Anderson v. State, 2641

• Decision Date: 08 April 1977
• Docket Number: No. 2641,2641
• Citation: 562 P.2d 351
• Parties: Michael J. ANDERSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 351

562 P.2d 351

Michael J. ANDERSON, Appellant, v. STATE of Alaska, Appellee.

No. 2641.

Supreme Court of Alaska.

April 8, 1977.

R. Collin Middleton and Craig M. Cornish, Wagstaff & Middleton, Anchorage, for appellant.

Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., and Glen C. Anderson, Asst. Dist. Atty., Anchorage, for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

OPINION

ERWIN, Justice.

The primary issue on appeal in this case is the constitutionality of AS 11.15.134(a), ¹ which makes it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child.

On April 25, 1974, an indictment was returned against Michael J. Anderson, charging:

That on or about the 16th day of April, 1974, at or near Anchorage, in the Third Judicial District, State of Alaska, Michael J. Anderson . . . did unlawfully, feloniously, and with intent to gratify his sexual desires, commit a lewd and lascivious act upon the body of child under 16 years of age, to-wit: (R.N.T.), age 13, by placing the said child's penis in his mouth and sucking on it.

All of which is contrary to and in violation of AS 11.15.134 and against the peace and dignity of the State of Alaska.

On June 18, 1975, appellant moved to dismiss the charge against him on the ground that the statute he was charged with violating, AS 11.15.134, is unconstitutional. Superior Court Judge Peter, J. Kalamarides denied the motion on August 5, 1975. On August 16, appellant entered a plea of nolo contendere to the charge, preserving his right to appeal Judge Kalamarides' denial of the motion to dismiss.

At the time the plea of nolo contendere was entered, Anderson was examined by the court and by his own attorney for the purpose of determining whether there was a factual basis for the plea. As appellant notes and the State does not dispute, ² the testimony revealed that appellant Anderson was a forty-year-old homosexually oriented individual at the time of the hearing. The act for which Anderson was convicted occurred in his home. The victim, R.N.T., came to Anderson's home at Anderson's invitation and without the exertion of any apparent mental or physical coercion by Anderson. Anderson had met the child three days earlier at a movie. At that time he had invited the child to come to his home. Anderson stated he had explained to the child at that time that he could expect to have the act of fellatio performed on him if he came to Anderson's home. ³

Appellant asserts that the statute under which he was convicted, AS 11.15.134(a), is unconstitutionally overbroad. He argues that the statute sweeps within the scope of its prohibition constitutionally protected conduct as well as conduct which the State coudl constitutionally prohibit. Appellant is concerned that AS 11.15.134(a) infringes three 'rights': (1) the first amendment right of adults to possess and to exhibit literature; (2) the right of adults to privacy in their homes; and (3) the right of juveniles to control their own sexual development.

Appellant argues that the statute, which prohibits lewd or lascivious acts 'upon or with the body of a child,' could include acts which a child sees or hears because such acts would act upon the child's eyes or ears, both of which are part of his or her body. From this appellant concludes that an adult could be convicted of violating AS 11.15.134(a) if he or she displayed certain films or books or even sex education material to persons under sixteen if either the adult's or the child's passions were aroused by the display. Under the same rationale, appellant fears that AS 11.15.134(a) could be used to convict parents who dress in front of their children, those who tell dirty jokes, and those who are passionately affectionate with other adults while in the presence of children.

If AS 11.15.134(a) could reasonably be interpreted to punish all of the types of conduct which appellant lists, the statute would raise substantial questions concerning rights to free speech, association and privacy under both the federal and Alaska constitutions. However, the State argues that AS 11.15.134(a) is meant to punish only lewd and lascivious physical contact with children. We agree. We construe the words 'lewd or lascivious act . . . upon or with the body of a child' to require physical contact of the child's body by the adult or by some instrumentality controlled by the adult. This construction of AS 11.15.134(a) reflects the apparent intent of the legislature in this area. The statute appears in Chapter 15 of Title 11, which governs offenses against the person. While appellant is correct in noting that the construction we have adopted leaves a variety of acts calculated to arouse the sexual disires of children outside the statute, these acts are better dealt with under Chapter 40 of Title 11. Chapter 40 governs 'Crimes Against Morality and Decency' and includes the crimes of indecent exposure ⁴ and contributing to the delinquency of a child. ⁵

