State v. Bateman

• Decision Date: 30 September 1975
• Docket Number: CA-CR,No. 1,1
• Citation: 540 P.2d 732,25 Ariz.App. 1
• Parties: STATE of Arizona, Appellant, v. Mearion Ray BATEMAN, Appellee. 888.
• Court: Arizona Court of Appeals

Page 732

540 P.2d 732

25 Ariz.App. 1

STATE of Arizona, Appellant, v. Mearion Ray BATEMAN, Appellee.

No. 1 CA-CR 888.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 30, 1975.

Rehearing Denied Nov. 5, 1975.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Asst. Atty. Gen., Phoenix, and Charles Preimsberg, Yavapai County Atty. by Richard A. Stewart, Deputy County Atty., Prescott, for appellant.

Charles Anthony Shaw, Prescott, for appellee.

OPINION

JACOBSON, Presiding Judge.

The constitutionality of Arizona's statutes prohibiting sodomy and lewd and lascivious acts as applied to married couples is brought under attack in this appeal.

On May 21, 1974, the defendant, Mearion Ray Bateman, was charged in a two- count information with committing anal intercourse upon his wife and forcing her to commit fellatio upon him. The defendant subsequently filed a motion to dismiss the information on the grounds that the statutes defining these crimes were unconstitutional since they did not allow a defense of consent. The motion to dismiss on constitutional grounds was taken under advisement and never expressly ruled upon.

The matter proceeded to trial before a jury on August 8, 1974. At the conclusion of the trial, the jury was instructed that:

'Consent is a defense in the infamous crime against nature (sodomy count) and to the crime of the committing of lewd and lascivious acts (fellatio count). Any evidence which reasonably tends to show that consent is relevant and material.'

Thus, the issue of whether the defendant's wife consented to the acts committed upon her was squarely presented to the jury. The jury returned verdicts of guilty as to both counts. We must assume by these verdicts that the jury found that the defendant's wife did not consent to the sexual acts performed by the defendant. The defendant does not question the sufficiency of the evidence to support such a finding of non-consent.

Following the jury's verdict, the defendant moved for a new trial, again renewing his motion to dismiss. On September 27, 1974, the trial court granted defendant's motion to dismiss, stating:

'It appearing to the court that the Arizona statutes on sodomy and lewdness violate the Arizona and U.S. Constitutions because they could violate the right to privacy, and further that this court's interpretation of the statutes to permit the defense of consent without the benefit of legislative or appellate court guidance was improper . . ..'

Both parties and this court interpret the trial court's order to mean that it was of the opinion that the Arizona statutes in question would be unconstitutional as applied to consenting married couples and that it could not supply the non-consent factor to make the statute constitutional. The trial court therefore dismissed the information. The State has appealed.

The State's position on appeal is interesting. The opening memorandum in this matter was filed by the Yavapai County Attorney's office rather than the attorney general. In that memorandum, the county attorney conceded that the statutes were unconstitutional if applied to consenting married couples, but argued that the trial court could properly interpret these statutes by supplying the non-consent element, thus rendering the statute constitutional. The defendant's answering memorandum likewise dealt with this consent issue, arguing that because of the separation of powers doctrine only the legislature could constitutionally write a valid statute making non-consenting acts as between husband and wife criminal--thus impliedly admitting that nonconsenting acts between marrieds could constitutionally be criminally prohibited.

The matter was orally argued before this court by Mr. William J. Schafer III, Chief Counsel of the Criminal Division of the Arizona Attorney General's office. At oral argument, Mr. Schafer specifically disavowed that portion of the County Attorney's opening memorandum conceding the unconstitutionality of these statutes as applied to consenting married couples and argued, with the leave of the court, that the statutes could be constitutionally applied between the defendant and his wife. Leave was granted to both the State and the defense to file supplemental memoranda on this issue.

The statutes in question, insofar as pertinent, are as follows:

A.R.S. § 13--651 (Supp.1973) provides:

'A person who commits the infamous crime against nature, with mankind or animal, shall be punished by imprisonment in the state prison for not less than five nor more than twenty years. . . .' A.R.S. § 13--652 (Supp.1973) provides:

'A person who willfully commits, in any unnatural manner, any lewd or lascivious act upon or with the body or any part or member thereof of a male or female person, with the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either of such persons, is guilty of a felony punishable by imprisonment for not less than one nor more than five years.'

