Lovisi v. Slayton

• Decision Date: 31 August 1973
• Docket Number: Civ. A. No. 420-72-R.
• Citation: 363 F. Supp. 620
• Parties: Aldo Mario LOVISI et al. v. A. E. SLAYTON, Jr., Superintendent of the Virginia State Penitentiary, et al.
• Court: U.S. District Court — Eastern District of Virginia

363 F. Supp. 620

Aldo Mario LOVISI et al. v. A. E. SLAYTON, Jr., Superintendent of the Virginia State Penitentiary, et al.

Civ. A. No. 420-72-R.

United States District Court, E. D. Virginia, Richmond Division.

August 31, 1973.

Richard E. Crouch, ACLU, Washington, D. C., T. David Thelen, ACLU of Virginia, Richmond, Va., for plaintiffs.

Robert E. Shepherd, Jr., Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Aldo and Margaret Lovisi, inmates in the Virginia penal system at the time this action was commenced, petition the Court pursuant to 28 U.S.C. § 2254 for writs of habeas corpus holding invalid their convictions under Va.Code Ann. § 18.1-212 of the crime of sodomy. The Lovisis, husband and wife, were convicted and sentenced to a term of two years by the Corporation Court of the City of Virginia Beach of committing sodomy with one another. Margaret Lovisi was also convicted by that Court of committing sodomy with a third party, one Earl Romeo Dunn, for which she received the maximum sentence of three years' confinement.

The petition reveals that the statutory prerequisites required in order to receive relief under 28 U.S.C. § 2254 have been met in this case. Aldo Lovisi is in custody pursuant to the conviction which he now attacks, and Margaret Lovisi was incarcerated at the time the petition was brought. Her petition is not moot by virtue of the rule of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). State remedies have been exhausted by means of petitions for appropriate writs to the Virginia and United States Supreme Courts, challenging the convictions on the same constitutional grounds here argued. However, because the attack against the constitutionality of § 18.1-212 based on the first amendment's establishment of religion clause was not raised in the state courts, it will not be considered here.

The sole basis of petitioners' contentions is that the statute under which they were convicted, as applied to them, is unconstitutional. Va.Code Ann. § 18.1-212 provides the following:

Crimes against nature.a€”If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years.

If any person shall by force carnally know any male or female person by the anus or by or with the mouth he or she shall be guilty of a felony and shall be confined in the penitentiary not less than three nor more than ten years.

It is uncontested that the convictions here under attack involve consensual relations between adults. The petition does not, therefore, raise issues of forcible sodomy. Though counsel initially agreed that an evidentiary hearing was not required in order to decide the issue, the Court subsequently concluded that a limited hearing was required to determine two outstanding issues of fact. See memorandum of June 4, 1973. Said hearing was held July 27, 1973. The case has been fully briefed by both sides, oral argument was held, and the matter is now ripe for disposition. The Court finds the following facts from the record and the evidence presented before it.

Earl Romeo Dunn first became acquainted with the Lovisis in March of 1969, by means of a magazine titled "Swingers Life." Answering an ad in this magazine by which the Lovisis made known to the public that they wished "to meet people," Dunn arranged to travel to Virginia Beach from Washington, D. C., to meet with the Lovisis on three occasions. The third such occasion encompassed a trip by the three persons to New York with a return to Virginia Beach on March 30, 1969. The following day, on March 31, Aldo and Margaret Lovisi and Dunn engaged in a ménage a trois in the bedroom of the Lovisi's home. The record is undisputed that Margaret Lovisi performed fellatio on both her husband and Dunn. It is for these acts that Margaret was convicted, and it was for allowing her to perform fellatio on him that Aldo was convicted.

