*1 JERSEY, AND NEW PLAINTIFF-RESPONDENT STATE OF CROSS-APPELLANT, LAIR, A. DEFENDANT- THOMAS APPELLANT AND CROSS-RESPONDENT. Argued March October 1972 Decided 1973.
389- *2 Jacobs, Mr. David P. Defender, Deputy Assistant Public for argued the cause defendant-appellant cross-respon- Ness, dent C. Stanley Van Public (Mr. Defender, attorney; Jacobs, Mr. counsel, and on the brief). Simon,
Mr. Sheldon M. Special Prosecutor, Assistant ar- *3 gued the cause for plaintiff-respondent cross-appellant and Jr., M. (Mr. Egan, Charles Prosecutor, Morris County at- Simon, counsel, Mr. of on torney; brief). and the Gicco, Mr. John De Deputy Attorney General, the argued Jr., cause as Amicus Curiae F. George Kugler, (Mr. At- Gicco, of New torney Jersey, attorney; General Mr. De of and counsel on the brief. of the Court was opinion delivered by J. Defendant was indicted for
Mountain, al- having legedly committed the crime of N. J. A. rape, 2A:138-1, S. as well as the crime of N. J. A. sodomy, 2A:143-1. He a was tried to jury convicted of and both Upon offenses. the appeal Division affirmed Appellate the sodomy convic- tion but reversed the conviction for rape, that is- remanding sue new for a trial. We both granted petition defendant’s and the State’s for cross-petition certification. 59 N. J. 288
The facts may be summarized. briefly Defendant admitted a he visit to the of paid apartment victim the during July 18, the of 1969. evening They ac- only were casual in fact he made welcome and was apparently but quaintanees which jury There from the testimony a meal. was served some following in evening, have found that later the might made to his conversation, defendant advances hos- desultory rebuffed. He nevertheless persisted which were at once tess her that manner so terrified threats, conduct his and by and of re- all effectively power her life and lost feared for she a thereafter over period He her disrobe and made sistance. in sexual natural hours, her to compelled engage of several oc- anal each three sodomy, in acts of intercourse hours of left, early in the morning After he had casions. of a home friend way victim made her the 19, the July until in the remained later fore- nearby, where she who lived the victim treated notified and when were police noon the a hospital. local sodomy affirmed conviction for Division the The Appellate for the reason that conviction rape but reversed or at other not, any either in charge did his judge trial trial, instruct that evidence jury point during had been in- convictions, criminal which prior defendant’s troduced, must be considered the issue only jury upon and for no other credibility purpose. be in prior may
Evidence criminal convictions credibility troduced for the purpose impeaching testifies, who criminal including defendant anyone N. J. S. A. 2A:81-12. trial who offers himself as witness. not, however, or taken into Such evidence be considered *4 the of the offense determining guilt account defendant’s Sinclair, 56, J. is v. 57 N. being for which he tried. State 259, v. 54 J. 269-270 Manley, 62-64 State N. (1970); Hawthorne, v. 49 N. J. A limit State 130 (1969); this by instruction to should be the trial given effect ing Evidence Rule 6. Here not done. Defend court. this was that, however, the in counsel, ant’s did not court request any objection an instruction its nor was- charge clude such to omission. came before point or taken its exception 392 (cid:127) —(cid:127) — Division as it now before as Appellate
the comes us error. plain
Thus the issue is failure to or charge whether this instruct “clearly otherwise the was jury capable producing result,” 2:10-2, an B. the unjust under known as commonly rule, “plain fairly error” whether be or it considered error, harmless the defend capacity prejudice the lacking ant. After a very careful have study entire record we reached the conclusion that did not a re the error require versal. We base decision over very largely nature of whelming testimony to defendant’s pointing and the relative the testimonial ref guilt insignificance erences to his His prior convictions. own narrative of events, uncorroborated in any way essentially implau sible, included the admission he had had normal sexual victim, relations with the he been insisted this had although with her consent. faced an with Upon being inculpatory arrest, statement made him after by shortly his he in effect admitted the acts of That the trial sodomy. concurred judge in the result is reached from his re jury apparent marks in motion for new trial. As have denying we said, no conclusion than other seems tenable on this guilt rceord, aside all leaving reference to defendant’s con past victions.
aWhere
failure to inform the jury that
evidence
prior
must
convictions
be limited
solely
of credibility
issue
urged
error,
as plain
courts have not hesitated to sustain
convictions where no real prejudice can be shown. United
Carter,
v.