A.R.S. § 13--651 prohibiting 'the infamous crime against nature' has been interpreted to mean a prohibition against sodomy (anal copulation) State v. Potts, 75 Ariz. 211, 254 P.2d 1023 (1953), and A.R.S. § 13--652 prohibiting 'lewd and lascivious acts' has been interpreted to mean, among other things a prohibition against fellatio and cunnilingus (oral copulation). State v. Superior Court, 78 Ariz. 367, 280 P.2d 691 (1955). Based upon these prior interpretations and the rationale of Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973), we do not find, at least initially, that these statutes are unconstitutionally vague.

We therefore reach the main issues raised on this appeal, that is, are A.R.S. §§ 13--651 and 652 ¹ unconstitutional as applied to a married couple and if unconstitutional can this court interpret these statutes to make them constitutional by adding the element of non-consent.

Any discussion of the constitutionality of a statute which purports to regulate sexual activities between marrieds, must first begin with an analysis of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Griswold dealt with the constitutionality of Connecticut statutes criminalizing the use of contraceptives by married couples and criminalizing the activities of those who aided and abetted in their use. Out of Griswold came the conceptual premise that there exists a constitutionally protected right 'of privacy surrounding the marriage relationship' (Douglas, J.) or a 'right of privacy in the marital relation.' (Goldberg, J., concurring). Within this 'fundamental' right of privacy, the majority of the Griswold court held that the state had no right to meddle without 'showing a subordinating interest which is compelling. The law must be shown 'necessary, and not merely rationally related, to the accomplishment of a permissible state policy'.' (Goldberg, J., concurring, 381 U.S. at 497, 85 S.Ct. at 1689).

However, the freedom from interference by the state with this right of privacy in the marriage relationship is not without limitation as to the 'State's proper regulation of sexual promiscuity or misconduct', as Justice Goldberg points out. Likewise, in this case there is no contention that the state could not constitutionally regulate forceful, non-consenting sexual behavior even between married couples.

It would thus appear that the right of privacy in the marriage relationship does not create an all embracing fortress impregnable to the thrusts of state regulation, but rather is descriptive of only certain types of marital conduct which is protected. Obviously, under Griswold, one type of marital conduct which is constitutionally protected is the decisional process of whether to bear children or not. The initial question in this case then becomes whether the right of marital privacy includes how a husband and wife privately conduct their sexual activity within the confines of the marriage bed. Several cases intimate that such conduct is constitutionally protected. See, Cotner v. Henry, 394 F.2d 873 (7th Cir. 1968); Buchanan v. Batchelor, 308 F.Supp. 729 (N.D.Tex.1970), vacated, 401 U.S. 989, 91 S.Ct. 1221, 28 L.Ed.2d 526 (1971); State v. Lair, 62 N.J. 388, 301 A.2d 748 (1973); Lovisi v. Slayton, 363 F.Supp. 620 (E.D.Va.1973); Commonwealth v. Balthazar, Mass., 318 N.E.2d 478 (1974). Of these cases only Cotner v. Henry, supra, and Lovisi v. Slayton, supra, involved married couples, and in Lovisi a third party was present, 'me nage a trois.' Moreover, Cotner reaches a conclusion that consent is a defense to marital sodomy without a judicial analysis of the problem of statutory construction.

Counsel has not cited to us, nor has our individual research disclosed, any case upholding, on constitutional grounds, the conviction of consenting married couples violating statutes such as those under discussion here. ² This is not surprising, however, for if the conduct is truly private and indeed consenting, who is to complain to bring the matter to the attention of the authorities? Moreover, if truly consenting and private, the parties are obviously accomplices in the act and corroboration requirements together with spousal testimonial immunity may deter even the most vigorous prosecutors. See, Pruett v. State, 463 S.W.2d 191 (Tex.Crim.App.1971); Hughes v. State, 14 Md.App. 497, 287 A.2d 299, cert. den., 409 U.S. 1025, 93 S.Ct. 469, 34 L.Ed.2d 317 (1972). In sum, prosecution of marrieds for these acts apparently does not occur with the frequency required to effectuate a broad appellate review.

We are thus left with the task of determining whether the right of marrieds to conduct such sexual activities in private is a 'fundamental' right under Griswold and thus cloaked with constitutional protection against state interference. In doing so we will follow the admonition of Justice Goldberg by, as judges, not being 'left at large to decide cases in light of (our) personal and...