The record further reveals that polaroid photographs were taken of the acts in issue. There is sharp controversy, however, as to how the pictures were taken. Dunn testified in each of the trials that they were taken by a self-timing device on Aldo's camera. Margaret did not take the stand in either her own or her husband's sodomy trial, but in a separate prosecution of her husband for corrupting the morals of children, she also testified that the photographs were taken by a self-timing camera. See Lovisi v. Commonwealth, 212 Va. 848, 188 S.E.2d 206, 207 (1972). Carolyn and Eugenia Acree, Margaret Lovisi's daughters, however, testified in each trial that they were present in their parents' bedroom while the acts were being committed and that they had taken the pictures themselves. Both girls, aged 12 and 14 respectively at the time of the trials,¹ were able to describe explicitly the acts which they claimed to have seen and photographed. Both Dunn and Margaret Lovisi vehemently deny that the girls were present. At the plenary hearing of July 27, 1973, the Acree girls were not present, but Aldo Lovisi repeated his testimony that the girls did not view the acts in question and did not take the pictures.

On April 18, 1969, the Virginia Beach police were requested by the local welfare office to attend a meeting at the Alanton Elementary School between the two Acree girls, Margaret Lovisi, welfare officers and the school's principal. It appears that prior thereto the girls had brought a photograph to school which allegedly depicted one of them seated on a sofa beside an adult male. Both girl and man were nude. Although this picture was destroyed by a teacher, it precipitated the conference, at which time the Acree girls stated to a police officer that there were many more similar photographs at their home.

On the strength of this statement, the policeman executed a warrant and searched the Lovisi home. In the course of this search, he uncovered several hundred photographs, four hundred rolls of film, over a thousand paperback books, and numerous magazines, all of which were of an obscene nature. Among the photographs taken from a box in a gun cabinet was a picture of the two Lovisis and Dunn depicting Margaret Lovisi performing fellatio upon Dunn. This was introduced into evidence at Margaret's trial. Other pictures, depicting Margaret performing fellatio on her husband, were identified at Aldo's trial but were not placed into evidence.

Preliminarily, the Court notes the respondents' contention that "great weight" should be accorded the denial of certiorari by the United States Supreme Court in this case. This argument is patently without merit. The Supreme Court, time and again, has stated that the denial of certiorari should be given no weight, either as stare decisis or in federal habeas corpus proceedings on the same case. Chessman v. Teets, 354 U.S. 156, 164, n. 13, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Even the recent mention by a majority of the Court of dissents from the denial of certiorari, United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), drew sharp criticism from Mr. Justice Marshall. He, speaking of the Court's function in reference to cases it chooses to hear, noted that "reliance on denial of certiorari for any proposition impairs the vitality of the discretion we exercise in controlling the cases we hear." 409 U.S. at 461, 93 S.Ct. at 646. The respondents further argue that the Court should consider the petitioners' constitutional claim only if it determines that the state procedures afforded the petitioners did not give them an adequate opportunity to raise this constitutional ground as a defense. In other words, the respondents would have the Court bar itself from considering the constitutionality of the statute upon which the Lovisis were convicted if the state courts had an adequate opportunity to consider this claim. Such a contention, at best, might be argued to the Supreme Court as grounds for overruling Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). In light of the binding effect of these opinions on this Court, however, the respondents' position is not well taken.

The fundamental issue presented by this case is whether the Constitution of the United States prohibits the imposition of criminal sanctions against heterosexual relations between consenting adults involving oral-genital contact. The precise questions raised before the Court are whether the Constitution ever protects acts between adult partners not married to one another, and if the Constitution does provide protection for some acts involving oral-genital sexual contact, whether it protects the particular acts performed by the Lovisis. The Court is faced with the further question of whether, if the Lovisis' conduct was not constitutionally protected, they may attack the constitutionality of Virginia Code Annotated § 18.1-212 on the basis of the rights of third persons. For reasons which follow, it is not necessary for the Court to render an actual holding on the first two questions. It is, however, necessary for the Court to determine on what constitutional grounds, if any, such sexual acts might conceivably be protected in order to decide whether the conduct of these petitioners might arguably be protected. As will be seen, while the Court is of the opinion that the right to privacy inherent in the federal constitution may well extend to heterosexual relations involving oral-genital contact between consenting adults, the petitioners in this case, having voluntarily relinquished the privacy that would normally have surrounded their acts, are not themselves protected...