Com. v. Wasson
| Decision Date | 24 September 1992 |
| Docket Number | No. 90-SC-558-TG,90-SC-558-TG |
| Citation | 842 S.W.2d 487 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Jeffrey WASSON, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Chris Gorman, Atty. Gen., David A. Smith, Kent T. Young, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellant.
Ernesto Scorsone, Scorsone & Ransdell, Pam Goldman, Dean W. Bucalos, Brown, Bucalos, Santana & Bratt, Lexington, for appellee.
Louis A. Ball, President, Ky. Commonwealth's Attys. Assoc., Newport, Michael E. Conliffe, President, Kentucky County Attys. Assoc., Louisville, for amici curiae Kentucky Commonwealth's Attys. Assoc. and Kentucky County Attys. Assoc.
Ronald D. Ray, John L. Weeks, Louisville, for amici curiae Citizens for Decency Through Law, etc.
George B. Bertram, Campbellsville, Dennis H. Staffelbach, Tupelo, MS, for amicus curiae Am. Family Assoc. Law Center.
Kenneth C. Plotnik, Louisville, Stanley M. Spracker, Joshua L. Sheinkman, Jin-Kyu Koh, Weil, Gotshal & Manges, Washington, DC, for amici curiae Am. Public Health Assoc., etc.
David W. Ogden, Cynthia Misicka, Jenner & Block, Washington, DC, Allen W. Holbrook, Owensboro, for amici curiae Am. Psychological Assoc., etc.
Ruth E. Harlow, William B. Rubenstein, New York City, David A. Friedman, Louisville, for amici curiae Am. Friends Service Comm., etc.
Frank E. Haddad, Jr., Stephen P. Durham, Louisville, William E. Johnson, Lexington, for amicus curiae Ky. Assoc. of Criminal Defense Lawyers.
Carolyn F. Shain, Eric J. Graninger, C. Frederick Jenkins, Louisville, for amici curiae James E. Andrews, etc.
Appellee, Jeffrey Wasson, is charged with having solicited an undercover Lexington policeman to engage in deviate sexual intercourse. KRS 510.100 punishes "deviate sexual intercourse with another person of the same sex" as a criminal offense, and specifies "consent of the other person shall not be a defense." Nor does it matter that the act is private and involves a caring relationship rather than a commercial one. It is classified as a Class A misdemeanor.
The appellee is actually charged under KRS 506.030, which covers "solicitation" to commit any criminal offense. If the offense solicited is a Class A misdemeanor, solicitation of the offense is punished as a Class B misdemeanor. KRS 506.030(2)(d). The issue here is whether KRS 510.100, which defines the underlying criminal offense, is constitutional.
The charges were brought in the Fayette District Court where appellee moved to dismiss the charge on grounds that a statute criminalizing deviate sexual intercourse between consenting adults of the same sex, even if the act is committed in the privacy of a home, violates the Kentucky Constitution as: (1) an invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment.
The Fayette District Judge held the statute violated appellee's right of privacy, and dismissed the charge. The Commonwealth appealed to Fayette Circuit Court which affirmed, and further held this statute infringed upon equal protection guarantees found in the Kentucky Constitution. Once more the Commonwealth appealed, and, because of the constitutional issues involved, this Court granted transfer.
Both courts below decided the issues solely on state constitutional law grounds, and our decision today, affirming the judgments of the lower courts, is likewise so limited. Federal constitutional protection under the Equal Protection Clause was not an issue reached in the lower courts and we need not address it. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) held federal constitutional protection of the right of privacy was not implicated in laws penalizing homosexual sodomy. We discuss Bowers in particular, and federal cases in general, not in the process of construing the United States Constitution or federal law, but only where their reasoning is relevant to discussing questions of state law.
A third issue presented at the trial level was whether KRS 510.100 violated state and federal constitutional protections against cruel punishment. This issue was decided against Wasson in District Court, but not addressed in the Circuit Court judgment. The issue is not preserved, and we decline to discuss it.
