Schochet v. State

• Citation: 75 Md.App. 314,541 A.2d 183
• Decision Date: 01 September 1987
• Docket Number: No. 864,864
• Parties: , 56 USLW 2719 Steven Adam SCHOCHET v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 314

75 Md.App. 314

541 A.2d 183, 56 USLW 2719

Steven Adam SCHOCHET v. STATE of Maryland.

No. 864, Sept. Term, 1987.

Court of Special Appeals of Maryland.

May 19, 1988.

Joseph Peter Suntum (Boyland & Thompson, Bethesda, and Alan H. Murrell, Public Defender of Baltimore, on the brief), for appellant.

Stephen J. Shapiro, Kathleen M. Boucher and Whiteford, Taylor & Preston, Baltimore, for amicus curiae American Civil Liberties Union of Maryland, Inc.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County, and Robert L. Dean, Asst. State's Atty. for Montgomery County, on the brief), Rockville, for appellee.

Argued before MOYLAN, WILNER and GARRITY, JJ.

MOYLAN, Judge.

The appellant, Steven Adam Schochet, was convicted by a Montgomery County jury, presided over by Judge Irma S. Raker, of an Unnatural and Perverted Sexual Practice (fellatio) prohibited by Md. Ann. Code, Art. 27, § 554. Upon this appeal, he raises three contentions:

1. That § 554 is unconstitutional as applied to private and noncommercial sexual acts between consenting heterosexual adults 2. That Judge Raker impermissibly considered at sentencing both trial testimony and the victim impact statement concerning alleged offenses of which the appellant had been acquitted; and

3. That the imposition of a five-year sentence for this conviction constituted cruel and unusual punishment under the Eighth Amendment.

It is the first of these claims that commands our primary attention. We are called upon to determine the constitutionality, under the Federal Constitution, of a legislative act criminalizing certain forms of private, noncommercial sexual behavior between consenting, unmarried, heterosexual adults.

How This Issue Arose

It took an unusual configuration of jury verdicts for this issue to arise. Eight charges were filed against the appellant, based upon three alleged sexual episodes. For an act of vaginal intercourse, the appellant was charged with rape, both in the first and second degrees. For acts of fellatio and anal intercourse, respectively, the appellant was charged with two separate sexual offenses, each involving counts for both first and second degrees. All six of those charges alleged greater or lesser force, as appropriate, and the lack of consent on the part of the victim. For the anal intercourse and the fellatio, respectively, the appellant was charged with violations of Art. 27, §§ 553 and 554. Neither of these charges required proof of force or absence of consent.

According to the State's witness, all three sexual acts were forced upon her by the appellant. The appellant acknowledged that both vaginal intercourse and fellatio took place but claimed that those acts were consensual. He denied that the anal intercourse ever took place. The verdicts strongly suggest that the jury did not believe the alleged victim's testimony beyond a reasonable doubt. The appellant was acquitted of all six charges involving force. He was also acquitted of the count charging anal intercourse. He was convicted only of a violation of § 554, which charged an "unnatural and perverted sexual practice," in this case fellatio.

The Appellant's Raising of the Issue

The appellant timely raised the issue of the constitutionality of § 554 as applied to consenting, unmarried, heterosexual adults. Prior to trial, he moved to dismiss the count on the ground that the statute is unconstitutional as applied to a private consensual act between heterosexual adults. Judge Raker denied the motion. At the close of the case, the appellant requested a jury instruction that consent would be a valid defense to a charge under § 554. On the basis of our holding in Gooch v. State, 34 Md.App. 331, 367 A.2d 90 (1976), Judge Raker declined to give the requested instruction.

A Federal Constitutional Issue

The issue before us involves exclusively the Federal Constitution. The claim is that § 554 as applied to consenting adults violates the right to privacy, a recently articulated although unenumerated right under the Federal Constitution, which has been identified and developed in a series of Supreme Court decisions that we will discuss at some length. This is not an issue under the Maryland Constitution or Declaration of Rights. Neville v. State, 290 Md. 364, 372 n. 5, 430 A.2d 570 (1981); Doe v. Commander, Wheaton Police Dep't, 273 Md. 262, 329 A.2d 35 (1974); Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975).

