Ferguson v. People, 90SA497
| Decision Date | 03 February 1992 |
| Docket Number | No. 90SA497,90SA497 |
| Citation | 824 P.2d 803 |
| Parties | Robert E. FERGUSON, Defendant-Appellant, v. The PEOPLE of the State of Colorado, Plaintiff-Appellee. |
| Court | Colorado Supreme Court |
Elvin L. Gentry, P.C., Elvin L. Gentry, Colorado Springs, for defendant-appellant.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.
The question in this case is whether section 18-3-405.5, 8B C.R.S. (1988 Supp.), which proscribes as a class 4 felony the knowing infliction of sexual penetration by a psychotherapist on a client, is unconstitutionally overbroad in violation of the substantive due process rights of an accused, is violative of equal protection of the laws, or creates an unconstitutional presumption regarding a client's lack of capacity to consent and thereby relieves the prosecution of any burden of proof on the defendant's culpable mental state. The district court, in denying a motion for a judgment of acquittal following a jury verdict finding the defendant-psychotherapist guilty of four counts of aggravated sexual assault, upheld the constitutionality of the statutory proscription. We affirm the judgment of the district court. 1
The defendant, Robert E. Ferguson, was charged with nine counts of aggravated sexual assault in violation of section 18-3-405.5(1), 8B C.R.S. (1988 Supp.). The charges were based on alleged acts of sexual intercourse between the defendant and a client on various dates between October 4, 1988, and March 28, 1989. At the time of the offenses charged, section 18-3-405.5 provided, in relevant part, as follows:
(1)(a) Any actor who knowingly inflicts sexual penetration ... on a victim commits aggravated sexual assault on a client if:
(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or
(II) The actor is a psychotherapist and the victim is a client and the sexual penetration ... occurred by means of therapeutic deception.
(b) Aggravated sexual assault on a client is a class 4 felony.
* * * * * *
(3) For the purposes of subparagraph (I) of paragraph (a) of subsection (1) ... of this section, consent by the client to the sexual penetration ... shall not constitute a defense to such offense. 2
Effective July 1, 1989, subsequent to the offenses charged in this case, the General Assembly amended section 18-3-405.5(3) to delete the reference to subparagraph (1)(a)(I) and to provide as follows: "Consent by the client to the sexual penetration ... shall not constitute a defense to such offense." Ch. 148, sec. 42, § 18-3-405.5(3), 1989 Colo.Sess. Laws 820, 831.
The statutory proscription under consideration defines a psychotherapist as "any person who performs or purports to perform psychotherapy," whether or not such person is licensed or certified by the state to practice psychotherapy. § 18-3-405.5(4)(b), 8B C.R.S. (1988 Supp.). The term "psychotherapy" refers to "the treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate mental disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors which interfere with effective emotional, social, or intellectual functioning." § 18-3-405.5(4)(c), 8B C.R.S. (1988 Supp.). The term "therapeutic deception" is defined as "a representation by a psychotherapist that sexual ... penetration ... by the psychotherapist is consistent with or part of the client's treatment." § 18-3-405.5(4)(d), 8B C.R.S. (1988 Supp.).
The charges filed against the defendant were tried to a jury, which returned guilty verdicts on four counts and not guilty verdicts on the other five counts. Prior to sentencing, the defendant moved for a judgment of acquittal on the basis that section 18-3-405.5 violated due process of law and equal protection of the laws. The district court, after determining that no fundamental constitutional right was affected by the statutory proscription, concluded that section 18-3-405.5 was rationally related to the legitimate governmental interest of protecting psychotherapy clients, many of whom may have emotional or mental health problems for which they seek assistance from the psychotherapist. After denying the defendant's post-trial motion, the court sentenced the defendant to concurrent two-year terms on the four convictions. The defendant thereafter filed this appeal.
