State v. Pilcher

its tо company of time deprive the to lowed merely a defense be- prepare Iowa, Appellee,

answer STATE of prepared to meet the have it cause people claims other other issues on same Eugene PILCHER, Appellant. Robert majority’s allow- the I believe the suit. No. 57756. of rule misapplication is a misuse and ance of Court Iowa. so, to do it is did not seek Since 19, 1976. May whether unnecessary speculate to probably trial, could, of have day second on the he But see Mil- rule 33. under

cross-petitioned Company, Lost Cooperative

ler v. Farmers 1970); (Iowa

Nation, 176 N.W.2d

Am.Jur.2d, Pleading, pp. 610-611. to the allowance of freely subscribe

I existing it pleadings where to

amendments But justice. even interests of the

is in authority to

authority amend meant an- demand immediate

cross-petition and it discretion allow abuse

swer would of rule 88 are provisions The liberal

here. injustice by en- avoidance of

aimed oversight. They are or harmless

trapment weap- as an offensive intended for use up am- here sets an The amendment

on.

bush. the new majority points out suit substantially the same issues

presented already prepared meet

company party for con- of another

defend claim indemnity. the extent of But

tribution nature, its whether preparation, taking depositions, of even

might include counsel, were all based on trial

selection it went to trial. the suit as posture calculate party

A should existing on basis the suit

its risks of trial. Here the trial commencement the courtroom most

process cleared To then allow this litigants and claims. similar, suit

new, though admittedly to be against remaining

lodged unsuspecting goes play what consider fair

party beyond I bounds discretion. proper I would reverse. also, Iowa, See 242 N.W.2d 367. privacy; section

Code, implements cruel punish- and unusual ment. leading events to defendant’s convic- April

tion occurred According testimony Charlyn of barmaid Roma Waterhouse, defеndant forced her to com- mit fellatio him at a farm outside the city of Ottumwa. The events April commenced the Tom Tap Tom in Ottum- wa, where Mrs. Waterhouse met with de- in the early fendant afternoon. The two hour, conversed in the tavern for about one they at which time left together, ostensibly to look at defendant’s new car. They apparently drove her car to a lot, parking whereupon they got into de- fendant’s car and drove to a farm located in Wapello County owned defendant’s cous- in, supposed Max Marlin. The new car was to be located at this farm.

Upon farm, their arrival at the Marlin get defendant went to the house to some Walter, Ottumwa, Barnes, for Schlegel & keys, unlocked the padlocked sug- door and appellant. gested to Mrs. Waterhouse she come in the Turner, Gen., Atty. couple Thomas house. The proceeded Richard C. into the kitch- Mann, Jr., Gen., Atty. Asst. 0. Er- en where a five Samuel minute conversation en- hardt, County Atty., appellee. they door, sued. As started for the which

apparently bedroom, was in the front an- commenced, other conversation whereupon glanced Roma at her watch and remem- MASON, Justice. bered she games.” had no time for “fun At Pilcher, Defendant, Eugene ap- Robert point this it was some time after 2:00 p. m. judgment imposed following his peals from Defendant then backed Roma into the jury sodomy conviction of the crime of bedroom. When she tried to walk around in violation of section The Code. Al- grabbed arm, it, him he her twisted then though presented several issues are for re- handcuffed her arms behind her and forced view, primarily challenges her down to a mattress on the floor. De- constitutionality of this statute. then fendant removed her slacks and under- Wapello County grand jury A had indict- wear, sweater, pushed up her and started to Eugene ed Robert Pilcher for the crime disrobe himself. Roma stated on cross-ex- sodomy. Before of trial de- commencement amination she believed defendant wished to his application fendant filed to withdraw have what she described as “normal” sexual to file a guilty plea permission and for intercourse, to which she would have demurrer, was over- demurrer. The connection, agreed. In this it was also ad- ruled, alleged statute is uncon- duced defendant spent and Roma had an respects: (1) stitutional in these it is an previous hour on a occasion wherein they (2) improper police power; exercise of thе it participated in “normal” sex at the farm. process equal protec- violates the due and clauses; (3) event, unconstitutionally tion In it not long was until Roma overbroad; vague something invades the realized defendant wanted other objecting to purchased sex. She was than “normal” handcuffs from Shenafelt that very as she was “not this forced fellatio afternoon. regard, the State had insertion, After the first of that.” fond earlier called Shenafelt a witness. His a piece informed defendant she had Roma testimony differed significantly from de- in her mouth. Because her hands candy fendant’s. it may earlier, While have been back, appar- her were handcuffed behind thought it Shenafelt was around 3:00 when ently, candy. defendant removed the This defendant came into the office stayed in- procedure repeated upon Roma’s only period. a short handcuffs, As to the forming defendant she also had false teeth. thought Shenafelt defendant purchased the climax, After defendant attained his he re- April handcuffs 3—it seemed like it was in up moved the handcuffs and Roma cleaned Upon middle of the week. cross-exami- got dressed. nation, Shenafelt could state for only sure purchase place toоk some time Defendant then stated he would inbe during the week. trouble with four other men as he was supposed to leave her at the farm for them. Finally, the defense called Mr. Max Mar- then They to Ottumwa returned lin, farm, owner of the to the stand. Mar- parking lot where her car ‍‌‌​‌‌‌‌​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌‌‌‌‌​​‌​‌​​‌‌‌​​‌‍was located lin testified he was at the farm from 12:00 p. about 3:00 m. A 15 minute conversation through m., p. April 4:00 5 and saw no one. followed. This testimony was contradicted state Sheston, rebuttal witness Wayne an agent

