Goodrow v. Perrin, 78-088

• Decision Date: 27 June 1979
• Docket Number: No. 78-088,78-088
• Citation: 119 N.H. 483,403 A.2d 864
• Parties: Albert GOODROW, Jr. v. Everett PERRIN, Warden, New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 864

403 A.2d 864

119 N.H. 483

Albert GOODROW, Jr. v. Everett PERRIN, Warden, New Hampshire State Prison.

No. 78-088.

Supreme Court of New Hampshire.

June 27, 1979.

Eleanor S. Krasnow, Manchester, by brief and orally, for plaintiff.

Thomas D. Rath, Atty. Gen. (Andrew R. Grainger, Asst. Atty. Gen., orally), for the State.

LAMPRON, Chief Justice.

This is a petition for a writ of habeas corpus. The plaintiff challenges the constitutionality of RSA 632-A:3 (Supp.1977) (statutory rape law). We reject the plaintiff's arguments and accordingly deny the petition.

The plaintiff, Albert Goodrow, Jr., was indicted on October 28, 1976, by the Sullivan County Grand Jury. The charge read that he "(d)id purposely have sexual relations with B . . . R . . ., a minor child of fourteen years (14 years) when Albert Goodrow, the defendant, was twenty three (23) years old." The plaintiff pleaded guilty to this charge and the plea was accepted by the Superior Court (Johnson, J.). Sentence of not less than three years nor more than six years was imposed and the plaintiff served his time in the New Hampshire State Prison. The plaintiff did not appeal his conviction and he was released on parole in October 1978. The plaintiff originally filed a petition for a writ of habeas corpus with the United States District Court for the District of New Hampshire. This petition was dismissed by the district court because plaintiff failed to exhaust State court remedies. The present petition for a writ of habeas corpus was then filed in this court.

The plaintiff in his writ facially challenges the constitutionality of RSA 632-A:3 (Supp.1977), which reads in pertinent part: "A person is guilty of a class B felony . . . if he engages in sexual penetration with a person who is thirteen years or older and under sixteen years." He puts forth two independent grounds for his assertion that the statute is unconstitutional. He argues that the statute, by imposing criminal liability without a culpable mind, infringes on his constitutionally protected privacy right to engage in consensual heterosexual intercourse; and, that the United States Constitution prohibits imposing criminal sanctions in the absence of culpability.

I. Right of Privacy.

By employing substantive due process analysis, the United States Supreme Court has recognized a fundamental right of personal privacy. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Moore v. City of East Cleveland, 431 U.S. 494, 502-03, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). See generally Henkin Privacy and Autonomy, 74 Colum.L.Rev. 1410 (1974). This protected zone of privacy broadly encompasses two different kinds of interests. "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). It is this latter aspect of privacy that is allegedly at issue in this case. "While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, procreation, contraception, family relationships and child rearing and education.' " Carey v. Population Services Inter., 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) (citations omitted). The Court in Carey stated that the zone of privacy encompasses the decision whether to bear or beget a child, and held that a State, lacking a compelling reason, may not deny adults access to contraceptives. Four Justices, with three other Justices concurring in the result, also concluded that minors have a similar right to purchase contraceptives. Id.

The plaintiff argues that these privacy decisions mandate a holding that private consensual heterosexual intercourse between adults is an activity that falls within the protected zone of privacy. This position is not without support. See State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977); State v. Pilcher, 242 N.W.2d 348 (Iowa 1976); See generally L. Tribe, American Constitutional Law § 15-13 (1978); Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 719-38 (1973). Nevertheless, in its 1976 October Term, the Supreme Court made it known that they had "not definitively answered the difficult question whether and to what extent the Constitution prohibits a state statute regulating (private consensual sexual) behavior among adults." Carey v. Population Services Inter., supra 431 U.S. at 688 n. 5, 97 S.Ct. at 2018 n. 5 (brackets in original). See also State v. Saunders, 75 N.J. 200, 222, 381 A.2d 333, 343 (1977) (Schreiber, J. concurring). Therefore, we do not hold that such a privacy right exists but rather, we will proceed for the purposes of this opinion, on the plaintiff's assumption that private consensual heterosexual intercourse between adults is a right that falls within the protected zone of privacy and is thus protected by the fourteenth amendment due process guarantees. See Carey v. Population Services Inter., supra 431 U.S. at 694 n. 17, 97 S.Ct. 2010 n. 17.

