Com. v. Gallant

• Decision Date: 02 November 1977
• Citation: 369 N.E.2d 707,373 Mass. 577
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 707

369 N.E.2d 707

373 Mass. 577

COMMONWEALTH v. Alfred GALLANT.

Supreme Judicial Court of Massachusetts, Franklin.

Argued May 2, 1977.

Decided Nov. 2, 1977.

Conrad W. Fisher, Worcester, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., Northampton (Harry L. Miles, Asst. Dist. Atty., Northampton, with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ. QUIRICO, Justice.

A judge of the Superior Court, in a jury waived trial, found the defendant guilty of abusing and having unnatural sexual intercourse with a child under the age of sixteen years in violation of G.L. c. 265, § 23, and of committing an indecent assault and battery on a child under the age of fourteen years in violation of G.L. c. 265, § 13B. ¹ He was sentenced to imprisonment in the State prison for a term of not less than five nor more than seven years on the first charge, and for a concurrent term of not less than three nor more than five years on the second charge.

He initially sought to have his sentences reviewed by the Appellate Division of the Superior Court (see G.L. c. 278, §§ 28A, 28B), but later withdrew his appeal. There was apparently no attempt to pursue a direct appeal on the merits of the convictions, rather only the abortive attempt to have the sentences modified.

Eight months after conviction, the defendant, now represented by new counsel, filed a motion for a new trial, which was denied. The proceedings were made subject to G.L. c. 278, §§ 33A-33G. The defendant appealed from the denial of his motion for a new trial, and we granted his application for direct appellate review. G.L. c. 211A, § 10(A).

The sole assignment of error is that the judge erred in denying the motion which contended that G.L. c. 265, § 23, which prohibits "(unlawful) sexual intercourse or unnatural sexual intercourse, and (abuse of) a child under sixteen years of age," ² is, in the words of the assignment of error, "not clearly defined and is insufficient as a matter of law to allow a citizen to be cognizant of the type of conduct which the statute intends to prohibit and . . . is unconstitutional and void for vagueness." There is before us no appeal from the conviction of indecent assault and battery.

We have before us a ten page transcript of the hearing on the motion for a new trial, and the transcript of the trial. The testimony at trial was as follows. The defendant stayed overnight at the house where the victim, a girl, seven and one-half years old, lived with her parents. After her bedtime, the defendant came to her bedroom, brought her to his bedroom, touched her genitals, penetrated her mouth with his penis, and ejaculated.

We hold that the defendant's motion for a new trial was properly denied, and that G.L. c. 265, § 23, is not unconstitutionally vague as applied to the defendant's conduct.

1. Vagueness. The defendant's argument is that "unnatural sexual intercourse" as used in G.L. c. 265, § 23, is unconstitutionally vague because the term does not specify what conduct is prohibited, because the term has not yet been construed by a judicial opinion, and because no common law history or usage clarifies its meaning.

It is possible to discern several stands of analysis collected in the constitutional prohibition against vague statutes. First, and primary, is the doctrine that "(a) law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities." Commonwealth v. Orlando, --- Mass. ---, --- ^a, 359 N.E.2d 310, 312 (1977), "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In the succinct language of Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes."

Second, "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972).

Third, "(w)here a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the (vagueness) doctrine demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). See, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). There can be no conceivable argument that First Amendment freedoms are implicated in the present case.

Yet the vagueness doctrine is not a counsel of perfection. "The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). "A law is not vague . . . if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning." Commonwealth v. Orlando, supra, --- Mass. [373 Mass. 581] at --- ^b, 359 N.E.2D at 312; Commonwealth v. Jarrett, 359 Mass. 491, 496-497, 269 N.E.2d 657 (1971).

A sufficiently definite warning may be achieved by judicial construction, common law meaning, or the statutory history of particular terms. Commonwealth v. Brasher, 359 Mass. 550, 553, 270 N.E.2d 389 (1971). The constitutional adequacy of a criminal statute must be "measured by common understanding and practices." Commonwealth v. Jarrett, supra 359 Mass. at 497, 269 N.E.2d at 661; Commonwealth v. Balthazar, 366 Mass. 298, 300, 318 N.E.2d 478 (1974), habeas corpus granted sub nom. Balthazar v. Superior Court, 428 F.Supp. 425 (D.Mass.1977).

The United States Supreme Court has recently repelled vagueness challenges to statutes regulating unnatural sexual activity. In Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975), the Tennessee statute proscribing the "crime against nature" was held not vague as applied to cunnilingus, because it complied with the due process requirement "that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden." The Court stated that "(v)iewed against this (due process) standard, the phrase 'crimes against nature' is no more vague than many other terms used to describe criminal offenses at common law and now codified in state and federal penal codes." Ibid. See Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). Cf. Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g 403 F.Supp. 1199 (E.D.Va.1975).

"It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975). United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). United States v. National Dairy Prods Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). We must thus assess the asserted vagueness of a statute forbidding "unnatural sexual intercourse" in the context of evidence that the defendant penetrated the mouth of a young girl with his penis.

2. Statutory discussion. The evolution of the present statutory scheme requires some discussion. Prior to 1974, G.L. c. 265, § 23, as appearing in St.1966, c. 291, made it a crime to "unlawfully and carnally (know) and (abuse) a female child under sixteen years of age . . . ." ³ The crime had been described as "consensual intercourse with a female under the age of sixteen years . . . (commonly called 'statutory rape')." Commonwealth v. Franks, 365 Mass. 74, 77, 309 N.E.2d 879, 881 (1974).

While it is unnecessary to trace the lineage of G.L. c. 265, § 23, in great detail, it is clear that its history is entwined with that of the common and statutory law of rape. As stated in Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 634 (1931), "(r)ape is the carnal knowledge of any woman above the age of consent against her will, and of a female child under the age of consent with or against her will : its essence is the felonious and violent penetration of the person of the female by the defendant" (emphasis added). In Commonwealth v. Roosnell, 143 Mass. 32, 38, 8 N.E. 747, 750 (1886), the court said that "in Massachusetts the offence of unlawfully and carnally knowing and abusing a female child under the age of ten years is, and for more than two hundred years has been, known and designated as rape." The court then explained why in such a case it is "not necessary to aver or prove that the acts were done against her will, or without her consent. The reason is, that, from her tender years, she is held in law to be incapable of giving a valid consent to such acts, and the law conclusively presumes that she did not consent." Id. at 39, 8 N.E. at 751. ⁴ See Commonwealth v. Sugland, 4 Gray 7, 10 (1855).

"The statutory crime of carnally knowing and abusing a female child under the age of sixteen (G.L. (Ter.Ed.) c. 265, § 23), unlike the crime of rape (G.L. (Ter.Ed.) c. 265, § 22), does not require as elements to...