It was adduced during examination of of the Bureau of Criminal Investigation, struggled, Roma she neither kicked or tried who stated Marlin told him spent to bite he had during defendant the events down day the entire Furthermore, April 5 in on farm. she Ottumwa. related talking facts to no one until with Mr. Wen- jury The returned a guilty. verdict of evening April dell Plim the 5. She wait- Sentencing was set for October “early morning ed until the hours” of the presentence and a investigation was or- day next to tell her husband what had dered. Included in the information before happened. He did not believe her as she Judge Pettit was a letter from Doctor Paul divulged event, no names. In any Roma Loeffelholz, L. Clinical Director of the Iowa during did state trial she never consented to Security Facility Medical at Oakdale. De- aсt of fellatio. fendant had been sent to pursuant Oakdale testimony Defendant’s most contradicted a chapter 225A order for determination foregoing story. the day April On whether defendant was a psycho- sexual 5, defendant drove his wife Diane to work path. This letter stated defendant “does purchasing ciga- at about noon. After not have psychiatric condition which re- rettes, proceeded he to the Hotel Ottumwa quires any hospitalization in a psychiatric collecting unpaid pest to discuss bills for setting.” letter, Also contained in the how- control. He then went to the Tom Tom ever, is the following statement: Cola, Tap Pepsi remaining for a ap- there patient “The claims that he cannot under- proximately ten minutes. While defendant why stand the charges were finally placed, Roma, say did hello to there was no conver- but since that time other women in the going to the sation about farmhouse to see community have alleged that Mr. Pilcher a new car. perpetrated indiscreet sexual behavior in proceeded Jaycee Defendant then relation to them. patient denies such (of project circus office which he was chair- activity. This man also understands that сhairperson) man or where he remained he is suspect considered as a in an unsolved p. through from 1:00 m. 4:00 m. p. He then murder which happened Wapello in County. wife, picked up his had dinner and returned Mr. Pilcher says nothing that he had to do her to work at around 5:00. time, with that event at the but same he says Mr. Robert was also at he Shenafelt can understand why he is con- April circus office 5. possible Defendant claimed he sidered as a suspect.” objections record of further report itself mentions to the instruc- presentence any and Dr. Loeffel- tions at time. sexual behavior the above does not suffer conclusion defendant holz’ After of judgment rendition and sen- requiring hos- condition psychiatric from a tence, appealed to this court. Judge Pettit considered this pitalization. I. Defendant contends the trial court probation a bench denying in information overruling erred in his demurrer and mo- proceeding the section 225A.8 though even tion to dismiss directed at the constitution- due to the doctor’s con- dismissed had been ality of sections 705.1 and 705.2. These clusion. provide pertinent part: statutes evidence de- the close of the State’s At “705.1 Definition. Whoever shall have to dismiss based filed a motion fendant had copulation any carnal opening of the urged in the demurrer. upon the reasons body except sexual parts, with another hu- This overruled the motion. The trial court * * *, man being, shall be guilty deemed by a motion for a directed was followed sodomy. (1) verdict, proof alleging failure Any person “705.2 Punishment. who constituting sodomy, the crime of elements sodomy, shall commit shall imprisoned any type had of carnal (2) that defendant penitentiary not more years.” that ten witness, (3) complaining with the copulation Defendant’s attack any occurred in copulation constitutionality carnal predicated following grounds: than sexual on the body other opening of it is an parts sexual includ- invalid exercise of the police definition of State’s parts—the power real, mouth, (4) in that it serves “no and the offense substantial ing the and County. relationship public Defendant rational to the Wapello safe- occurred in ty, morals, welfare”; general (2) or chapter evidence showed Roma urged the further willing participant process equal protec- a and violates due and was Waterhouse tion; Thus, (4) vagueness; it is void for accomplice. there was a therefore an imposes punishment; cruel and unusuаl corroborating in that no and proof failure (5) it constitutionally protected invades act are- actually adduced the did evidence was as. perpetra- was the that defendant occur or was asserted if the case Finally, it

tor. upon Defendant’s attack the constitution- jury, it would allow go to the were to ality of these statutes is based on the as- jury part of the constitu- speculation on sumption the facts occurred as described by rights to a fair ting a of defendant’s denial Roma although Waterhouse as a witness law. Both motions process of trial and due defendant denied involvement in the case. were overruled. light Viewed in this charged Pilcher is with committed, having privacy, carnal copu- evidence, the close of all At per lation person os with an adult motions for dismissal and for a renewed his sex, opposite spouse. his not well as the verdict as above directed a grounds therefor. To the motion for di- points Pilcher first out section 705.1 ground rected verdict was added sodomy illegal, makes all whether between to establish each element had failed State unmarried, persons or married between con- beyond of the crime a reasonable doubt. senting honсonsenting or adults or between were overruled. These motions too opposite the same or sexes. It draws no private distinction between and acts. Finally, argument jury, de- before Likewise, age parties is not rele- excepted fendant to instructions 6 and 7. However, vant. he specifically states he is sodomy, Instruction 6 defined and the ob- asking not court consider homosexual jection grounds raised the demurrer’s activity copulation or carnal per anum. parts” well as the fact “sexual was not two, outset, paragraph defined. Instruction At the this court employs several objected to based the fact the mouth principles well settled in dealing ques- with part. is a sexual There is no indication of tions of a statute’s constitutionality: regularly enacted stat- the innocent “It is well settled not providing fair warning. Second, strong presumption are accorded and arbitrary utes discriminatory en- * * * constitutionality. [citing authori- prevented, forcement is to be laws must provide explicit standards for those who ties]. apply vague them. A law impermissibly too, constitutionality where the “Then delegates basic policy policemen, matters to doubtful, will merely this court statute is * * * judges, juries for resolution on an ad [citing interfere. authorities]. subjective basis, hoc and with the attendant will not be legislative “And enactments dangers arbitrary and discriminatory ap- they unless are shown held unconstitutional plication. Third, but related, where a and without in- clearly, palpably doubt vague statute upon sensitive ‘abut[s] areas * * * rights. fringe upon constitutional of basic First freedoms,’ Amendment it ‘op- authorities], [citing erates to inhibit the exercise of free- [those] “Finally, party attacking any statutory doms.’ Uncertain meanings inevitably lead ‘ negate every must reasonable enactment citizens to “steer far wider of the unlawful * * * * support for such statute. basis zone” than if the boundaries of ” Kueny, [citing State authorities].” the forbidden were clearly areas marked.’ (Iowa 1974). also 216-217 N.W.2d See Grayned Rockford, v. City Aldrich, (Iowa State N.W.2d 108-109, 1975). 227-228; L.Ed.2d Kueny, State v. su- Likewise, pra, 215 pertaining rules N.W.2d vague- well ness and overbreadth are established: Williams, 171 N.W.2d “ * * * den., (Iowa 1969), A void cert. statute is under Clause if it ‘either has this state Due Process forbids ment: requires doing of an act in so terms

vague intelligence that men of common “However, a vague statute is not so necessarily guess its meaning must uncertain as to void where the meaning application differ as to its Co of words used be fairly can ascertаined by Co., nally v. Construction 269 General U.S. statutes, reference to judicial similar other 385, 391, 126, 127, 322, 328 L.Ed. S.Ct. determinations, reference to the common (1926). penal give person A statute must law, dictionary, or if the words them- intelligence of ordinary warning fair selves have a generally common and accept- * * * and, prohibited, is order to what avoid ed meaning. [citing authority].” enforcement, arbitrary discriminatory and Kueny, See also State v. 215 N.W.2d at 217 provide explicit must an for it standard Aldrich, v. and State N.W.2d it. apply Grayned City those who Overbreadth, while closely related to 104, 108-109, Rockford, 408 U.S. vagueness, is nevertheless a separate consti 33 L.Ed.2d concept. tutional “A statute is overbroad if Robinson, 190, 193 183 N.W.2d State attempts it a governmental achieve pur Willis, (Iowa 1971).” State v. 218 N.W.2d pose prevent to control or activities consti 1974). (Iowa tutionally subject state regulation by principle process “It due that is a basic which sweep unnecessarily means broadly vagueness is void if its an enactment thereby protected and invade the area of Vague clearly are not defined. prohibitions * * * [citing freedoms. authorities].” important offend several values. laws Willis, supra, State 218 N.W.2d at 923. First, we assume that man is free because Along Wedelstedt, this same line State v. to steer between lawful and unlawful con- (Iowa 1973), 213 N.W.2d has this duct, that give person we insist laws statement: intelligence ordinary opportu- a reasonable he nity prohibited, “Vagueness to know what is so that and overbreadth are two sep- accordingly. trap may Vague may although act laws arate matters closely related. In 241, 249-250, support Koota, this contention the Zwickler v. 396, 19 relies on L.Ed.2d the court this statement of principle: S.Ct. “ * * * one from the other: distinguishes to whom application of [0]ne “ ‘ * a statute is constitutional will not be heard Appellant’s challenge is not to attack the ground statute on the that “vagueness,” is void for that the statute impliedly might it also be taken applying is, is a statute “which either that that persons to other or to other situations in doing of an act in requires forbids or which its application might be unconstitu- men of common intelli vague that terms so * * * tional. [citing authorities].” necessarily guess at its meaning gence must * * * Raines, United application as to its and differ S.Ct. 4 L.Ed.2d 524. See also Co., Construction Connally v. General Willis, State v. 218 N.W.2d at 923. 391, 46 322, 328. 70 L.Ed. U.S. his constitutional attack is that Rather Section 705.1 does require statute, lacking neither although clarity nor act be Expressed forced. differently, con “overbreadth,” is, senting is vоid for that precision, sodomitical acts are presumably prohibited principle the constitutional the same as it offends are nonconsenting ones. purpose to control or governmental that “a constitutionally subject to prevent activities The court in jury: instruction 8 told the may by not be achieved regulation state “If persons two voluntarily willingly and sweep unnecessarily broadly means which participate sodomy, in an act of each is protected invade the area of thereby regarded in accomplice, law as an as well as