Even though a right may be considered "fundamental," it does not mean that it is absolute. It "must be considered against important state interests in (its) regulation." Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973). The State, by enacting RSA 632-A:3 (Supp.1977), has fixed the age at which a minor person may consent to sexual intercourse. In essence, this provision prohibits an adult, such as the plaintiff, from engaging in sexual intercourse with a person who is below the fixed age of consent. It is well established that the State "has an independent interest in the well-being of its youth." Ginsberg v. New York, 390 U.S. 629, 640, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968). One reason for this heightened interest is the vulnerability of children to harm. Teitelbaum & Ellis, The Liberty Interest of Children: Due Process Rights and Their Application, 12 Fam.L.Q. 153 (1978); See; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Another reason for the State's concern is that minors below a certain age are unable to make mature judgments about important matters. As Justice Stewart stated in his concurring opinion in Ginsberg v. New York, 390 U.S. 629, 649-50, 88 S.Ct. 1274, 1285-1286 (1968), "a State may permissibly determine that, at least in some precisely delineated areas, a child like someone in a captive audience is not possessed of . . . full capacity for individual choice."

For these reasons, the State has broader authority in proscribing children's privacy rights and in proscribing adults' privacy rights, insofar as they impinge upon a child's welfare, than it would if only adults were concerned. Carey v. Population Services Inter., 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010 n. 15 (1977); State v. Coil, 264 N.W.2d 293 (Iowa 1978). Cf. Dover News, Inc. v. City of Dover, 117 N.H. 1066, 1070-71, 381 A.2d 752, 755-56 (1977) (State has valid interest in protecting morals of minors in obscenity matters). Indeed, government regulation in cases involving minors may be permitted when the State can demonstrate a significant interest as opposed to the showing of a compelling interest needed to justify a restriction of the privacy rights of adults. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). This State has a significant interest in protecting the children from the sexual indiscretions of older teenagers and adults. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). Therefore, even assuming that the plaintiff, as an adult, has a protected privacy right to engage in consensual heterosexual intercourse with other adults, we hold that he has no privacy right to engage in sexual intercourse with a person whom the legislature has determined is unable to give consent. Id.; See Nelson v. Moriarty, 484 F.2d 1034, 1035-36 (1st Cir. 1973).

II. Lack of Requirement of Scienter in Statute.

Even though the plaintiff has no privacy right to engage in consensual heterosexual intercourse with a minor under sixteen, he nonetheless argues that RSA 632-A:3 (Supp.1977), because it lacks the requirement of scienter, "chills" his right to engage in consensual heterosexual intercourse with persons older than sixteen. In other words, he argues that adults will refrain from engaging in sexual activity with partners who can legally consent for fear that they will be committing a criminal act. This fear will force persons in the plaintiff's position to steer too wide a course at the margin where lawful activity verges on proscribed activity.

Plaintiff, relies on two Supreme Court cases, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) and Smith v. State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), to support his argument. In each case, the Court struck down a nonvague State law that regulated unprotected expression but incidentally discouraged protected first amendment expression. The Smith Court struck down a law that imposed strict liability for the seller of obscene books. Although obscene literature is not protected by the first amendment, the Court reasoned that the statute required the bookseller to Know the contents of his entire inventory, and thus the effect of the statute was to diminish the storeowner's stock, including protected unobscene literature. In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), the Supreme Court struck down a State loyalty oath statute because there was no requirement that a person Know that he was a member of a subversive organization. The Wieman Court concluded that the effect of this law was "to stifle the flow of democratic expression." 344 U.S. 183, 191, 73 S.Ct. 215, 218...