State v. Gray
| Decision Date | 02 October 1987 |
| Docket Number | No. C5-86-2047,C5-86-2047 |
| Citation | 413 N.W.2d 107 |
| Parties | STATE of Minnesota, City of Shorewood, Petitioners, Appellant, v. Richard Gordon GRAY, Jr., Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Persons do not have a fundamental right to engage in commercial sex; accordingly, the constitutionally protected right of privacy does not protect those who engage in commercial sex.
Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Glen Froberg, Shorewood City Atty., Minnetonka, for appellant.
Peter Thompson, Minneapolis, for respondent.
Elizabeth A. Hughes, Thomas W. Strahan, William J. Keppel, Thomas A. Pearson, Minneapolis, David W. Ogden, Jordan W. Lorence, Washington, D.C., for amicus curiae.
Heard, considered and decided by the court en banc.
On December 2, 1986, a Hennepin County trial court dismissed a complaint charging respondent Richard G. Gray, Jr., with sodomy in violation of Minn.Stat. Sec. 609.293, subd. 5 (1986). The complaint was dismissed on the ground that section 609.293, the sodomy statute, is unconstitutionally broad and infringes on its face and as applied to Gray upon the right of privacy guaranteed by the Minnesota Constitution. We accepted the state's petition for accelerated review of the trial court's order; we reverse and remand to the trial court for trial or other disposition.
In July 1986, Gray was charged with one count of sodomy in violation of section 609.293, subdivision 5. The complaint alleges that on May 16, 1986, upon the apprehension of a suspect, the complainant, in connection with the reported boat theft from Gray's residence, the police learned that the complainant, a 16-year-old boy, and Gray had engaged in three separate acts of sodomy during April and May 1986, and that on at least one occasion the complainant had been paid for the sodomous act; that all of the sodomous acts took place in the bedroom of Gray's residence; and that Gray in a signed voluntary statement admitted to having had sexual contact with the complainant on one occasion.
Prior to the filing of the complaint, both Gray and the complainant gave statements to the police. In Gray's statement, Gray stated that he met the complainant while driving in Minneapolis; that the complainant said he was 18 years old; that he saw the complainant a total of four times but had only one sexual contact with the complainant; that he never paid the complainant for sex, rather he "loaned" him money; and that he believed the complainant to be an adult.
The complainant gave the police a statement in mid-May, immediately following his apprehension in connection with the boat theft from Gray, and another in early June. The substance of the two statements is identical except that in the later statement the complainant changed his account of the dates of the sexual contacts and the amount of money paid to him by Gray. In his earlier statement, the complainant stated that the three sexual contacts between him and Gray took place in May 1985; in his later statement, the complainant stated that the sexual contacts took place in April and May of 1986. The complainant explained that the reason he originally said the contacts took place in 1985 was that he had been charged with prostitution in May 1985, and he did not want anyone to know he had engaged in prostitution after May 1985. With respect to the amount of money he was paid by Gray, in his earlier statement the complainant estimated that he received $125 from Gray on two occasions and $40 on a third occasion. In his later statement, the complainant stated that he initially received $40 from Gray and later received $180; the complainant explained that the misstatement was due to confusion caused by drinking.
Except for his account of the dates and the money, the complainant's two statements are substantially the same. The complainant stated that he was picked up by Gray near Loring Park; 1 that when he was picked up by Gray, Gray told him that he would pay for sex; that Gray asked how old he was, and he told Gray he was 18; 2 that he and Gray drove to Gray's house where, in the bedroom, Gray committed a sodomous act upon him; that he was paid by Gray for this incident; that he and Gray then exchanged phone numbers, and about one week later he called Gray, Gray picked him up at a store, he went with Gray back to Gray's home; that in the bedroom of Gray's home Gray committed a sodomous act upon him, and that again he was paid by Gray for this incident; and that he and Gray had a third sexual contact, initiated by Gray calling him, involving mutual acts of fellatio. In his statement, in response to questioning, the complainant stated that he considered his sexual relations with Gray to be acts of prostitution for the reason that "Gray offered me money for sex."
On September 24, 1986, Gray moved to dismiss the complaint on the ground that section 609.293, subdivision 5 is unconstitutional as violative of the constitutional right of privacy protected by both United States Constitution and the Minnesota Constitution. In his memorandum of law in support of the motion, Gray argued that the "criminalization of private, consensual sexual conduct is contrary to the Minnesota and United States Constitutions;" accordingly, the sodomy statute is unconstitutional.
On June 30, 1986, about three months before Gray moved to dismiss the complaint, the United States Supreme Court decided the case of Bowers v. Hardwick, --- U.S. ----, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), reh'g denied --- U.S. ----, 107 S.Ct. 29, 92 L.Ed.2d 779. In that case, Hardwick, an adult male, was found committing an act of sodomy with another adult male in the bedroom of Hardwick's home, and he was charged with violating the Georgia statute criminalizing sodomy. 3 After a preliminary hearing, the District Attorney's office decided not to present the matter to the grand jury unless further evidence developed.
Hardwick then filed suit in the federal district court, asking the court to declare the Georgia statute unconstitutional insofar as it criminalized consensual sodomy. Hardwick was joined in bringing the suit by John and Mary Doe. The Does, a married couple, alleged that they desired to engage in the prohibited activity in the privacy of their home, but that they had been "chilled and deterred" from doing so by the existence of the statute and by Hardwick's arrest.
With respect to Hardwick, the federal district court ruled that Hardwick did have standing to bring suit, but then dismissed the suit for failure to state a claim.
With respect to the Does, the federal district court held "that because they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute, they did not have proper standing to maintain the action." Hardwick, 106 S.Ct. at 2842, n. 2.
Hardwick and the Does then appealed the decision of the district court. The federal court of appeals affirmed the district court's dismissal of the Does' claim for the lack of standing, id. 106 S.Ct. at 2842, n. 2; however, the court reversed and remanded for trial with respect to Hardwick, holding, in the words of the Supreme Court, "that the Georgia statute violated [Hardwick's] fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment." Id. 106 S.Ct. at 2843. The Supreme Court granted certiorari, and in a 5-4 decision, 4 it reversed the court of appeals' decision. The Supreme Court did not address the holding that the Does lacked standing, due to the Does' failure to challenge that holding in the Court. Thus, "[t]he only claim properly before the Court, * * * [was] Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy." Id. 106 S.Ct. at 2842, n. 2.
The United States Supreme Court held that its prior cases have not "construed the Constitution to confer a right of privacy that extends to homosexual sodomy * * *." Id. 106 S.Ct. at 2843. After sketching the reach of its previous right of privacy cases, the Court stated:
Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and the homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
The Supreme Court's decision in Hardwick was, of course, dispositive of and wiped out Gray's argument that section 609.293, subdivision 5 violates the Federal Constitution. Thus, the Hennepin County trial court had before it only the claim that the sodomy statute violated the Minnesota Constitution. The trial court held that "Minn.Stat. Sec. 609.293, subd. (5) is unconstitutionally broad and infringes upon the right of privacy granted by the Minnesota Constitution on its face and as applied to [Gray]," and it dismissed the complaint. The state appealed and petitioned for accelerated review, and we granted its petition.
We begin by noting that while we have discussed the constitutionally protected right of privacy in numerous cases, we have never rooted that right in the Minnesota Constitution. See e.g., Minnesota State Board of Health v. City of Brainerd, 308 Minn. 24, 241 N.W.2d 624 (1976), appeal dismissed 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 63; Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976).
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