freedoms. principal. your “It is duty to determine from the However, point we out when the evidence Charlyn whether Roma Water- becomes involved in a con first amendment house, with whom alleged troversy, concepts vagueness have committed the sodomy, crime of was a intertwined. A overbreadth become read voluntary willing participant therein. in Broadrick v. ing of the discussion Oklaho ma, 601, 93 S.Ct. you find, “If you so are instructed that conceptual blending. illustrates defendant cannot be convicted of the crime logical. “merger” charged of theories is As alone, Such her testimony unless it pointed quotation Grayned, out in the from corroborated other tending evidence show not only that the crime of committed, (vague) meanings uncertain in a but that was committed lead citizens to steer defendant. far wider of the unlawful zone than if the forbidden you “But find that Roma Charlyn clearly Expressed areas were marked. dif Waterhouse was not a voluntary and will- ferently, vague may a law which is “chill” ing participant in the act sodomy, any rights. of constitutional the valid exercise find, you then she would not be an accom- sense, vagueness In this of the statute plice and her testimony need not be corrob- overbreadth; gives concepts, rise to its orated as set forth in this instruction.” situation, merge. in this would jury “guilty found defendant of the II. The insists defendant does not crime sodomy.” special There were no standing challenge have the constitution- interrogatories concerning the issue of con- ality theory of section 705.1 on the this Hence, sent. impossible it is to ascertain privacy of mar- violates the whether the jury convicted defendant of persons consenting ried adults to en- sodomy forced or sodomy consent, with gage involving conduct oral sodomitical though even the evidence there was consent copulation since defendant was neither was not strong. governmental If prohibi- married to Roma nor he Waterhouse did tion of both is constitutional there is obvi- ously problem. However, her consent. no if private con- brought “We are thus part- question between adult sodomy acts of sensual clauses, any to each whether one of the three not married as opposite sex of the ners court, construed the state prohi- upon is its governmental from protected other repugnant face to the Federal inserted into Constitution could be bition, this court then so that it could not constitute a lawful for which de- type of guessing prosecution. foundation for a criminal was convicted. fendant 367-368, at U.S. S.Ct. con- sort has been this Prediction 75 L.Ed. at 73 A.L.R. 1489. Court since at least demned Stromberg Court then determined California, Stromberg down handed the first clause was invalid on its face. 75 L.Ed. 51 S.Ct. U.S. may conviction have rested Since exclusive- rendered it a a statute where A.L.R. ly upon the constitutionally repugnant flag any a red display offense clause, the verdict was set aside. (1) sign, symbol as a purposes: of three one organized opposition or emblem York, New In Street v. 394 U.S. anar- (2) an invitation to government; flag S.Ct. a desecra- action; propagan- as an aid to chistic сase, may tion have been convict- ap- The state character. a seditious da of solely ed upon constitutionally protected the constitutionali- questioned court pellate words. The Court noted: but sustained purpose of the first ty Stromberg principle “The established in ei- have rested on it could conviction since In Williams been consistently followed. purposes. The Su- the other two ther of Carolina, v. North 63 S.Ct. stated: preme Court (1942), 87 L.Ed. 279 this again Court dispo- agree with this are unable to “We compelled held itself to reverse a conviction against case. The verdict sition upon general based jury verdict when the not general one. It did was a appellant prove record failed to that the conviction it rested. upon which ground specify theory was not founded which could set forth in purposes three were As there not constitutionally support a verdict. The instructed statute, jury was Court stated: given with re- might be their verdict that “ say general ‘To that a guilty verdict of them, independently any one of spect upheld though should be we cannot know say under considered, impossible to that did rest on the invalid constitu- the conviction the statute which clause of ground tional would be to coun- clauses, of these If one was obtained. procedure tenance a which would cause a separa- has held to be the state court impairment rights.’ serious of constitutional invalid, be determined ble, it cannot Id., appellant was not record that upon this in Cramer v. again applied “The rule was It that clause. under convicted States, United 1, 36, n. 65 S.Ct. merely being from this is far added that Terminiello 918, 935, (1945); 89 L.Ed. 1441 an appears, upon as it proposition, academic City Chicago, original record filed examination 93 L.Ed. 1131 and Yates v. Court, attorney the State’s with States, United urged upon the emphatically upon the trial 1064, 1072, 1 (1957).” L.Ed.2d 1356 394 U.S. appellant ‍‌‌​‌‌‌‌​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌‌‌‌‌​​‌​‌​​‌‌‌​​‌‍convict the they that could jury 586, 1362, 89 22 L.Ed.2d at 581. S.Ct. alone, regard without clause under the first “ * * * * * * Hence, we conclude that neces- other clauses. to the [T]he Stromberg, governed by in which case is rule of the manner sary conclusion from that, conviction appellant’s and that must be set jury to the case was sent if we find that is invalid under aside could have been question in the clauses Constitution, solely upon his words and that a the conviction based the Federal resting conviction on such a basis would be upheld. cannot 356 matter to which we based on a finding