Appellate Standing

When a challenge is raised that a statute is unconstitutional because of overbreadth, courts traditionally decline to allow a litigant to assert a claim vicariously for others as to whom the application of the statute might be unconstitutional if the litigant himself is not a member of that possibly protected class.

The constitutional issue is that of whether there is some substantive due process right of privacy shielding from state regulation 1) noncommercial, 2) consensual, 3) private, and 4) adult sexual activity. Wherever one of those qualifying criteria is shown to be lacking, courts have regularly avoided the larger question by holding that the claimant lacks standing to vindicate the constitutional rights of others more favorably situated. If a defendant is shown to have engaged in a sexual act for hire, he is disentitled to litigate what the constitutional right might be if the sexual act had been noncommercial. Cherry v. State, 18 Md.App. 252, 264-266, 306 A.2d 634 (1973). If a defendant is shown to have engaged in a sexual act by force, he is disentitled to litigate what the constitutional right might be if the sexual act had been consensual. Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974). If a defendant is shown to have engaged in a sexual act in a public or even quasi-public place, he is disentitled to litigate what the constitutional right might be if the sexual act had been in private. Neville v. State, 290 Md. 364, 430 A.2d 570 (1981). If a defendant is shown to have engaged in a sexual act with a minor, he is disentitled to litigate what the constitutional right might be if the sexual act had been between two adults. Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972).

These are but instances of the general principle discussed by the Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), which is applicable to claims that a statute is unconstitutional because of overbreadth. In addition to admonishing us that "application of the overbreadth doctrine in this manner is, manifestly, strong medicine," and that "it has been employed by the Court sparingly and only as a last resort," 413 U.S. at 613, 93 S.Ct. at 2916, the Court clearly stated the standing limitation:

"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court."

Id. at 610, 93 S.Ct. at 2915.

The appellant here was not disentitled to raise the issue in any regard. There is no suggestion that the act of fellatio in question was commercial, public, or involved a minor. In terms of its consensual quality, the evidence clearly permitted a finding that the act was consensual. The appellant is thereby entitled to a ruling on the constitutionality of the statute as applied to a private act between consenting, unmarried, heterosexual adults.

The Classes of Persons Possibly Entitled to the Constitutional Right

When none of the impediments to standing is present, the claimant moves up to the plateau of the constitutional merits. At that level, the claimant will fall into one of three classes that may have constitutional significance: part of 1) a homosexual couple (male or female); 2) an unmarried heterosexual couple; or 3) a married heterosexual couple, in a roughly ascending hierarchy of favor. When, approximately twenty years ago, this new constitutional issue began to push for resolution, there were four possibilities. It could have been that all three classes would be determined to enjoy a constitutional right of privacy in their sex lives. It could have been that none of the three classes would be constitutionally shielded from the anti-sodomy laws. It could be that only married heterosexuals will enjoy a constitutional right of privacy in their sex lives, with the other two classes constitutionally bereft. It could be that only homosexuals will suffer the sting of the anti-sodomy laws, with the other two classes constitutionally protected.

One ambiguity has now been removed. It is now clear beyond room for disagreement that the Supreme Court has announced that there is no constitutional right of privacy to engage in homosexual acts. Doe v. Commonwealth's Attorney for City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976); Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The issue in Bowers v. Hardwick was squarely posed:

"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate."

478 U.S. at ----, 106 S.Ct. at 2843, 92 L.Ed.2d at 145. The Supreme Court held flatly that the Constitution conferred no such right. "[R]espondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U.S. at ----, 106 S.Ct. at 2844, 92 L.Ed.2d at 146.

Our concern in this case, of course, is with unmarried heterosexuals. The case of married heterosexuals...