States
401 F. 2d
748,
(3rd Cir.
cert.
1968),
393 U.
1103,
den.
S.
informed as to what the State 618, 619, Jersey, L. 59 S. Ct. New 306 U. State of (1939)] Ed. said, Or, as this Court has recognized penal must statute it must be At the outset proscribes
specify such with the elements the offense which it certainty apprise degree it those to whom as reasonable proscribed, com- that men of standard of conduct so addressed meaning guess intelligence necessarily or differ at its need not mon 179; (1961)] application. Joas, N. [State J. as to its *6 statutory It must also be that apparent vague language to be conducive an more may interpretation responsive to than the moral tribunal predilections adjudicating of the State, P. to Harris v. 457 2d 638 legislative (Alaska intent. 1969). does it
Our
nor
“sodomy”
does not define
statute
does,
It
what meant
nature.”
specify
“crime against
Morrison, 25 N. J.
however,
Super.
v.
two. State
equate
or
534, 536
identical
1953).
employing
Ct.
Statutes
(Cty.
of our
similar
are to be found in about one-half
language
Question
Con
Note,
of
“Sodomy
states.
Statutes:
A failure
50 Neb. L. Rev.
568
stitutionality,”
kind of
to set forth more
nature of this
precisely
pro
de
scribed conduct has
been attributed to
always
legislative
State
description.
sire to avoid the
of
indelicacy
explicit
Morrison,
v.
536. While the courts of at least two
supra, at
states have held or indicated
the words “crime against
that
and hence
nature,”
alone, are
vague
standing
impermissibly
State,
P.
Harris v.
457
2d
supra,
violative of due process,
State,
257
2d
Franklin v.
So.
1969);
(Alaska
have ruled to the
jurisdictions
1971),
majority
(Fla.
words, “crime against
the view that the
contrary, accepting
law which
nature,”
at common
had
definite meaning
No state
to
today.
appears
attributed
them
be
to
properly
ours,
which,
a statute
like
unduly vague
have stricken as
identical
upholding
the word
Cases
“sodomy.”
includes also
on the ground
vague
statutes
attack
against
or similar
State,
P.
Nev.
2d
v.
Hogan
include
ness
573, 197 N. W.
39 Mich. App.
v.
People
Vasquez,
(1968);
W. 2d 314
478 S.
Crawford,
(Mo.
2d 840
State
(1972);
M.
Defendant’s
that his conduct does not come
argument
within the embrace of the statute rests
the asserted
upon
that the acts
are
those
prohibited
only
performed
proposition
Here,
heterosexually.
and not those
homosexually
performed
course,
a per
defendant is
with
assaulted
charged
having
son of
manner. He claims
sex in the forbidden
opposite
this kind
enactment.
of conduct to be
the reach of the
beyond
an historical re
Defendant’s contention
rests largely
view
kind of
and
judicial
treatment
legislative
crime has
in this
Suf
country.
received in
England
fice it
find
say
persuasive,
that we do not
this argument
nor are we aware
or
any
policy
private
aspect
public
inter
favor such a limited
morality that should lead us to
we note
pretation of the
Furthermore
statutory language.
adversely
posi-'
issue has been resolved
precise
*7
has been presented.
tion taken
defendant wherever else it
by
Daniels v.
L. Ed. 2d 510 Court declared (1965), statutes the State of Connecticut which imposed penalties birth control and persons those who upon practicing upon had aided them in so The informa- doing. appellants given tion, instruction and medical advice to married as persons of preventing concep- available means appropriate they tion. statutes were held unconstitutional that to affect and control the sought marriage relationship, be private nature of which the Court declared to constitu- from Griswold tionally by intrusion the State. protected thus' to marital recognized privacy, constitutional right which in case was violated when the state right sought that who birth criminal sanctions those impose practiced control Defendant recognizes or who its use. propagated in his and, argument, of marital as one right privacy step what be deemed may claims that it extends also to protect consensually private deviate sexual acts when practiced our stat- and now hold that a married We by couple.1 agree the conduct does include within its prohibition ute not married couples. thesis,
Thus we reach the final thrust of defendant’s that if such consensual conduct is when protected practiced married by the doctrine couples, protection equal the laws it be licensed when requires equally practiced unmarried hence our consenting persons; sodomy statute violates the Constitution unless it latter recognizes this right by that consent be a providing defense.