unconstitutional —a of a sodomitical act moment. shall turn in a committed in private with an person adult of the opposite sex who was not defendant’s “Moreover, assuming even that spouse or if the verdict rested on the find- appel- precludes record inference ing the oral copulation with Mrs. Water- might have lant’s conviction been based house accomplished was by force and vio- words, solely on his we are still bound to lence by exerted defendant. reverse if the conviction could been We his words and his act.” based both conclude defendant has standing to 586-587, 1363, question the 89 S.Ct. at 22 constitutionality 394 U.S. of the sodomy (Emphasis original). applies in the statute as it private, L.Ed.2d at 582. consen- sual acts persons of adult of the opposite foregoing propositions of law find sex not married to each other as an invasion support following in the further United personal rights. Supreme Court decisions: New York We do not Sullivan, 254, understand Company Times 376 ques- U.S. tion power 283-284, 710, 727-728, of a state 11 to constitutionally 84 S.Ct. regulate 1412; sexual 686, activity Leary involving 95 A.L.R.2d adult United cor- ruption of minors States, 6, 31-32, or forceful 1532, nonconsenting U.S. S.Ct. sexual behavior between 1545-1546, 57; adults and to 23 L.Ed.2d ren- Bachellar v. der criminal such 564, sexual activities. 570-571, Maryland, 397 U.S. 90 S.Ct. 1312, 1315-1316, 570; 25 L.Ed.2d Schacht v. It has been concluded a defеndant con States, 58, 70, 1555, United U.S. victed of forced or sodomy does not (White, 26 L.Ed.2d 44 concur have standing to rights assert of mar result); ring Tulsa, and Eaton v. City of ried or unmarried consenting adults to en 697, 699, 94 S.Ct. gage in private such sexual activities. See L.Ed.2d 693. State, Carter v. 225, 255 Ark. 500 S.W.2d den., cert. 94 S.Ct. Appeals The Third Circuit Court of 110; 40 L.Ed.2d People v. Sharpe, 183 aptly stated: Colo. 514 P.2d 1140-1141 “ * * * As we way have no of know- Hughes State, 14 Md.App. 287 A.2d ing which jury alternative instruction the 299, 303-304, den., cert. selected or followed in its determination of 317; State, Jones v. guilt, we appellant’s required are to review 429, 430-431; Nev. 456 P.2d Byrd v. validity aspects of both charge. State, 65 Wis.2d 222 N.W.2d 699- ground invalid, If either the conviction 700; Brewer, United States v. 363 F.Supp. must be reversed: [citing authori- 606, 607 (M.D.Pa.1973) (Brewer denied Bowen, United States v. 414 F.2d ties].” standing to prisoners to assert the rights of (3 1969). (Emphasis 1272-1273 Cir. consenting adults); Slayton, Lovisi v. original). F.Supp. 620, (E.D.Va., Richmond Divi- Examination of the record reveals the 1973); sion Cady, Swikert v. testimony conflicting. was Defendant F.Supp. (E.D.Wis.1974). maintained and continues to maintain III. The main and most compelling (while, time, Roma consented at the same thrust any argument against a sodomy denying place). the act took Roma claimed statute’s constitutionality entails assertion otherwise. It is clear the act place took that the emerging right privacy prоtects private. However, stated, there is no private sexual activity between consenting means court could conclude as adults of the opposite sex not married to a matter of law whether or not this each general other. The right of privacy consenting was between adults. “ * * * has been viewed as emanating it impossible say We deem wheth from the first guarantee amendment’s general er the “guilty verdict of freedom of association, NAACP crime of sodomy” jury returned Alabama,

357 * * 381 at Stanley U.S. 85 speech, of S.Ct. (1958); and 1488 L.Ed.2d 1243, 1682, 22 14 L.Ed.2d at 516. 557, 89 S.Ct. 394 U.S. Georgia, v. amendment, fourth (1969); the 542

L.Ed.2d interpreted Several decisions have Gris- 1868, 1, 20 Ohio, 392 U.S. Terry v. denying right wold as the state the regu- protection equal 889 L.Ed.2d private late marital relations. amendment, Lov fourteenth clause “ * * * The import of the Griswold 1817, 18 1, 87 S.Ct. Virginia, 388 U.S. ing v. private, consensual, decision is that marital amendment, ninth (1967); the 1010 protected regulation relations are from 479, Connecticut, 85 381 U.S. v. Griswold through the state the use of a criminal (Goldberg, (1965) 1678, L.Ed.2d 510 14 S.Ct. penalty.” 873, Cotner v. Henry, 394 F.2d of the Bill J., penumbras concurring); (7 den., 1968), 847, 875 Cir. cert. 89 id.; liberty concept of Rights, of S.Ct. 21 L.Ed.2d 118. clause of the process by the due guaranteed Worthy noting of is the comment in note Wade, amendment, 410 Roe v. fourteenth 3, page 875 of Cotner that American “[t]he 705, 35 (1973). L.Ed.2d 147 113, 93 S.Ct. U.S. adoрts Law Institute Model Penal Code ap candid that is satisfied The Court private view that consensual sexual conduct Wade, Mr. supra, and of v. of Roe proach between adults should not ordinarily be in Griswold v. concurrence Harlan’s Justice subject to criminal sanction.” 499, 85 Connecticut, 381 S.Ct. supra, U.S. Batchelor, Buchanan v. 308 F.Supp. clause of process the due (N.D.Tex.1970), 732-733 has statement: provides substantive amendment fourteenth values human for fundamental protection Paton, D.C.Conn., “In Travers v. 261 liberty,’ concept of ordered in the ‘implicit 110,113 (1966), the F.Supp. opinion observes Connecticut, 319, 325, 58 Palko v. protects sanctity that Griswold ‘the of sexu- (1937), repre 82 L.Ed. S.Ct. aspects relationship,’ al of the marital but * * Lovisi preferred view. sents applicable only holds that Griswold is with- 620, 624. F.Supp. Slayton, supra, v. Smayda in the marital context. v. United States, Cir., (1965), 352 F.2d 255-257 recognized the Supreme Court Griswold, application also restricts the to sexual rela- privacy applies as it right to holding that homosexuals committing acts Connecticut, Thus, Griswold tions. sodomy rest-room are the use and supra, prohibiting a statute protected by that decision.” This opinion struck contraceptives distribution grounds “ was vacated * on different in Wade * * operated on the basis down Buchanan, U.S. S.Ct. relation of husband on an intimate directly (1971) L.Ed.2d 526 and 401 U.S. in one physician’s role wife and their (1971). S.Ct. 28 L.Ed.2d The dis- relation.” 381 U.S. aspect of that enjoined trict court had enforcement of the at 513. S.Ct. statute, and the Court va- “ * asked, Douglas Mr. Justice Younger Harris, cated with reference to search the police we allow the Would L.Ed.2d 669 marital bedrooms for precincts of sacred Mackell, Samuels contraceptives? the use of signs telltale (1971), 27 L.Ed.2d 688 repulsive to the notions of very idea is stay enjoin, or forbid federal courts or marriage surrounding the relation- privacy through declaratory achieve that effect ship. judgment, proceedings. court pending state reasoning con- It would therefore seem privacy older “We deal with a cerning sodomy capable of reliance. than our Rights the Bill of than —older sys- than our school parties, older political recognized The Buchanan court a state’s Marriage coming together is a power regulate promiscuity tem. “sexual misconduct”, worse, enduring, and hopefully agreed but with Griswold such better or for being “regulation may sacred. not be achieved means degree intimate unnecessarily broadly and tion sweep of two individuals eaсh separate with a protected of area free- thereby invade the intellectual and emotional makeup. at (Griswold, 381 U.S. 85 S.Ct. doms.” [citing at U.S. authorities].” Alabama, NAACP v. quoting from S.Ct. at 31 L.Ed.2d at 362. 84 S.Ct. Thus, it may Equal be said the Pro (1964)). F.Supp. at 733. tection right Clause insures one’s privacy to that while the act It was then determined in the individual sense. in Governmental by the approved majority is not of trusion into “fundamental matters” cannot “ *** population, opinion the such is of distinguished be the on basis of marital the to en- sufficient reason for not status. of liberty persons the married croach At another point Lovisi v. Slayton, Absent some private their conduct. de- F.Supp. 625-626, we find this discussion: (good matters of necessity, monstrable “The phrase ‘right to bad) privacy’ may, unless protected regula- taste are to from * * * defined, carefully be misconstrued. [citing This tion. authorities].” because privacy can refer either F.Supp. at 733. to seclusion or to that which is personal. To an describe law, findings In its the district court private act as may mean that per- swept into the the statute area of concluded formed behind closed doors. It may also liberties, such private as the “fundamental * * * mean that doing of that act is a decision couple].” married acts [the personal to the one performing it hav- F.Supp. at 736. ing no effect on others. In the constitu- step The next in this area is taken context, tional the meaning of privacy is may with pri the State not interfere doubtless closer to latter than the for- consenting sexual actions of adults of vate mer definition. does mean, This how- opposite sex not married to each other. ever, that the United States Constitution reasoning found This has often its basis in guarantees to an individual the right Baird, Eisenstadt perform any act which he choose to do case which held the long so performance of that act has treatment accorded married and different meaningful no Rather, effect on others. persons the availability as to unmarried right to privacy extends to the perform- contraceptives grounded was not on a ra personal ance of acts or only decisions with- Thus, the difference. statute violat tional in certain contexts. [citing au- Court, equal protection. through ed thorities].” Brennan, this was so Justice reasoned under (1) of two If under either situations: Gris- v. Slayton, Lovisi 363 F.Supp. of contraceptives wold the distribution that, it is “Despite noted philo persons prohibited married could not be due sophical differences the majority in Gris right privacy, then such right Connecticut, wold v. individuals; equally would inhere If (1965), 14 L.Ed.2d 510 as to which prohibition does not bar the state’s Griswold constitutional provision encompasses the contraceptives, on distribution of right to privacy, agreement their was com persons could not allow married state such plete as sanctity of the marital rela right deny but unmarried individu tionship.” We are light convinced in als. S.Ct. at decisions considered herein and the authori 31 L.Ed.2d at 362. ties cited in those opinions that the right of privacy extends to Eisenstadt court further sexual relations stated: between “ * * * husband It is true that in and wife. Consequently, Griswold the if sec privacy tions 705.1 are question applied inhered in the and 705.2 to sexual relationship. marital Yet the marital acts private cou- committed in between consent entity ing is not ple independent couples, an with a married the statutes are uncon own, mind and heart of its but an associa- stitutional. legislature ex the rationale to enact statutes opinion,

