State v. Elliott

• Decision Date: 09 July 1975
• Docket Number: No. 1682,1682
• Citation: 539 P.2d 207,88 N.M. 187,1975 NMCA 87
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donald Ray ELLIOTT, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 207

539 P.2d 207

88 N.M. 187

STATE of New Mexico, Plaintiff-Appellee, v. Donald Ray ELLIOTT, Defendant-Appellant.

No. 1682.

Court of Appeals of New Mexico.

July 9, 1975.

Certiorari Granted Aug. 11, 1975.

[88 NM 189] Chester H. Walter, Chief Public Defender, Bruce L. Herr, Appellate Defender, Robert R. Rothstein, Asst. App. Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Morton A. Resnick, Bill Primm, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

SUTIN, Judge.

Defendant was convicted of sodomy, § 40A--9--6, and burglary, § 40A--16--3, N.M.S.A.1953 (2nd Repl. Vol. 6, 1972). He appeals. We reverse.

A. The sodomy statute is unconstitutional.

In State v. Trejo, 83 N.M. 511, 494 P.2d 173 (Ct.App.1972) (Sutin, J., dissenting), and State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (Ct.App.1973) (Sutin, J., dissenting), I stated my view that the sodomy statute, § 40A--9--6, is unconstitutional and void. Today, the majority of the Court so holds.

This statute reads:

Sodomy consists of a person intentionally taking into his or her mouth or anus the sexual organ of any other person or animal or intentionally placing his or her sexual organ in the mouth or anus of any other person or animal, or coitus with an animal. Any penetration, however slight, is sufficient to complete the crime of sodomy. Both parties may be principals.

Whoever commits sodomy is guilty of a third degree felony.

The sodomy statute is unconstitutional because the statutory language provides that consenting adults who commit the acts described therein are guilty of a crime. We hold that (1) this appeal provides a proper forum for this Court to decide this issue. (2) With respect to married persons, the statute violates the right of marital privacy guaranteed by the First and Ninth Amendments to the United States Constitution. (3) The Equal Protection Clause of the Fourteenth Amendment to the Constitution requires that the statute apply equally to married and unmarried persons. (4) The statute unconstitutionally invades the privacy of the home. (5) The police power of the state does not extend to sodomitic acts between consenting adults.

(1) This appeal provides a proper forum for this Court to decide the issue of the constitutionality of the sodomy statute.

(a) Mutual Consent

The record is ambiguous on the issue of mutual consent.

The defendant was charged with rape and sodomy. He was acquitted of rape and convicted of sodomy. The rape statute, § 40A--9--2, provides that the act be committed without the victim's consent. The sodomy statute does not. The prosecutrix testified that the alleged acts of sodomy and rape all took place in her bedroom on the same evening, in rapid succession. The jury's contrary verdicts as to rape and sodomy indicate that the jurors believed the acts did take place, but that they took place with the consent of the prosecutrix. Such consent would lead to a not guilty verdict, as to rape; however, it would lead to a guilty verdict as to sodomy.

The prosecutrix's testimony indicates that she consented to these acts. She believed the defendant was holding a knife; but she never saw the knife. She did not scream when he made advances to her. She did not try to fight him off, although she argued with him. The defendant had been at her house earlier that evening and night, for a party. She had driven with him to take some people home from the party. During her marriage, she had had intercourse with two men other than her husband and the defendant, one of them within a few days of the alleged crimes. She had once before been involved in similar charges (statutory rape) against another man.

From the prosecutrix's testimony and the jury's contrary verdicts as to rape and sodomy, the most reasonable inference is that the jury found the alleged sodomitic acts to have taken place with the consent of the prosecutrix. Therefore, defendant's appeal allows this Court to decide whether the sodomy statute invades the constitutional rights of consenting adults.

(b) Lack of Mutual Consent

Even if the prosecutrix did not consent to the alleged sodomitic acts, this appeal nonetheless provides a proper forum for this Court to decide whether the sodomy statute invades the constitutional rights of consenting adults.

