Dixon v. State

• Decision Date: 06 April 1971
• Docket Number: No. 869S177,869S177
• Parties: Phillip DIXON, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 84

268 N.E.2d 84

256 Ind. 266

Phillip DIXON, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 869S177.

Supreme Court of Indiana.

April 6, 1971.

Rehearing Denied May 20, 1971.

William C. Erbecker, James Manahan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

The appellant was charged by indictment in three counts: Count 1. Sodomy; Count 2. Rape; and Count 3. Aggravated Assault. Trial by court without a jury resulted in a finding of guilty as to Count 1. Upon the conviction of sodomy the appellant was sentenced to not less than two nor more than fourteen years in the Indiana State Prison and fined $100. Count 1 of the indictment under which the appellant was convicted reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that Phillip Dixon, Jr. on or about the 20th day of June, A.D.1968, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously commit an abominable and detestable crime against nature with mankind with one BEVERLY J. LEWIS, a human being, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

The statute under which the appellant stands convicted reads as follows:

Burns' Ind.Stat. (1956 Repl.), § 10--4221:

'Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one (21) years to commit masturbation or self-pollution, shall be deemed guilty of sodomy, and, on conviction, shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), to which may be added imprisonment in the state prison not less than two (2) years nor more than fourteen (14) years. (Acts 1905, ch. 169, § 473, p. 584.)'

The facts tending to support Count 1 of the indictment are as follows:

Appellant and the prosecuting witness met in a tavern in the city of Indianapolis. After spending some time together there, they proceeded to the prosecuting witness' home where after further conversation the prosecuting witness alleged the appellant attacked her, and after an act of sexual intercourse, committed the act of cunnilingus (placing of the mouth against the vulva).

The appellant argues four basic grounds for reversal which, in substance, are:

1. The evidence was insufficient to convict because the act between two consenting adults out of view of the public does not constitute a crime under the statute, and that the conviction would be void under the First and Fourteenth Amendments to the United States Constitution.

2. That the decision of the trial court is contrary to law because it was based on conduct not covered by the statute.

3. The decision of the trial court was void because the statute upon which it is based is void for vagueness under the Sixth Amendment to the United States Constitution and under Article 1, § 12 of the Constitution of Indiana; and

4. The decision of the trial court is void because the statute upon which it is based is void for lack of a rational basis under the due process clause of the Fourteenth Amendment to the United States Constitution.

All of these questions being interrelated, they will be dealt with simultaneously in this opinion.

Appellant relies heavily upon the case of Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. In the Griswold case the appellant Griswold is an executive director of the Planned Parenthood League of Connecticut. The appellant Buxton is a licensed physician and a professor in the Yale Medical School, who served as medical director for the League. It was the stated purpose of the League to give information, instruction and medical advice to married persons as to the means of preventing conception. A Connecticut statute made it a crime for any person to use any drug, medical article or instrument for the purpose of preventing conception. The Supreme Court of the United States ruled that the appellants had the right to raise the constitutional rights of married people with whom they had a professional relationship and decided the case upon the proposition that the appellants as accessories should have the standing to assert that the offense with which they stood charged with assisting was not and could not constitutionally be a crime. The court held the statute as it applied to married couples violated the various guarantees contained in the Bill of Rights against the violation of the right of privacy. In so holding the court stated:

'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.'

Appellant anticipates the distinction between his case and the Griswold case in that there was no marriage relationship involved between appellant and the prosecuting witness; however, he argues that the same principles should be applied, citing various legal and nonlegal authorities making various recommendations that the laws be modified in order that many acts now forbidden by statute might be performed in private between consenting persons. Typical among their many quotations is one taken from Donnelly, Goldstein and Schwartz Criminal Law where it is stated at page 142:

(It is recommended that) '* * * the criminal law be amended so as to exclude cosensual acts done in private by adult males.'

Appellant also gives an extensive quotation from the celebrated book, Sexual Behavior of the Human Female by Kinsey, Pomeroy, Martin, Gebhard from page 257, which observes, in substance, that in some groups as much as 46% of the females interviewed accepted oral contacts with the female genitalia and observes that mouth genital contacts are part of the precoital sex play of practically all mammals. Without arguing with the various authorities cited by the appellant, we hold that these arguments are not persuasive in his case. If we would assume for the sake of argument that the prosecuting witness did consent, appellant cites no ruling case nor are we able to find a case where consent of both participants is a defense to the crime charged. In fact the authorities we find hold that consent is not a defense in a sodomy prosecution. 81 C.J.S. Sodomy § 2, p. 372. We therefore hold that consent is not a defense in a prosecution for sodomy. We are equally unimpressed by the claim via Dr. Kinsey and others that the acts complained of in this case are widespread in acceptance. Though such might be a valid argument to make to the Indiana legislature in an attempt to modify the existing laws, it is hardly an argument upon which this Court can justify a judicial decision.

The Circuit Court of Appeals for the 7th Circuit recently ordered an Indiana resident released from custody of the warden of the Indiana State Reformatory on the ground that his incarceration under the Indiana sodomy statute was unconstitutional. In so doing the Circuit Court relied upon Griswold, supra, holding that acts committed between consenting husband and wife were immune from prosecution under the statute under the theory of invasion of right of privacy. Cotner v. Henry (7th Cir. 1968), 394 F.2d 873. However, as above pointed out, the case at bar does not come within the factual framework of the Cotner case.

Appellant maintains that the statute under which he stands convicted is void because it is vague and does not specifically describe the crime of which he stands convicted. Embarking on this premise, appellant attempts to convince this Court that it would be guilty of judicial legislation if it affirms his conviction, yet he ardently argues on the other hand we should judicially legislate that acts between consenting parties cannot constitute sodomy. We would point out that appellant's argument is far from new in this and many other jurisdictions. Courts have universally pointed out that the acts sought to be prevented by this and similar statutes are of such a nature that legislatures and courts are reluctant to engage in detailed descriptions of the many acts which the human being is capable of accomplishing which are so offensive as to be deemed an 'abominable and detestable crime against nature with mankind or beast.' This terminology has been used for generations in this and other jurisdictions and has been deemed to be understood as encompassing not only the act with which the appellant is charged, but many other acts as well. Confining ourselves to the cases decided under the statute in question in Indiana alone, we find that sodomy has been held, in addition to the acts specifically stated in the statute, to include the following:

Beastiality. Held to be committed when sexual desires are sought to be gratified by the use of a living creature other than man. Murray v. State (1957), 236 Ind. 688, 143 N.E.2d 290.

Carnal copulation per os or per anum. Glover v. State (1913), 179 Ind. 459, 101 N.E. 629, 45 L.R.A., N.S., 473.

Cunnilingus. The charge in the case at bar described above. Young v. State (1923), 194 Ind. 221, 141 N.E. 309.

The courts have held that the statute which encompasses the above acts is applicable to persons of both sexes, holding that the term 'mankind' includes women. Connell v. State (1939), 215 Ind. 318, 19 N.E.2d 267.

In each of the above cases the same general objections were raised as are raised by the appellant in this case. The reaction of the Court has been uniform throughout in finding that the language of the statute was adequate to support the charges. The language of the indictment in the case at bar is remarkably similar to the language in Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471, 2 Ind.Dec. 584. In that case,...