In our which other- protect the pass extends wise pressed in Eisenstadt constitutional muster providing performed regulation in rendering of sexual relations criminal manner sexual the consenting adults of acts of any public, bеtween nature in private bestiality, corruption married to each other. adult sex not children or forcible non- opposite consenting sexual behavior between adults. the state can encroach Before question We do not reach the of homosexu- recognized areas of fundamental into ality since the applicability of the statute to personal right privacy, the rights, such as such conduct was not made an in this issue subordinating exist a interest there must case. compelling necessary, which is question The remains whether this court related, of a merely accomplishment should direct defendant be discharged and policy. state Griswold v. Con permissible his bail exonerated or whether a new trial 497-498, necticut, should be ordered on remand under the (Gold provisions 793.21, of section The Code. J., concurring). The has not berg, State interest the existence of such shown The pertinent provisions of section 705.1 here. have been set opinion. out in this As stat- ed, it sodomy illegal, makes all whether referred the Defense counsel has persons unmarried, between married or be- might which publications numerous court to consenting tween or nonconsenting adults as “sex manuals.” adequately described bе opposite between the same or sexes. It State, v. 255 Ark. at suggested in Carter As draws no distinction between we do not deem S.W.2d private Likewise, age acts. par- the compelling of such publications these to be ties is not relevant. judicial take may effect that we force or “ * * * data, arguments and supposed the notice of recognize We that courts (even authors recommendation should construe statutes to avoid unconsti- bestsellers). may have been though they tutionality they reasonably can. Kruck quest in a publications place have no These Needles, 259 Iowa 144 N.W.2d 296.” of the constitution involving determination Lavin, (Iowa 204 N.W.2d State have criminal statute. We validity of a al 1973). reaching our this material in

not considered problem presented by this stat decision. ute is not one may which by solved present section 705.1 in its We hold application of the doctrine of separability as an invasion of is unconstitutional form which length was discussed at in State personal rights, such as fundamental 250, 261-263 Blyth, (Iowa 1975). 226 N.W.2d attempts it privacy, to the extent right of word, There is phrase no clause or penalty through use of criminal regulate may be excised from this section which will performed practices sodomitical consensual constitutionally acceptable render opposite by persons adult private ‍‌‌​‌‌‌‌​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌‌‌‌‌​​‌​‌​​‌‌‌​​‌‍in standing still leave capable sex. fulfilling legislative intent in enacting unnecessary constitutionally to consider the other the statute. To be It valid attack urged by defendant in his under this decision section 705.1 grounds would to be constitutionality excluding prohi of these statutes. construed as from its on reason, private we do not reach other bition the same consensual sodomitical con For as duct of persons opposite asserted adult sex. contentions grounds for reversal. problem approach with this latter point out what should be obvious what words in the statute lend themselves

We we are to such reaching foregoing Any attempt decision construction. such presently require 705.1 as this court dealing judicially supply with section .would way power of the what has been legislatively force and in no touch omitted. (Iowa Holding the Monroe, 236 N.W.2d United States Constitution state practice regulation us about such forbids of such 1975), consensual admonishes reason, acts in absence of a compelling language: that it amounts to 2 Sutherland to continue in of limitation while [Sands fect, terms of a statute. Moses, ^[652] Act’s guise of State v. § “Furthermore, 204.401. be an operation by invalidating Fourth 223 N.W.2d construction, Wedelstedt, A court impermissible enlargement of Statutory Ed. To extend the effect such action 1973] judicial legislation. allowing the City 263, extend or is to invite criticism Construction, § of Cedar 268 not, would, (Iowa scope of an 213 N.W.2d enlarge the a page under remainder Rapids v. provision in ef- 1974); 359.” See supreme lar less unconstitutional bivalence action of the which also aff’d, majority, displaying an understandable am- (sodomy) in mond, 403 F.Supp. Commonwealth’s Virginia clearly ignores 547 P.2d 6 upheld - court, strikes down U.S. toto. the latest decision from a state indicating it United the constitutionality of a simi- sodomy (1976), State v. U.S.L.W. only -, Atty. In so statute 1199 doing, Bateman, 96 S.Ct. pursue applied, holds [E.D.Va.1975], City (see [1976]). the statute ignores a rationale The Code 113 Ariz. 1489, nonethe- of Rich- Doe v. Court, It which no other court of last resort any in cannot The statute be construed jurisdiction adopted. has constitutionally, ap render valid when majority plied presented by employs situation United to the factual States grounded Court decision on the this record. sanctity marriage relationship (Gris hold the con- We therefore statute cannot Connecticut, wold v. 381 U.S. 85 S.Ct. stitutionally applied alleged sodomiti- 1678, 14 [1965]) L.Ed.2d 510 and аnother performed private cal acts in between con- grounded on personal choice procrea senting opposite adults of the sex. We do (Eisenstadt tion Baird, v. any view the not intimate constitutional- [1972]) S.Ct. 31 L.Ed.2d 349 in pio ity applied any as other neering an unqualified and absolute factual situation. privacy protects which an act of fellatio The case is—Reversed but not remanded. two persons, between each married to an other, to the rendering extent of proscrib RAWLINGS, REES, HARRIS ing Iowa statute unconstitutional. Such a JJ., McCORMICK, concur. only result should be reached after the most analysis careful to determine whether it is REYNOLDSON, J., MOORE, J., Le- C. mandated. JJ., UHLENHOPP, GRAND and dissent. I. What is the effect of the majority REYNOLDSON, (dissenting). Justice holding? I dissent in what been a respectfully The ambivalence of majority opinion, very appeal. troublesome noted, above is best demonstrated com- light Viewing the evidence in the most this paring sentence: “The statute cannot defendant, favorable to we have the case of be construed to render it constitutionally woman, another, a man and each married to applied valid when to the factual situation consensually engaging in an act of fellatio presented by rеcord,” with the lan- in a person’s majority third house. The guage quoted Nothing below. can disguise protected finds “right this conduct fact, however, 705.1 has been § declared privacy” grounded on the process due clause face, unconstitutional on its nor will the Constitution, of the United States Amend- bench and bar interpret this decision ment “provides pro- which substantive way. other Although superficially appear- tection for ‘im- fundamental human values ing to reserve all those other troublesome ” plicit concept liberty.’ in the of ordered situations which now soon clog will our acts, so- (e. g., constitutionally unprotected or a area. homosexual See appeals pipeline nonconsenting minors, Maryland, with acts Bachellar U.S. domitical mistaking the acts) is no (1970); there S.Ct. 25 L.Ed.2d 570 sodomitical Street 705.1: York, sweeping § indictment majority’s New (1969); L.Ed.2d 572 Williams v. North illegal, Caro- makes all 705.1]

