Com. v. Sefranka

• Citation: 414 N.E.2d 602,382 Mass. 108
• Parties: COMMONWEALTH v. Edward J. SEFRANKA.
• Decision Date: 15 December 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 602

414 N.E.2d 602

382 Mass. 108

COMMONWEALTH v. Edward J. SEFRANKA.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Sept. 8, 1980.

Decided Dec. 15, 1980.

Stephen R. Wainwright, Brockton, for defendant.

Robert M. Payton, Asst. Dist. Atty., for the Commonwealth.

George H. Butcher, III, and Andrea L. Davis, Boston, for the Civil Liberties Union of Massachusetts, & others, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant Edward J. Sefranka was convicted in the Superior Court for the county of Plymouth for being a "lewd, wanton and lascivious person in speech or behavior" in violation of G.L. c. 272, § 53. ¹ He appeals on the ground that the words on which the conviction was based are protected by the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. The statute is also challenged as unconstitutionally vague. We reverse the conviction.

The facts are not in dispute. As detailed in the police report, which formed the statement of agreed facts both at trial and on appeal, three plainclothes police officers went in separate unmarked cars to a public rest area on Route 24. They did so after receiving "complaints" about the rest area; the nature of the complaints is not specified in the police report. When the police arrived, they saw several parked cars with male occupants. The police noted that the men would flash their parking lights at each other, whereupon one would get out of his car, approach the other car whose lights had been flashing, and get inside the other car; the two men would "disappear" for a few minutes. The police officers saw the defendant approach two cars, but there is no evidence of his having participated in any sexual activity while at the rest area, and the Commonwealth does not argue otherwise.

The police officers decided that one of them should pull into the line of cars that were flashing lights and "try (his) luck." A while later, the defendant pulled behind the unmarked cruiser and flashed his parking lights. After several minutes, the police officer flashed his lights back at the defendant. The defendant then approached the cruiser, conversed with the officer, and invited the officer to return with him to his home and engage in oral copulation. The officer responded that he did not want to leave the rest area and indicated that he preferred the sexual activity to take place at the rest area. Replying that it was not safe at the rest area, the defendant said, "Well, I guess I'll see you later," got into his parked car, and drove away. He was arrested a few minutes later and charged with being a disorderly person and a lewd, wanton, and lascivious person, both in violation of G.L. c. 272, § 53. He was convicted of the latter charge only, ² and appealed to the Appeals Court. The case was transferred to this court on our own motion.

We hold that the "lewd, wanton and lascivious persons" provision of c. 272, § 53, unless aided by appropriate judicial construction, is unconstitutionally vague. Under the construction we shall establish in this opinion, the provision prohibits only the solicitation or commission of a public sexual touching, in the presence of persons who may be offended by the act. As so construed, the provision is neither vague nor overbroad.

An essential principle of due process is that a statute may not proscribe conduct "in terms so vague that men of common intelligence must necessarily guess at its meaning." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Grayned v. Rockford, 408 U.S. 104, 108 n.3, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). In addition to its failure to give fair warning, a vague statute offends by its lack of reasonably clear guidelines for law enforcement and its consequent encouragement of arbitrary and erratic arrests and prosecutions. Papachristou v. Jacksonville, 405 U.S. 156, 162, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d 110 (1972) (striking down as "plainly unconstitutional" Jacksonville's equivalent of § 53, before the Supreme Court on vagrancy provisions); Grayned v. Rockford, supra, 408 U.S. at 108-109, 92 S.Ct. at 2298-2299. Further, when a statute is capable of affecting First Amendment interests, as is true of § 53's punishment of spoken words, the vagueness doctrine demands even greater precision that in other contexts. Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d (1974). Grayned v. Rockford, supra at 109 and n.5, 92 S.Ct. at 2299 (noting that "a precise statute ... assures us that the legislature has focused on the First Amendment interests and determined that other governmental policies compel regulation.")

On the other hand, a law is not vague if its meaning is ascertainable by reference to similar or related statutes, or if the questioned terms have a commonly understood meaning. See Commonwealth v. King, 374 Mass. 5, 12-13, 372 N.E.2d 196 (1977); Commonwealth v. Jarrett, 359 Mass. 491, 496-497, 269 N.E.2d 657 (1971). Further, even a vague statute may be made constitutionally definite by giving it a reasonable construction. See, e. g., Commonwealth v. A Juvenile, 368 Mass. 580, 595-598, 334 N.E.2d 617 (1975); Alegata v. Commonwealth, 353 Mass. 287, 303-304, 231 N.E.2d 201 (1967).

