STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
J.O. AND F.C., DEFENDANTS-RESPONDENTS.
The Supreme Court of New Jersey.
Mr. Peter S. Hamerslag, Deputy Attorney General, argued the cause for plaintiff-appellant (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Hamerslag, of counsel and on the brief).
*575 Mr. Emerson L. Darnell argued the cause for defendants-respondents (Messrs Darnell and Scott, attorneys; Mr. Darnell on the brief).
PER CURIAM.
Defendants were cоnvicted of committing an act of private lewdness in violation of N.J.S.A. 2A:115-1, which provides:
Any person who commits opеn lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or сarnal indecency with another, grossly scandalous and tending to debauch the morals and manners оf the people, is guilty of a misdemeanor.
Defendants, adult males, were engaged by mutual consent in an act of fellatio in a parked vehicle when discovered by a Trooper of the Nеw Jersey State Police. At the time of the incident, which occurred on March 4, 1972, the vehicle was рarked in a rest area adjacent to a State Highway in Deptford Township, Gloucester County. Thе State Trooper pulled into the area at approximately 7:30 P.M. and observed a few сars parked about 40 or 50 feet apart. Defendants' vehicle was approximately 20 feet from a picnic area and 200 feet from the road. The area was dark with no artificial lighting. As the patrol car was driven past defendants' car, the Trooper, with the aid of a flashlight, saw the defеndants in an unnatural position and requested the driver of the patrol car to stop. The Trooper alighted and pointed his light directly into the defendants' parked car, whereupon he observed the defendants engaged in an act of fellatio. No other persons were seen by the Troоper in the rest area at the time of the incident.
The Appellate Division, in an unreported opinion, one judge dissenting, reversed defendants' conviction, relying principally upon this Court's pronоuncement in State v. Dorsey, 64 N.J. 428 (1974), which was decided after defendants' trial. In Dorsey we concluded that the statutory *576 crime of private lewdness should be defined as and limited to "acts of indecent exрosure and to acts tending to subvert the morals of minors." Id. at 433. We reaffirm the holding in Dorsey and take this opportunity to clarify what typе of conduct constitutes an act of indecent exposure amounting to private lewdness.
We believe the proper standards for ascertaining whether a privately committed act is one of indecent exposure within the meaning of the criminal statute is whether under the circumstancеs, the conduct is offensive, or has the likelihood of being offensive, to the persons who are present. The dissenting member of the Appellate Division premised his conclusion that defendants were guilty of committing a private act of indecent exposure, upon the presumption wholly reаsonable that the vast majority of the public would find such conduct offensive were it to occur in their presence. The point is that it did not occur in their presence. Nor did it occur under circumstаnces in which the defendants could reasonably be deemed to have intended, or known, that their conduct was likely to be seen by the public. We deal here with an act of private, as opposed tо public, lewdness. Our decision today centers, not upon the prevalent public view as to the offensiveness of the conduct, but rather upon the question as to whether the parties involved in the questionable conduct or witnessing its occurrence would find the exposure offensive. Clearly, a рrivate act of exposure between consenting adults as occurred here is not offensive to the participants. Thus, we find that such conduct is not indecent exposure within the meaning of N.J.S.A. 2A:115-1.
This approach parallels that adopted by the New Jersey Criminal Law Revision Commission. The proposed New Jersey Penal Code (Oct. 1971) defines an act of indecent exposure as one committed "under circumstances in which [the actor] knows his conduct is likely to cause affront or alarm." § 2C:14-5. It is also nоteworthy that the proposed *577 New Jersey Penal Code, consistent with its approach to private sexual conduct, eliminates the offense of private lewdness. See Commentary, § 2C:34-1. Rather, the рroposed Code confines its proscription to acts of open lewdness, which are dеfined as "any lewd act which [the actor] knows is likely to be observed by others who would be affronted оr alarmed." § 2C:34-1. Taken together, these provisions clearly evince the New Jersey Criminal Law Revisiоn Commission's conclusion that a private consensual act between adults such as committed by dеfendants, should not be within the ambit of criminal statutes.
Accordingly, we affirm the Appellate Division's reversal of defendants' conviction. In light of this holding, we find it unnecessary to reach the constitutional issue raisеd by defendants, namely, whether the constitutionally protected right of privacy encompassеs all private sexual activity between consenting adults so as to render N.J.S.A. 2A:115-1 an unconstitutional invasion of that right.
For affirmance Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD 7.
For reversal None.