“[I]t [§ lina, 87 L.Ed. or un- persons married whether between (1942); California, Stromberg married, or noncon- consenting between between the same 75 L.Ed. 1117 senting adults or Bowen, United (3 It draws no distinction F.2d 1268 opposite sexes. private 1969). acts. Like- Cir. between

wise, rele- age parties is not majority That to remand is fails further vant. proof it strikes down If 705.1 toto.

statute is only unconstitutional сon- sex, word, senting adults of the then phrase opposite no clause or There is simple should be a matter allow the jury excised this section may be from constitutionally ac- to find whether that is the fact render it situation which will presented standing hand, leave a statute in this case. the other ceptable and still On rationale, majority’s the intent the fulfilling legislative under if there capable of are statute.” words to strike enacting permit the no which would the jury distinguish to a consenting between rationale, course, this Of under restrictive nonconsenting situation, and then there are ex- may words which be there are also no permit jury none to strike which a would to cases applicable cised it to future to make distinguish between male and female or sex, of the same or non- involving persons adult and minor. It is clear the majority’s or adult-minor or consenting persons approach drains all viability from 705.1. § The of the ma- language sexual activities. portions and jority quoted earlier above today’s Another fall-out from invalida- to opinion only interpreted be the can 705.1 will tion of be a multitude of chal- § overly as is (1) mean: the statute written by those lenges' previously convicted encompasses it constitution- broаd because crime, asserting 705.1 this decision must § activities; (2) court is ally protected this given application. be retroactive At the scope the of the stat- powerless to restrict minimum, the majority should limit the ute; 705.1 (3) therefore is unconstitution- § opinion by declaring its havoc will create it well- hypothesis, on Given al its face. applies prospectively only. the principles inexorably dictate established We turn now to a of the argu- discussion Pfister, v. Dombrowski statute is void. See defendant, by ments raised here some 1126, 1116, 14 85 S.Ct. 308 U.S. majority unfortunately adopts. of which the 22, (1965); 1 Sutherland Statu- L.Ed.2d (Sands 4th tory 2.06 at 22 Construction § Code, vague- II. Is The void for § 1972). ed. ness? If, majority opin- elsewhere in its as the language Defendant contends intimates, to hold desultorily ion it intends vaguely statute so defines sodomitical con- to con- only unconstitutional as statute constitutionally duct it unenforceable. opposite sex then senting adults of adjudicated defined But our cases have so, case (1) say remand the should: within the brought scope statute’s iden- appropriate for retrial under instructions. tical act defendant was accused commit- disposition by This was the made Unit- 65, v. Iowa ting. Simpson, State case cited ed Court in each Farris, (1951); N.W.2d 601 State where cоnvic- by majority defendant’s 505, (1920). Iowa 178 N.W. 361 which, depend- encompassed tion activities cited finding, may majority appropriately ing jury’s on a factual vague constitutionally protected in a our rule that statute is not so fallen either meaning void where the as to be Of course uncertain defendant initially must show by be of the words can ascertained refer- he has standing question the statute’s judicial to other ence determinations. constitutionality ground. on this Ordinarily Williams, 302, person N.W.2d whom a may constitu (Iowa 1976). adjudicat- out our Fleshed tionally be applied will heard cases, 705.1 is supra, ed not unconstitu- challenge § ground statute on the may tionally vague affecting manner conceivably be applied unconstitutionally appeal. in this others. Oklahoma, Broadrick v. 601, 610-611, 93 37 L.Ed.2d vague- are we concerned with the Nor 830, (1973); State, Carter v. supra, 255 intertwining referred to ness-overbreadth 233, 373; Ark. at 500 S.W.2d at Hughes v. applicabili- majority, find State, 14 Md.App. 287 A.2d involving the ty in cases first amendment. denied, cert. 93 S.Ct. privacy right which defendant claims (1972). 34 L.Ed.2d 317 Nor does defendant insulate from prosecution should him appear to bring himself within any of those amendment, in the fourteenth rooted exceptions general rule collected in by majority indicated division III of its Broadrick. Wade, opinion. Roe v. See 93 S.Ct. Nonetheless, I would the standing resolve Price, (1973); State v. 237 N.W.2d issue in defendant’s favor. At the same (Iowa 1976). time, I believe the court should follow well- precedent reasoned and forthrightly say statutes

Almost-identical have withstood 705.1 is constitutionally inapplicable to void-for-vagueness constitutional attacks. sexual spouses conduct home, Locke, in their Rose v. under the holding in Stone, Griswold Connecti Wainwright cut, supra. Lair, 388, See State v. 62 21, 190, 414 94 N.J. S.Ct. 38 L.Ed.2d 179 U.S. 396, 748, 301 A.2d (1973); 753 cf. State, 232, Common (1973); 225, Carter v. 255 Ark. Balthazar, wealth v. 318 (Mass. N.E.2d 478 368, (1973), denied, 500 S.W.2d 373 cert. 416 1974). 905, 1610, 94 40 L.Ed.2d U.S. S.Ct. 110 State, (1974); 266, Dixon v. 256 Ind. ‍‌‌​‌‌‌‌​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌‌‌‌‌​​‌​‌​​‌‌‌​​‌‍271- This require would first ancillary an de- 84, 272, (1971). 268 N.E.2d 86-87 termination whether the sweep of 705.1 § may be so limited without voiding the stat- void-for-vagueness Defendant’s argu- ute. ments without merit. are The majority reasons because there are