Having in mind the above principles, we turn first to the language of the challenged provision punishing "lewd, wanton and lascivious persons in speech or behavior." This language, standing alone, fails to inform a person of ordinary intelligence what conduct is proscribed, as there is no commonly accepted understanding of the quoted terms. Cf. Commonwealth v. King, 374 Mass. 5, 12, 372 N.E.2d 196 (1974) ("prostitute" conveys a specific, commonly understood meaning). In ordinary usage, terms such as "lewd" and "wanton" "do not imply a definite and specific referent, but apply broadly to conduct which the speaker considers beyond the bounds of propriety." Pryor v. Municipal Court for the Los Angeles Judicial Dist., 25 Cal.3d 238, 246-247, 158 Cal.Rptr. 330, 599 P.2d 636 (1979) (attempting to define "lewd or dissolute conduct"). ³ See State v. Kueny, 215 N.W.2d 215, 218 (Iowa 1974) (noting such terms are effectively meaningless today and unacceptable in criminal statutes absent an attendant definition of the specific conduct proscribed). ⁴

In our search for a clear meaning of the challenged provision, we next examine its history and its function in light of other provisions of § 53. "Lewd, wanton and lascivious" persons, along with the "idle" and the "disorderly," have been punishable in this Commonwealth since at least 1699. See Commonwealth v. Templeman, --- Mass. ---, --- ^a, 381 N.E.2d 1300 (1978); Commonwealth v. Diamond, 248 Mass. 511, 514-515, 143 N.E. 503 (1924). After adoption of the Massachusetts Constitution, the early provincial laws punishing the lewd, idle and disorderly were gathered together into St.1787, c. 54, entitled, "An Act for suppressing and punishing of rogues, vagabonds, common beggars, and other idle, disorderly and lewd persons." Id. From its inception, the statute was aimed at punishing these people for their status. See Commonwealth v. Diamond, supra at 516, 143 N.E. 503. The gravamen of the various offenses was "being a person of the character and behavior described," Commonwealth v. Parker, 4 Allen 313, 314 (1862), rather than "doing a certain overt act," Commonwealth v. O'Brien, 179 Mass. 533, 534, 61 N.E. 213 (1901). Legislative revisions since 1943 have struck from § 53 provisions punishing "rogues," "vagabonds," and "common drunkards," and in 1959 "prostitution" was added to the statute as a separate offense. See Alegata v. Commonwealth, 353 Mass. 287, 303, 231 N.E.2d 201 (1967).

Most of the provisions in § 53 have been attacked for vagueness. See Commonwealth v. Templeman, --- Mass. ---, --- - --- ^b, 381 N.E.2d 1300 (1978), for a complete list of cases. This court has saved many of the challenged provisions by examining statutory and case law concerning each provision to determine with specificity the elements of the charged crime. See, e. g., Commonwealth v. King, 374 Mass. 5, 12-13, 372 N.E.2d 196 (1977); Commonwealth v. A Juvenile, 368 Mass. 580, 596-597, 334 N.E.2d 617 (1975); Commonwealth v. Brasher, 359 Mass. 550, 555, 270 N.E.2d 389 (1971).

The cases construing the "lewd, wanton and lascivious persons" provision, however, provide no greater degree of specificity than do the terms of the provision standing alone. Before the 1978 case of Commonwealth v. Templeman, --- Mass. ---, --- ^c, 381 N.E.2d 1300 (1978), this court had dealt with charged violations of the provision in only two cases, neither of which spelled out the elements necessary to sustain a conviction or specified the exact nature of the criminal speech or conduct engaged in by the defendant. Commonwealth v. Parker, 4 Allen 313 (1862). Commonwealth v. O'Brien, 179 Mass. 533, 61 N.E. 213 (1901). Apparently, before the separate offense of "prostitution" was added to § 53, prostitutes were punishable as lewd, wanton and lascivious persons. See Commonwealth v. King, 374 Mass. 5, 11-12, 372 N.E.2d 196 (1977); Commonwealth v. Diamond, 248 Mass. 511, 512, 517, 143 N.E. 503 (1924). In King, this court noted that the Legislature failed to define the lewd, wanton and lascivious conduct it reclassified in 1959 as prostitution. 374 Mass. at 12, 372 N.E.2d 196. Nor did the Legislature define what lewd, wanton and lascivious conduct, if any, it declined to reclassify as prostitution.

In Commonwealth v. Templeman, supra, we limited the reach of the "lewd, wanton and lascivious persons" provision in certain material respects. We said that the provision can be applied only to public, not private, conduct. Id. at --- ^d, 381 N.E.2d 1300. This conclusion was in line with our reasoning in Commonwealth v. Balthazar, 366 Mass. 298,...