Harris v. State

• Decision Date: 08 August 1969
• Docket Number: No. 958,958
• Citation: 457 P.2d 638
• Parties: Joseph Henry HARRIS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 638

457 P.2d 638

Joseph Henry HARRIS, Appellant, v. STATE of Alaska, Appellee.

No. 958.

Supreme Court of Alaska.

Aug. 8, 1969.

Roger W. DuBrock, of Christianson & DuBrock, Sitka, for appellant.

Charles Cranston, Asst. Atty. Gen., Harold W. Tobey, Dist. Atty. and Thomas J. Aron, III, Asst. Dist. Atty., Juneau, for appellee.

Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

OPINION

CONNOR, Justice.

Appellant was convicted of the 'crime against nature' ¹ by a verdict of the jury which tried his case.

He brings this appeal on the ground that the statute under which he was tried and convicted is cast in such vague terms that it is unconstitutional and void under the federal and state due process clauses. ² He appeals from an instruction to the jury. He also appeals a ruling by the trial court which limited a certain line of cross-examination of a witness and limited the introduction of evidence by appellant's counsel in an attempt to impeach the witness by a showing of bias.

Appellant did not challenge the indictment in the proceedings below. But if the statute under which appellant was indicted is unconstitutional, it follows that the indictment and judgment of conviction would be vitiated and we should reverse under the plain error rule. ³ Similarly, appellant did not object to the jury instruction on which he specifies error, but he argues that the plain error therein requires reversal.

The indictment charged that on August 17, 1967, at or near Juneau, Alaska, the appellant '* * * did wilfully, unlawfully and feloniously commit a crime against nature by forcibly inserting his penis into the rectum of (the victim) against the will of (the vicim), which is in violation of AS 11.40.120.'

At trial it was proved that appellant held the victim, a male adult of somewhat limited mentality who was intoxicated, on a bed in an apartment where a drinking party had been in progress, and forcibly inserted his penis into the victim's anus. One of appellant's cohorts assisted in the accomplishment of the act by holding and twisting the victim's feet so that he could not free himself from appellant's assaultive efforts. This was done in the presence of other persons who testified at trial.

It is apparent that the trial court considered 'the crime against nature' to be the equivalent of the term 'sodomy.' The instructions to the jury even use the terms interchangeably. ⁴

It is established that a criminal statute which is so vague and standardlessas to not give fair warning of the acts prohibited by it is a deprivation of due process of law under the 14th Amendment of the United States Constitution. In Lanzetta v. New Jersey, 306 U.S. 451, 452, 59 S.Ct. 618, 83 L.Ed. 888 (1939), the court struck down a statute which declared criminal '* * * (a)ny person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime * * *.' ⁵ In striking down the staute the court said:

'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' 306 U.S. 451, 453, 59 S.Ct. 619.

Among the underlying reasons for the void for vagueness doctrine is not merely the notion of fair warning but a legitimate concern that a statute too broad in reach may be used as an instrument of oppression by those entrusted with its enforcement. As pointed out in Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), it must not leave judges and juries free to decide in each case, without legally fixed standards, what conduct shall be deemed prohibited. We cannot allow criminality to depend only upon the moral sentiment or idiosyncracies of the tribunal before which a defendant is tried. Vague terms in a criminal statute, if permitted to stand, might be used to cover varieties of conduct not ordinarily regarded as criminal by vast portions of the public affected by it.

'The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid * * * may be as much of a trap for the innocent as the ancient laws of Caligula.' ⁶

Appellant points out that the term 'crime against nature' has never been construed authoritatively in Alaska, that it has been construed in other jurisdictions to either include or exclude a variety of physical acts, and that it is not possible, therefore, to know what the term means as a matter of American common law. He argues that the demonstrable imprecision of the term provides the very reason for the statute being void for vagueness. He urges that under the candor currently displayed in American life it should be possible to specify in plain terms what sexual conduct shall be deemed a criminal offense and what shall be permitted.

Where a statute makes use of the name of a crime, without further definition and without the context indicating otherwise, it is traditional to look to the common law definition of the crime to determine its meaning. ⁷

We are confronted then with the inquiry into whether the term 'crime against nature' has an ascertainable common law meaning. But even this determination is not entirely dispositive of appellant's case, as there are additional questions to be resolved.

The decisions in other states are in hopeless contradiction about the scope of the term 'crime against nature.' Some courts have limited it to anal copulation with mankind or beast, effected by means of the male penis. ⁸ Others have construed the term to include any act of bestial or unnatural copulation. ⁹ Some courts have held that acts of fellatio and cunnilingus are included; ¹⁰ other courts have excluded these acts. ¹¹

The main cleavage between the various courts is whether 'the crime against nature' was a common law term of limited meaning, referring only to anal penetration, or whether it comprehends more than the common law notion of sodomy, thereby allowing a broader interpretation to fulfill a presumed legislative intent. It has even been asserted that the term 'crime against nature' did not cover oral-genital activity in English law because such conduct was not known in England during the formative era of early common law. It is said that had such conduct existed, it would surely have been condemned by the courts in England, and this provides a reason for an expansive reading of the term 'crime against nature' in American law. ¹² Such reasoning exhibits an incredible naivete. Surely these forms of conduct are as old as the human race. No reason has been advanced to explain why people in medieval England were miraculously exempted from instinctual impulses common to the rest of mankind. ¹³

The confusion in American case law is compounded by the unwillingness of the court in many instances to discuss the factual situation with any meaningful precision. The subjects of 'sodomy' and 'crime against nature' are said by many authorities to be so loathsome that they should be discussed only in language which is enigmatic to the point of deliberate obscurantism. Many of the cases merely assert, without discussing any precedents, that certain acts have always been considered within the prohibitions of the statute. Even Blackstone is of little help on what was meant by the term in the Eighteenth Century or earlier. Rather than discuss the elements constituting the offense, he merely labels it 'the infamous crime against nature,' declares that it is against the express law of God, and states his reluctance

'to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to limitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; 'peccatum illud horribile, inter christianos non nominandum (that horrible crime not to be named among Christians). " ¹⁴

These were the sentiments of an earlier age. Perhaps there was then some common understanding of the types of conduct condemned, although even that proposition becomes doubtful when one surveys the amorphous rulings of American courts over the last century. In today's more secular era the sodomy statutes and other statutes regulating sexual conduct have come under heavy critical attack, part of it directed toward legislative change and part of it directed to the vagueness or unconstitutionality of the various statutes themselves. ¹⁵

In State v. Sharpe, 1 Ohio App.2d 425, 205 N.E.2d 113 (1965), the Ohio court was confronted with the term 'unnatural sexual act,' a term which can be considered a rough equivalent of the 'crime against nature.'

The court said:

'The sociological and biological range of sex acts is almost infinite, going from so-called Freudian impulses, alleged by some to exist in all human behavior, to the viewpoint that all sex acts which do not lead to the production of offspring are unnatural. Disregarding these extreme viewpoints, it is yet apparent that many sex acts which may be logically classified as unnatural have widespread acceptance and frequent use. By way of example: Certain types of birth control are obviously unnatural; also, the practice of artificial insemination, although rare and frequently criticized, would certainly not be intended to be a criminal act under this statute, albeit it is obviously unnatural. Various types of sex acts usefull in or even required for medical diagnostic practices are equally unnatural. Depending upon laws in existence in most states but varying distinctly between them, such things as intercourse within certain proscribed age limits, incest depending upon a varying degree of relationship, and, possibly in some state, even miscegenation, are considered both unlawful and...