Under the construction of the statute we have adopted, the first amendment right of adults to possess and exhibit literature is not implicated by the statute. Nor is the right of adults to privacy in their homes implicated at least insofar as that right protects parents dressing in front of children, those who tell dirty jokes, and adults who are passionately affectionate with other adults in the presence of children. Therefore we proceed to consider the third aspect of appellant's overbreadth challenge to AS 11.15.134(a): that the statute violates the right of juveniles to control their own sexual development.

The State argues that an adult convicted of a lewd and lascivious act toward a child has no standing to challenge the statute prohibiting the act on the ground that it sweeps within its prohibition the sexual privacy rights of juveniles. ⁶ The State asserts that overbreadth analysis is only applicable to statutes which arguably child first amendment rights and not to statutes which arguably child other constitutionally protected activities. Since appellant's argument is that AS 11.15.134(a) infringes on the right of juveniles to privacy, the State maintains that overbreadth analysis is inappropriate and that therefore appellant Anderson does not have standing to raise the issue. The State also contends on the merits that the right to privacy does not include a constitutional right to engage in private homosexual conduct, even between consenting adults.

In response appellant Anderson asserts that a party raising an overbreadth challenge to a statute does have standing to invoke the rights of others. Appellant places primary reliance on Marks v. City of Anchorage, 500 P.2d 644, 656 n. 7 (Alaska 1972), in which this court stated that:

to protect first amendment freedoms, the Court has allowed 'vicarious' assaults on invalid statutes; a defendant need not show that his conduct was itself entitled to protection as a prerequisite to successfully attack an overbroad or vague statute.

Appellant also relies on the following language from Marks:

The overbreadth doctrine has evolved to give adequate breathing room to specific first amendment freedoms; a statute violates the doctrine when constitutionally-protected conduct . . . (is) included within the ambit of the statute's prohibition. ⁷

From the court's use of the words 'constitutionally protected conduct,' appellant concludes that the overbreadth doctrine is applicable to constitutionally protected conduct as well as to speech. However, the conduct involved in Marks was conduct with a communicative aspect and therefore the potential chilling effect was on first amendment rights.

While the scope of the overbreadth doctrine was viewed as broader of few years ago, ⁸ the United States supreme Court has adopted the position advanced by the State in this case. In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 168, 92 S.Ct. 1965, 1969, 32 L.Ed.2d 627 (1972), the Supreme Court stated that

(w)hile the doctrine of 'overbreadth' has been held . . . to accord standing by reason of the 'chilling effect' that a particular law might have upon the exercise of the First Amendment rights, that doctrine has not been applied to constitutional litigation in areas other than those relating to the First Amendment.

Cf. United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975).

We recognized this limitation on the overbreadth doctrine in Stock v. State, 526 P.2d 3, 7 (Alaska 1974), in which we stated:

if the statute is overbroad so that it may be construed in a manner to restrict the exercise of first amendment rights, it may be found to be invalid. (Footnote omitted)

We have eliminated appellant's 'pure speech' claims by construing AS 11.15.134(a) to prohibit only lewd and lascivious physical contact with children. Further we hold that overbreadth analysis is generally available only to challenge statutes which arguably chill exercise of first amendment rights. We therefore find the overbreadth doctrine to be inapplicable to the facts of this case.

Appellant next asserts that the statute under which he was convicted is void for vagueness. First, he argues that an ordinary citizen would be forced to speculate as to whether his or her conduct is prohibited by the statute. He next asserts that the statute lends itself too readily to arbitrary and discretionary police enforcement. Finally, Anderson maintains that the statute leaves judges judges and juries free to decide, without legally defined standards, what conduct is prohibited. In making his argument, appellant relies on Alaska cases which discuss the void-for-vagueness doctrine and on decisions in other jurisdictions which hold 'lewd and lascivious' statutes void for vagueness.

The...