In State v. Armstrong, supra, this Court held that the constitutionality of § 40A--9--6 could not be decided unless the parties involved are consenting adults. Today we overrule that holding. We hold that an appeal of a conviction under § 40A--9--6 allows this Court to decide the constitutionality of that section on its face, regardless of the presence or absence of consent to the allegedly unlawful acts.

This Court has the power to decide the constitutionality of the sodomy statute on its face without reference to the particular conduct of the litigant whose prosecution calls the statute's validity to the Court's attention. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

Our power to so rule is clear when the statute violates a First Amendment or other 'fundamental right.' United States v. Doe, 12 Cr.L. 2531 (D.C.Super.Ct.1973). The right to marital privacy and the right to privacy of the home which, we hold today, are violated by § 40A--9--6, are fundamental rights.

The right to marital privacy is a fundamental right, protected by the First and Ninth Amendments. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Opinion of the Court; Opinion of Goldberg, J., concurring). Since Griswold, the Supreme Court has held that the right to marital privacy, with respect to procreation, sexual practices and family relations, is guaranteed by the Fourth, Fifth, and Fourteenth Amendments, in addition to the First and Ninth Amendments. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It is a right that is "fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).' Roe v. Wade, supra, 410 U.S. at 152, 93 S.Ct. at 726, 35 L.Ed.2d at 176.

The right to privacy of the home is, likewise, a fundamental right. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1969) (Harlan, J., dissenting); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct 2628, 37 L.Ed.2d 446 (1973); Ravin v. State, 537 P.2d 494 (Alaska, 1975).

Further authority is provided by analogy to the rule on standing to challenge a statute's constitutionality. That rule is: A defendant cannot attack the statute on the ground that it may be unconstitutional as applied to third parties, if it is constitutional as applied to himself. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). This is a judicial rule of practice, which, although weighty, is not inviolable, as are principles ordained by the Constitution. Weighty countervailing policies give rise to exceptions to such rules of practice. There are four exceptions to the rule of judicial self-restraint in addressing the question of a statute's constitutionality. One of those exceptions arises in a case in which the litigation exceptions arises in a case in which the litigation rights of one not a party to the action, who has no effective way himself to preserve those rights. Id.

By analogy to the above exception, this Court has the power to decide, absent consent, the issue involved, if consenting adults have no effective way to prevent infringement of their rights by the sodomy statute.

There is no record in New Mexico of the prosecution of openly consenting adults under the sodomy statute. Because consenting adults are not, in practice, subject to prosecution for sodomy, they are denied a forum in which to assert their own rights. Griswold, supra; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The fact that consenting adults in New Mexico have not, in practice, been subject to prosecution for sodomy does not demonstrate that their rights are not violated by the sodomy statute. The threat of prosecution remains.

In the face of a rigid and narrow statute . . . no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Roe v. Wade, supra, 410 U.S. at 208, 93 S.Ct. at 755, 35 L.Ed.2d at 185 (Burger, C.J., concurring) (1973).

See, also, Poe v. Ullman, supra (Douglas J., dissenting). Furthermore, many citizens obey criminal statutes despite the prospect of lax enforcement. United States v. Doe, supra.

Since attack by consenting adults against infringement of their constitutional rights is impractical and unlikely, this Court can decide the constitutional question by analogy to the Raines exception to the rule of practice on standing to challenge a statute's constitutionality.

We conclude that this appeal provides a proper forum to decide whether the sodomy statute, on its face, invades the constitutional rights of consenting adults for any of the following alternative reasons: (1) This case involves consenting adults. (If this case does not involve consenting adults, reasons (2) to (4) apply.) (2) This Court has the power to decide the constitutionality of a statute on its face without regard to the conduct of the litigants. (3) The fundamental constitutional rights involved give this Court the power to rule upon the constitutionality of the statute. (4) A defendant can assert the rights of consenting adults who are unable to assert their own rights, even if the defendant is not a member of that group.

Our Brother Hendley believes that this Court should not decide the constitutionality of § 40A--9--6 when that issue was not raised or briefed by the litigants on appeal. In his dissent, he cites Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973). That case, however, does...