Com. v. Balthazar

• Decision Date: 01 November 1974
• Parties: COMMONWEALTH v. Richard L. BALTHAZAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 478

318 N.E.2d 478

366 Mass. 298

COMMONWEALTH v. Richard L. BALTHAZAR.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 16, 1974.

Decided Nov. 1, 1974.

Malvine Nathanson, Boston (Bruce R. Bono, Boston, with her), for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and WILKINS, JJ.

WILKINS, Justice.

The defendant was convicted of committing an 'unnatural and lascivious act with another person.' See G.L. c. 272, § 35. He argues that the prohibition against committing an 'unnatural and lascivious act' is unconstitutionally vague. He further asserts that § 35 is unconstitutional because it impermissibly attempts to apply to conduct of consenting adults in private. He argues that the judge should have instructed the jury that jury that consent by the victim would bar a conviction under § 35. He also claims that, if § 35 is free from unconstitutional vagueness, the judge failed to give the jury an adequate description of what constitutes an unnatural and lascivious act. He finally argues that an improper remark in the prosecutor's closing argument to the jury was not adequately cured by the judge.

The victim testified that she was standing on the sidewalk at Exeter Street in Boston one day in July, 1972, when a light blue car pulled up. Because she thought the car was that of a friend, she entered it. She testified that when she discovered that the driver was not her friend, she tridd to leave the car, but the defendant pulled a knife and said, 'You're not going anywhere.' She testified that he then drove her to a secluded place south of Boston. He threatened her and ordered her to take off her blouse and pants. He then ordered her to commit an act of fellatio on him, threatening to kill her if she did not. She did as he ordered. He then ordered the victim 'to put . . . (her) tongue on his backside.' She complied. The victim testified that the defendant drove her back to Boston and let her go. Subsequently he was apprehended at a time and place where the victim said she had agreed to meet him on the following Saturday. The defendant did not testify. There were no other witnesses to the alleged crimes.

The jury found the defendant guilty of committing an unnatural and lascivious act but found him not guilty of assault with a dangerous weapon.

1. The defendant first argues that § 35 is void an its face as a violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. See Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950). He asserts that the words 'unnatural and lascivious' fail to state with sufficient particularity what conduct is made criminal. We agree that today these words, standing alone, present some question as to their meaning, even if they has a generally understood signification in 1887 when they were first expressed in the statute from which § 35 is derived. St.1887, c 436, § 1. In some other jurisdictions, statutes utilizing language of this general character have been struck down on due process grounds. See, e.g., State v. Sharpe, 1 Ohio App.2d 425, 205 N.E.2d 113 (1965) ('unnatural sex act'); Harris v. State, 457 P.2d 638 (Alaska, 1969) ('crime against nature'); Franklin v. State, 257 So.2d 271 (Fla.1971) ('abominable and detestable crime against nature'). ¹

However, judicial construction of an otherwise ambiguous statute may fulfil the constitutional requirement of specificity. Alegata v. Commonwealth, 353 Mass. 287, 303--304, 231 N.E.2d 201 (1967); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Furthermore, a sufficiently definite warning may be achieved by the common law meaning or statutory history of particular terms. See Commonwealth v. Brasher, 359 Mass. 550, 553, 270 N.E.2d 389 (1971), and cases cited. Constitutional adequacy is thus attained when the language proscribing certain conduct is 'measured by common understanding and practices.' Commonwealth v. Jarrett,359 Mass. 491, 496--497, 269 N.E.2d 657, 661 (1971).