We decline to this The accept argument. of Jus- opinion tice in Griswold Douglas state, the married eulogizes stresses the intimacies of married life and privacy concludes that a is so to fulfillment of important the marriage relationship as to a justify as of recognition right constitutional dimen- import private, consensual, 1“Tlie decision is that Griswold protected regulation by through marital are relations from the state penalty.” Henry, 873, the of a use criminal Cotner v. F. 394 2d 875 1968), (7th 847, 132, cert. Cir. den. 393 U. S. Ct. 21 L. S. Ed. 2d 118 a non a It rather obvious that as matter sequitur sion. is right some similar or to protection equal privacy equal order the sexual con- must be found to exist in to protect law, duct of the unmarried. Much of our criminal and other- wise, bespeaks contrary. the Baird, 438, Eisenstadt v.
Defendant that U. S. urges 92 Ct. 31 L. Ed. different (1972) requires 2d There the Court considered Massachusetts statute result. sell, any lend or anyone away it crime for to making give of birth control device under condi except, prescribed kind were tions, to married Unmarried to be en persons. persons from access to The Court tirely contraceptives. excluded struck down the statute as violative being equal protec that whatever of an ac tion, the individual to saying rights and be, to the the married contraceptives may rights cess must be alike. Court could discern ra unmarried no justify contracep tional basis to availability making marital status. It will be seen that upon tives depend in marital way touches no to upon right privacy case State, with which Griswold is concerned. In Hughes 497, 287 A. cert. App. (1972), Md. 2d den. 409 U. S. 93 S. Ct. 34 L. Ed. was 2d defendant (1972) the same pressed argument sodomy convicted of of Griswold. The based his here, reading advanced contention, that, out rejected pointing court Maryland holding eulogy Griswold from its [t]he rationale of the flows lacking such the rule has no founda- marital status and status see no invidious discrimination be- In such circumstances we tion. deny so and unmarried individuals as to married individuals tween any 2d, supra, equal protection [287 A. 305] event. of the laws at 305 F. Hogan, Raphael Supp. (D. also C. See N. Y. 1969). D.S. worth that several of mentioning
We think it the prob- arguments presented upon appeal raised lems We call readily respond appropriate legislation. would provisions appearing attention the proposed especial *9 New Penal Jersey Code submitted as of Final Re- part the the New port Jersey Criminal Law Revision Commission (1971). Section 2C:14-2 is entitled “Sodomy and Related Offenses.” This proposal “excludes from the criminal law all sexual practices force, not involving adult corruption of minors, or offense . . . on public based the grounds that no harm to the secular interests is involved community in a sex typical practice between private adult consenting This area of partners. is private morals the distinctive con- cern of 2 N. spiritual authorities.” J. Penal Code: Commen- tary, 196. The wisdom of this or of other any like proposal matter, is, of course, for purely legislative determination. We have examined the other made defendant arguments and find them to be without merit. entirely of the judgment Appellate Division setting aside conviction of rape is reversed and the judgment of convic- tion In reinstated. all other respects judgment Division is Appellate affirmed. C. J. I concur (concurring). in the result
Weintraub, I although have reservations as to the constitutionality application the sodomy statute to a consensual act between adults committed in private. As to a homosexual act I committed, thus doubt the existence of a in- public terest sufficient to an justify edict that the homosexual shall behave as heterosexual or not at all. The failure to recog- within nize status which homosexuals may lawfully follow the dictates of their nature makes the application of punitive measures still more questionable. And I doubt deal- with ing extramarital sexual criminally relations between heterosexuals the Legislature deal with a differently deviant act or inmay any event authorize the same punish- for a ment deviant act whether consented to or not. That punitive approach futile seems evident. Consenting adults are if prosecuted rarely at all. this is not case in which to grapple with the
.But con- stitutional issue. The factual versions the State and of *10 were such that there was no room finding the defense for anal consented to even though that the was penetration was was not. The there vaginal penetration finding an that there was attack necessarily finding involved rape all inflicted injuries victim and that were her will. against Justice For reversal in and part part affirmance —Chief and Mountain, Justices Jacobs,
Weintbaub, Hall Judge Sullivan — 5.
Opposed—Hone. ZAHORIAN, COMPLAINANT, FITT SANDRA v. RUSSELL AGENCY, REAL ESTATE RUSSELL A. FITT AND FANNING, MARION J. RESPONDENTS-CROSS-APPEL LANTS, RIGHTS, AND NEW JERSEY DIVISION ON CIVIL APPELLANT-CROSS-RESPONDENT. Argued Reargued November March 1973— Decided March 1973.