The defendant's contentions, as we understand them, may be summarized as follows: the criminal proscription against sexual assault on a client by a psychotherapist is constitutionally overbroad and, hence, violative of substantive due process rights guaranteed by the Fourteenth Amendment because it infringes on the fundamental privacy and associational rights of psychotherapists and clients to engage in a consensual act of sexual intercourse; the pre-1989 version of section 18-3-405.5(3) applicable to this case violates equal protection of the laws under the United States and Colorado Constitutions because it irrationally deprives psychotherapists of the consent defense when no such limitation is imposed on other health-care professionals and also because it eliminates the consent defense for psychotherapists who inflict sexual penetration on clients by means other than therapeutic deception while, at the same time, it preserves the consent defense for psychotherapists who inflict sexual penetration on clients by means of therapeutic deception; and the pre-1989 version of section 18-3-405.5(3) violates due process of law by creating an irrebuttable presumption that all psychotherapy clients lack the capacity to consent to sexual penetration, thereby relieving the prosecution of any burden of proof on a defendant's culpable mental state and creating a strict liability crime. 3
We first address the defendant's claim that section 18-3-405.5 infringes on the alleged constitutionally protected privacy and associational rights of both psychotherapists and clients to engage in consensual sexual intercourse and thus constitutes facially overbroad legislation in violation of the Due Process Clause of the Fourteenth Amendment. The defendant's claim, in our view, proceeds from the faulty premise that the statutory proscription somehow implicates fundamental constitutional rights.
We have acknowledged on more than one occasion that the Colorado Constitution vests the General Assembly with the power to define criminal conduct and to establish legal components of criminal responsibility, including the affirmative defenses to various crimes. E.g., People v. Low, 732 P.2d 622, 627 (Colo.1987); Hendershott v. People, 653 P.2d 385, 390 (Colo.1982). The General Assembly has seen fit to exercise this power by proscribing certain sexual behavior irrespective of the element of consent. See § 18-6-201, 8B C.R.S. (1986) (); § 18-6-301, 8B C.R.S. (1991 Supp.) (sexual relations between persons related within specified degrees of kinship proscribed as incest); § 18-7-201, 8B C.R.S. (1986) (); § 18-7-206, 8B C.R.S. (1986) ().
Although the power to define and punish unlawful sexual behavior is vested in the General Assembly, that power is subject to overriding constitutional norms. A criminal statute, for example, may be challenged as constitutionally overbroad if, although apparently designed to punish activities that are not constitutionally protected, it threatens the existence of fundamental constitutional rights, such as First Amendment freedoms, by encompassing those constitutionally protected activities within its sweep even though the expressly prohibited activities might have been properly punished under a more carefully drafted statute. See, e.g., Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 520-22, 92 S.Ct. 1103, 1105-06, 31 L.Ed.2d 408 (1972); People v. Becker, 759 P.2d 26, 29 (Colo.1988). Due to the fundamental character of the rights threatened by a constitutionally overbroad statute, a heightened level of scrutiny is applicable when a statutory proscription threatens the exercise of those rights. Under that heightened standard of review, a statutory proscription will be struck down unless the state can demonstrate that the statute is necessary to promote a compelling governmental interest. E.g., Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969); Regency Services Corp. v. Board of County Comm'rs of Adams County, 819 P.2d 1049, 1056 (Colo.1991); Becker, 759 P.2d at 29. Moreover, because the very existence of such a statutory proscription may cause others not before the court to refrain from exercising a fundamental constitutional right, expanded standing is accorded in overbreadth challenges in order to permit a party to assert not only the party's own constitutionally protected interests but also the constitutional interests of others. E.g., Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); Becker, 759 P.2d at 29. A statutory proscription is not facially overbroad, however, unless the overbreadth is "not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." People v. Batchelor, 800 P.2d 599, 601 (Colo.1990) (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918).
In the absence of a fundamental constitutional right, the applicable test for reviewing a substantive due-process challenge to a statute is the rational-basis standard...
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