In 1954, this court held that § 35 had sufficient clarity to be free from unconstitutional vagueness. Jaquith v. Commonwealth, 331 Mass. 439, 442, 120 N.E.2d 189 (1954). We said (at 442, 120 N.E.2d at 191) that the words 'an unnatural and lascivious act' are 'words of common usage and indicate with reasonable clarity the kind and character of conduct which the Legislature intended to prohibit and punish.' We stated that '(t)hese words have a well defined, well understood, and generally accepted meaning.' We then defined these words as signifying 'irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners.' We said (at 443, 120 N.E.2d at 192) that 'the common sense of the community, as well as the sense of decency, propriety, and morality which all respectable persons usually entertain, is sufficient to apply the statute to a situation and determine what particular kind of conduct offends.' We concluded (at 443, 120 N.E.2d at 192) that specification in the indictment beyond the language of the statute (see G.L. c. 277, § 45) 'would be an offence against common decency.'

We thus have limited ths scope of § 35 to sexual conduct which virtually all members of the community have regarded as offensive. This is, of course, a standard which may change with the passage of time. In the years since the Jaquith case, a new factor has appeared with the articulation of the constitutional right of an individual to be free from government regulation of certain sex-related activities. ² First Amendment rights of free speech now permit even a patently offensive portrayal of sexual conduct in a work which has some 'serious literary, artistic, political, or scientific value.' See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973).

In light of these changes and in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic as the Jaquith case suggested they were in 1954, we conclude that § 35 must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific sexual conduct, which is inherent in § 35, requires such an interpretation. We do not decide whether a statute which explicitly prohibits specific sexual conduct, even if consensual and private, would be constitutionally infirm.

As thus construed, § 35 clearly may apply to the nonconsensual conduct in which the defendant forced the victim to engage. In Commonwealth v. Deschamps, --- Mass.App. ---, --- ^a, 294 N.E.2d 426 (1972), the Appeals Court concluded that § 35 applied to a defendant who forced another to commit an act of fellatio and submit to an act of cunnilingus. Without undertaking to consider acts not involved in this case, we conclude that there is no unconstitutional vagueness in § 35 as applied to the defendant. The defendant may not properly rely on the possible unconstitutionality of § 35 as applied to others. Commonwealth v. LaBella, --- Mass. ---, --- ^b, 306 N.E.2d 813 (1974).

2. We turn next to the defendant's argument concerning the consent of the victim. What we have said already indicates that consensual conduct in private between adults in not prohibited by § 35. Assuming that the acts here in question occurred in private and that the victim was an adult, ³ on request or objection the judge should have submitted the issue of consent to the jury. However, the defendant did not file such a request, nor did he take an exception (or even raise any objection) to the judge's charge in this respect. although the matter of the statute's 'overbreadth' was raised in a motion to dismiss the indictment, the defendant did not press further the subject of consent, once the evidence was presented to the jury. The defendant may not object here for the first time to the absence of a charge on the subject of consent. Commonwealth v. LaBella, --- Mass. ---, --- (1974). ^{c, 4}, 306 N.E.2d 813.

3. The defendant contends that, if § 35 is not impermissibly vague, the judge failed to give the jury any standards for determining whether the acts described by the complaining witness were 'unnatural and lascivious.'

The judge charged the jury that if they believed the testimony of the victim, they would be warranted in finding that the defendant committed an unnatural and lascivious act upon her. The judge stated that he 'need not go further in this particular case to define the nature of such acts.' He added that '(i)f you believe that those acts did occur, then you would be warranted in finding that such acts were unnatural and lascivious acts within the meaning of the statute.'

We believe that this charge was at least as favorable to the defendant as was necessary. By compelling the victim to put her mouth on his genitals and on his buttocks or anus, the defendant sought sexual gratification in a manner which deviated from accepted conduct in the community. These nonconsensual acts are by general agreement both unnatural and lascivious. Thus, if the jury found that these acts did occur under threats by the defendant, a finding of guilt was indicated, and there was no occasion for the jury to exercise independent judgment as to whether the acts were 'unnatural and lascivious.'

4. The defendant asserts finally that the judge failed to cure prejudice arising from the prosecutor's improper argument to the jury that certain testimony of the victim had not been denied. The prosecutor's statement, which is set forth in the margin, ⁵ could be construed as a comment on the defendant's failure to testify and hence as a violation of rights protected by the Fifth Amendment to the...