The brief statement of facts upon which the District Court rendered judgment is as follows:
Lexington police were conducting a downtown undercover operation. Their modus operandi was to drive to a certain parking area, in plain clothes with microphones on their persons, and try to engage in conversation with persons passing by to see whether they would be solicited for sexual contact. The taped conversation between the undercover officer and Wasson covered approximately 20-25 minutes, toward the end of which Wasson invited the officer to "come home" to his residence. The officer then prodded Wasson for details, and Wasson suggested sexual activities which violated KRS 510.100. There was no suggestion that sexual activity would occur anyplace other than in the privacy of Wasson's home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited.
Seven expert witnesses testified in support of Wasson's case: (1) a cultural anthropologist testified about the presence of homosexuals in every recorded human culture, including societies where they were rejected and those where they have been tolerated or even welcomed; (2) a Presbyterian minister discussed Biblical references, providing a modern interpretation that these references were not an indictment of homosexuals as such, but rather statements against aggression, inhospitality and uncaring relationships; (3) a social historian testified about the presence of homosexuals throughout the history of the United States, despite what was at times exceptionally strict punishment for homosexual acts; (4) a sociologist and sex researcher (a co-author of the Kinsey Report on homosexual behavior) testified that studies indicated " 'homosexuality' is just as deep-rooted as 'heterosexuality'," that it is not a choice and there is no "cure" for it, and that sexual acts prohibited to homosexuals by KRS 510.100, oral and anal sex, are practiced widely by heterosexuals; (5) a psychologist testified that homosexuality is no longer classified as a personality disorder by either the American Psychological Association or the American Psychiatric Association, and further, rather than being in and of themselves either harmful or pathological, the sexual acts outlawed by KRS 510.100 are a necessary adjunct to their sex life; (6) a therapist from a comprehensive care treatment center in Lexington, with fourteen years' experience counseling homosexual clients, testified that the statute criminalizing their sexual activities has an adverse impact on homosexuals and interferes with efforts to provide therapy to those who may need it; and (7) the Professor of Medicine at the University of Louisville, Chief of the Infectious Diseases section, testified at length about the origins and spread of AIDS, expressing the opinion that the statute in question offers no benefit in preventing the spread of the disease and can be a barrier to getting accurate medical histories, thus having an adverse effect on public health efforts.
The testimony from Wasson's expert witnesses is further substantiated by extensive citations to medical and social science literature and treatises supplied in Amicus Curiae Briefs filed by national and state associations of psychologists and clinical social workers, various national and state public health associations, and organizations covering a broad spectrum of religious denominations. 1
The Commonwealth, on the other hand, presented no witnesses and offers no scientific evidence or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants or to others; that, if not in all instances, at least where there is a Biblical and historical tradition supporting it, there are no limitations in the Kentucky Constitution on the power of the General Assembly to criminalize sexual activity these elected representatives deem immoral.
The Commonwealth maintains that the United States Supreme Court's decision in Bowers v. Hardwick, supra, is dispositive of the right to privacy issue; that the "Kentucky Constitution did not intend to confer any greater right to privacy than was afforded by the U.S. Constitution." Turning to the equal protection argument raised by a statute which criminalizes oral or anal intercourse between persons of the same sex, but not between persons of different sexes, which was not addressed in the Bowers case, the Commonwealth argues there is "a rational basis for making such a distinction." To support this argument the Commonwealth takes bits and pieces from the testimony of Wasson's expert witnesses out of context and disregards their overwhelming evidence to the contrary. The thrust of the argument advanced by the Commonwealth as a rational basis for criminalizing consensual intercourse between persons of the same sex, when the same acts between persons of the opposite sex are not punished, is that the level of moral indignation felt by the majority of society against the sexual preference of homosexuals justifies having their legislative representatives criminalize these sexual activities. The Commonwealth believes that homosexual intercourse is immoral, and that what is beyond the pale of majoritarian morality is beyond the limits of constitutional protection.
At the outset the subject is made difficult by a confusion of terms. KRS 510.100...
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