III. Is unconstitutionally 705.1 over- § no specific words 705.1 which § leave broad? room for this or other construction the there question While is considerable statute cannot salvaged. be do agree. I not challenges whether defendant § 705.1 for Whether this court will limit the thrust aof overbreadth, point at one in his brief he statute or add to in order to remove assert, “[tjhere justification does can be no constitutional turns, infirmities frequently for the overbreadth this statute which not on the mechanical construction of the attempts regulate practices to the sexual language, statute’s but on the exigencies husband and wife.” and a pragmatic overview of all surround- ing circumstances and policy considerations. attempts A statute is overbroad if it to Carriers, See C. S. C. v. Letter 548, governmental achieve a purpose to control 571, 2880, 2893, 93 796, S.Ct. 37 812 prevent constitutionally subject activities (1973) (“ our task is not to destroy regulation by to state which sweep means can, ifAct we but it, to construe if unnecessarily into areas of protected free- consistent with Congress, the will of so as Koota, doms. Zwickler v. 389 241 U.S. 249- to comport with constitutional limitations”). 250, 391, 396, 19 L.Ed.2d 451 Willis, State v. 218 N.W.2d 923 The concept of limiting application of- (Iowa 1974). ten recognized has been United (1962) (reading v. missing Thus Broadrick element of Court. in- Oklahoma, 321.76, Code, 1954); U.S. tent supra, 413 into § State v. Schultz, 242 Iowa N.W.2d 9 (reading the element of intent into relevantly states: § Code, 1950); see Morissette United invoked not been “Facial overbreadth States, has been or limiting construction when (1952) (furnishing 96 L.Ed. challenged statute. placed be on the could 641). element of intent in 18 U.S.C. § It is no apparent compelling there rea- [Wjhatever may overbreadth exist (an to son strike down 705.1 action analo- through § аnal- case-by-case should be cured gous violating the ancient admonition which ysis the fact situations to its throw the out baby bath) with the sanctions, may not assertedly, applied.” when operation its can be limited to (Emphasis supplied.) those may areas which the State constitutionally Rasmussen, N.W.2d In State regulate. 1973) operative we limited the (Iowa so rec- statute, must saying, good of a reach There are reasons for salvaging “[W]e infirmities the constitutional 705.1 ognize apart ever-present from our § motive plaintiff’s con- adopting result from would holding to avoid a unconstitutionality Act. order to Iowa struction reasonably possible. Aldrich, State v. we therefore limit problems, such avoid (Iowa 1975). N.W.2d 204.- 204.308 and sections application of knowledge The sure abolition of 705.1 Code, practitioners 101(22), The (until would all meaningful penalty remove (Emphasis supplied.) in Iowa.” registered legislative corrective action at some future Price, 237 N.W.2d supra, In State date) unknown most traumatic (prohibiting 724.1 the reach of § we limited types sexual assaults should cause us to of sex “buyer seller prostitution) weigh carefully any permissible alternative, setting” al- commercial in the traditional despite fact most members of this court on its face is broad though the statute subjective legisla- reaction that sexual enough proscribe non-commercial tive reconsideration and overhaul of the Farrell, N.W.2d activity. In State long overdue. 1973), vacated and remand- (Iowa there a Although may body opinion be of Iowa, 907, ed, 94 S.Ct. Farrell v. that willing adults between sodomitical 3198, (1974), 223 N.W.2d 41 L.Ed.2d 1154 acts should be left to moral sanctions alone 32.1, 1974) we The Code (Iowa held § 270 law, and the eliminated from criminal no longer applicable to the utterance of “no report decision from a court of in any last Henderson, In re speech.” also See pure jurisdiction has been found by majority the (Iowa 1972). N.W.2d 111 199 such holds a statute unconstitutional it, has Nor, the situation demanded when ground majority on the relied on in the reading into a any difficulty we had have opinion. to save safeguards order various statute For upheld sodomy decades courts have infirmity. v. constitutional State it from against statutes attacks on constitutional Monroe, 24, 1975) (Iowa 37 236 N.W.2d grounds. the extensive See collection of portion of the (“With the unconstitutional decisions, Annot., 58 appellate court A.L. eliminated, constitutionally statute 643-648; 636, 640, 70 R.3d Am.Jur.2d Sod Mullaney must be principle of mandated 805-806; omy 2, pp. Sodomy 81 1 remaindеr”); § C.J.S. § Catholic Char. into the read (Supp.1975, 33.10). n. The matter ordinari Dubuque Zalesky, 232 N.W.2d Arch. of v. of ly present question been held to 539, (Iowa 1975) (“Interpreting” a for 546-549 See, legislature and not for the courts. to constitu adoption Iowa’s include Bateman, hearing); g., 107, and State e. v. tionally required notice 113 Ariz. 6, 9-10 Drummer, (1976); State, 117 254 Iowa N.W.2d 505 547 P.2d Carter 364 371; 255 Ark. 500 S.W.2d But a rational supra, basis for different treat Hurd, Cal.App.3d 865, 5 85 People v. ment non-spouses with respect Roberts, 726

Cal.Rptr. People v. plain: the law has customarily treated 488, 495, 64 Cal.Rptr. Cal.App.2d spouses non-spouses and differently with Ragsdale, Cal.App.2d (1967); People respect familiarity to sexual and conduct. Cal.Rptr. (1960). 641-642 Consider the traditional sex crimes involv ing non-spouse participants: fornication, relationship only is not a marriage The see 2 Am.Jur.2d Adultery & Fornication 8§ classification, only it is the valid basis for 967; at p. 37 C.J.S. p. Fornication § any interpretive for con- ground rational (“A subsisting valid and marriage between family 705.1. The married struction § parties accused of fornication renders relationship building is the fundamental their relationship sexual legal precludes and society, concept judicially so block in our prosecution fornication”), and lewd recognized it has withstood constitu- well ness, 53 C.J.S. Lewdness 3 at 9p. (“[M]ar- § religious on freedom in tional attack based riage of parties to each other at the States, v. United Reynolds time of alleged offense is a defense”). (1879). Loving See 25 L.Ed. also If the may place law non-spouses in a class Virginia, 388 U.S. as to fornication lewdness, and (1967). certainly may do so as to sodomy. See Moore v. short, may we and should concede State, 501 P.2d (Okl.Cr.App.1972), cert. 705.1, Code, sweeps with an unconsti- § denied, tutionally brush in absence a limit- broad (1973). That ing construction. construction —hold- On activity spous- impression, Eisenstadt, sexual first ing it cannot reach supra, ap- pears viable es in their home— is a alternative treat married and par- unmarried adopt. Limiting ticipants same, the court should that respect least with pursuant plain au- factual situation non-sodomitical sex acts. A superficial Broadrick, Rasmussen, thority supra, analysis su- runs this way: the court held that Price, supra, preserves the statute pra, spouses since contraceptives, non- spouses for all other intended sanctions. must be them; allowed to have non-spouses have contraceptives, for what limited, IV. Does as so violate purpose would they have them except the equal protection clause? engage intercourse; in sexual therefore a logical projection of equal requires clause Eisenstadt protection of the four- spouses that non-spouses deny teenth amendment does not to states be classified the same all respecting peo- activity. different sexual power to treat classes ple ways. But a in different classification But interpretation ignores gist reasonable, arbitrary, must and must opinion. Eisenstadt Massachusetts ground having rest some of difference urged purpose its statute’s was to deter object relation to fair substantial premarital However, sexual intercourse. legislation, persons of the so that all simi- the court denied that “deterrence pre- of larly shall be circumstanced treated alike. marital sex reasonably regarded be as Reed, 75-76, Reed purpose the law.” Massachusetts 253-254, (1971). 30 L.Ed.2d U.S. at S.Ct. at 31 L.Ed.2d at

