 363 N.Y.S.2d Johnson, Misc. People (1975); marriage, the discussing basis for Under 2d N.Y.S.2d 266 Griswold, found in Justice Bateman, Secs. 13-651 court, Douglas speaking for the said: consenting mar cannot enforced police to allow the search “Would we persons. To them enforce precincts sacred marital bedrooms there persons would unmarried contracep- signs telltale of the use protection. equal fore be violative repulsive very tives? The idea *6 surrounding the mar- notions of Division One held Bateman relationship. riage 13-651 salvage it could not A.R.S. Secs. older deal with a re by engrafting on them Rights than Bill than our —older quirement prove con that the lack of political parties, school older our so, held, ju “rank it would be sent. To do system. Marriage together coming is a court, upon trial legislation dicial that the worse, hopefully endur- for better or for in, nor, reflection, con indulge would not being degree of ing, and intimate to the at can 540 P.2d scientiously, this court.” sacred. is an association that agree the statutes cannot 737. We causes; life, a har- way motes not proof lack con require construed to faiths; mony a bi- living, political not there Appellant’s must sent. convictions not or social loyalty, lateral commercial fore be reversed. as it is association for projects. Yet an Reversed. any involved our purpose as noble a 485-86, at 85 prior decisions.” 381 U.S. J., HOWARD, C. concurs. at S.Ct. concurring opinion specially In his HATHAWAY, Judge (dissenting). by Griswold, joined Goldberg, Justice Brennen, recognized and Marriage universally as the Chief Warren is Justice Justice holding in no court’s starting point obliga- recognized the legal and proper regulation impinged upon a state’s tions. is the sacred foundation misconduct, then promiscuity families, or of sexual comprising which the nation’s
273
“implicit
concept
of ordered
Harlan’s
quoted approvingly from Justice
553,
liberty.”
v.
302
Ullman,
Palko
U.S.
367
in Poe
dissent
v.
U.S.
319,
288,
325,
149, 152, 82
1782,
58
L.Ed.2d at 1025:
S.Ct.
L.Ed.
81
6
S.Ct.
“
Wade,
113,
(1937).’
410
Roe
U.S.
homosexuality
‘Adultery,
and
like
152,
705, 726,
S.Ct.
the State
intimacies which
encompasses
This
intimacy
. but the
forbids
personal
protects
intimacies of
and
necessarily an
is
es-
and wife
husband
home,
family, marriage,
mother-
accepted
the insti-
feature of
sential and
hood, procreation,
rearing.”
and child
marriage,
institution which
tution
65,
413U.S. at
at 2639.
S.Ct.
allow,
which
must
State
every
it
Holmes’
always
age
has fostered
court endorsed Mr.
and
Justice
statement that
thing
It is one
when
:
protected.
and
power
to forbid
exerts its
either
recognize
proper
is
‘[T]he
. or to
sexuality
extra-marital
Legislature
that a state
can do whatever
marry,
it
an-
say
may
quite
who
it
by
sees fit
do unless it is restrained
when,
mar-
acknowledged a
having
other
express prohibition
some
in the Constitu
it,
it
and
intimacies inherent
riage
tion
States or
United
regulate by means of the
undertakes
and that
be careful not to
Courts should
intima-
the details of that
criminal law
prohibitions beyond
extend
their ob
”'
499,
cy.’
U.S.
S.Ct.
meaning by reading
them
vious
con
recognized
particu
marriage
ceptions
public policy
that the
Thus we see
may happen
in our
hon-
Ty
fundamental institution
lar Court
to entertain.’
protected
Banton,
by
ored
If the intima-
law.
son & Brother
426, 433,
intercourse, regardless
cies of sexual