Defendant reasons that because the con- 359. The court to went length considerable privacy of in right stitutional the marital to objective demonstrate the the of Massa- relationship recognized pre- in Griswold chusetts anti-contraceptive statute was not sodomy reaching vents Iowa’s act from the discourаge to misconduct, sexual stating the activity consenting spouses sexual of in the statute had “a dubious relation to the bedroom”, consenting non-spouses “marital prohibition State’s criminal on fornication.” protection are the entitled to same under U.S. at at S.Ct. L.Ed.2d holding Eisenstadt, the supra. in at place 360. At no did opinion the inti- majority opinion unconsti- The fornication statute was determines this the mate The privacy. right persons, an of exists for such invasion based on its tutional Eisenstadt, of objective interpretation supra. the Massa- of the concluded court was the anti-contraceptive statute chusetts majority on concludes the basis of the as that of objective forbidden same Goldberg’s concurring opinion Justice case in the Griswold Connecticut Connecticut, supra, Griswold v. at. is, couples, inter- to that relating married 1688-1689, 497-498, 85 S.Ct. at 14 L.Ed.2d bear whether to with “the decision ference the at must here show a at child.” 405 U.S. beget a or to compelling justify State interest its en- 362. The Eisenstadt 31 L.Ed.2d at at “recognized into areas of fun- croachment persons not be held unmarried could court course, rights.” ignores damental Of ones with differently from married treated Goldberg’s warning that court’s Justice individual, mar- right to “the of respeсt holding in Griswold “ to from unwarranted * single, be free ried or way no interferes with fun- into matters so intrusion governmental proper prom- of sexual regulation State’s deci- affecting person as the damentally or As Brother iscuity my misconduct. beget or a child.” whether to bear sion dissenting Harlan so in his well stated 405 U.S. at supplied.) (Emphasis Ullman, supra, in Poe opinion at 362. at at 553 S.Ct. at 6 L.Ed.2d at [81 1782] pains court be such Why would the 1025]. statutory deter- distinguish

Eisenstadt ‘Adultery, homosexuality and the such statutes are fornication unless rence of like are intimacies sexual which compe- within the class and in a different . . . State forbids but the inti- The ob- legislature enact? tency of of macy husband and wife is necessari- statute, even less our jective ly accepted an essential and feature of statute, objective a fornication marriage, institu- than institution of an right of individ- interfere with tion which not only it not to the State must beget allow, or always every to decide whether bear but and in uals which children, prohibit age protected. what it has fostered but rather > to be sexual mis- has determined legislature equal protection The Eisenstadt conduct. sum, privacy I that the believe different of non- holding forbids treatment in the marital relation fundamental limiting procreatiоn, respect with spouses personal right and basic—a ‘retained state-prohibit- to other respect not with but people’ meaning within the (Emphasis sexual activities. sup- ed Ninth Amendment.” plied.) or re- Nothing in Eisenstadt Griswold 498-499, —381 U.S. 1689- S.Ct. at striking 705.1 it has down when quires 1690, 14 L.Ed.2d at 523-524. sug- in its reach as properly limited been III, classifica- supra. in division gested The United fur- Court has a resulting such limitation tion from privacy right ther of this scope limited There basis. and constitutional traditional personal rights it said that can “only when equal be no violation of defendant’s would deemed in the ‘implicit ‘fundamental’ * ** rights. constitutional protection liberty’ are concept ordered personal pri- in this guarantee included pri- a right Does defendant V. Wade, vacy.” supra, Roe v. him 705.1 vacy protects from § S.Ct. at prosecution ? Roe, “They As in 176-177. noted [later right non- also clear Finally, we the issue whether make it that the reach decisions] engaging relating in consensual has some extension to activities to spouses privately * * ** *; *; marriage procreation a constitu- protected by acts are sodomitical * * * ; contraception relation- right privacy. family of tional * * * ; child and rearing pelling Rather, and edu- ships interest” test. according to omitted.) (Citations Id. cation *.” the United Supreme rationale, Court we must examine the*nature of the under- dependent reiterated the na- The court lying right sought to be protected to deter- Davis, privacy in Paul v. right of ture of the mine whether it is “fundamental” or “im- - 1155, 1166, -, plicit in concept the of liberty.” ordered If 44 U.S.L.W. is, the compelling interest test must be “While there is no it said: when (see Wade, met Roe v. supra); not, if it is specific in privacy’ any found ‘right of only the State need show a rational basis Constitution, Court of the the guarantee regulation for its activity. Rinehart recognized privacy’ may ‘zones of has Brewer, 360 F.Supp. (S.D.Iowa 1973), specific constitutional be created more aff’d, (8 1974). F.2d Cir. thereby impose limits guarantees and supplied.) power.” (Emphasis Thus government question the of the State’s burden as- Again emphasized itself, court normal here logically resolves not into the previous question in right sociation of the decisions whether there is an abstract right marriage with matters of of privacy present case, had been in this but instead Price, supra, whether the family. right See State of consenting non-spous- (holding prostitution not en- to engage es N.W.2d at in activity sodomitical is fun- protection.) right-of-privacy titled to damental in a constitutional sense. course, holding that The majority’s Of United States Supreme Court, af firming se is a right privacy per fundamental Doe of Atty. Commonwealth’s for implica-, City Richmond, infinite right potentially creates 403 F.Supp. (E.D. on, litigant Va.1975), aff’d, whenever a From now tions. (U.S. U.S.L.W. 3545 right his 29,1976), a statute on basis of March challenges has question answered that negative. Doe, will the constitu- privacy, State the court held that it has a prove compelling Virginia’s since tional burden statute had a ra The interest in enforcement statute. tional basis it was not constitutionally in pressed F.Supp. to show a. firm. 403 would be hard State 1203. The same ra making 705.1, tional basis compelling Code, State interest arrest attaches to The which, 68A, limited (see chapter Code); The as above suggested, records is a logi cal marijuana extension prohibiting police use of in the home power. State’s Carter v. supra, (see Code). chapter The The State Ark. at 500 S.W.2d at up be forced come with a could also prohibiting keeping interest in a compelling Nor would the mere fact these individu- Code), (§ regu- ill The house of fame were consenting als adults (accepting ar- massage parlors, prohibiting adultery lating guendo hypothesis) defendant’s be enough (§ 702.1, Code) (§ 703.1, bigamy The in itself to activity shield their from statе Code), statutory proscriptions regulation. argument Such an rejected of other areas states have tra- number Slaton, in Paris Adult Theatre I v. regulated. possibilities ditionally are 93. S.Ct. only by imagination limited the fertile (1973): practicing our bar. “Finally, petitioners argue that conduct majority’s concept In contrast with the directly involves ‘consenting right, has, identi- privacy right privacy only adults’ for reason, that sole fied Court special the United States claim protection. constitutional found, vacuum. never existed in a It is Our Constitution establishes broad all, (in fashion) accompanying range tandem of conditions on the exercise of a basic so power States, constitutional fundamental by the but us to say litigant’s merits careful nurture. A mere that our incorporates Constitution invocation of the will not “right privacy” proposition that conduct involving con- application in itself mandate “com- senting only always adults beyond step we are unable regulation, is state take.” Price, supra, 237 N.W.2d

See

817-818. overview, majority opin- it is clear the of the United pushes protection

ion beyond any point Constitution far

suggested by Supreme Court United States engineers in unnecessarily It

decisions. left

complex moral and social areas better leaves citi- ‍‌‌​‌‌‌‌​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌‌‌‌‌​​‌​‌​​‌‌‌​​‌‍legislature. effectively It protection from the

zens without deterrent

most offensive of violent crimes. However faith, these good accomplishes

much legislation- by failing to utilize

results readily applied we have

salvaging devices situations, by failing appreci-

similar language limiting the careful in Gris-

ate

wold and Eisenstadt. judgment below.

I would affirm the

MOORE, J., and LeGRAND and UH- C.

LENHOPP, JJ., join in this dissent. Iowa, Appellee,

STATE of Eugene PILCHER, Appellant.

Robert

No. 58024. of Iowa. Court

May

Case Details

Case Name: State v. Pilcher

Court Name: Supreme Court of Iowa

Date Published: May 19, 1976

Citation: 242 N.W.2d 348

Docket Number: 57756

Court Abbreviation: Iowa