State v. House
| Decision Date | 28 March 1984 |
| Citation | 681 P.2d 173,68 Or.App. 360 |
| Parties | STATE of Oregon, Respondent, v. Scott Wayne HOUSE, Appellant. 82-0265; CA A 25766. . Submitted on Respondent's Petition for Reconsideration, |
| Court | Oregon Court of Appeals |
Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Stephen F. Peifer, Asst. Atty. Gen., for petition.
In State v. House, 66 Or.App. 953, 676 P.2d 892 (1984), we reversed defendant's conviction for engaging in "sexual conduct" in a "live public show." ORS 167.062(1). We held that ORS 167.062(1) is overbroad, that on its face it violates Article 1, section 8, of the Oregon Constitution, and that defendant's demurrer to the indictment should have been sustained.
ORS 167.062(1) provides:
"Sadomasochistic abuse" and "sexual conduct" are defined in separate definitional sections:
The indictment did not charge that defendant engaged in "human masturbation," "sexual intercourse," or "sadomasochistic abuse."
In its petition for reconsideration, the state argues that the portions of the statute that prohibit "sadomasochistic abuse," "human masturbation" and "sexual intercourse" are severable. 1 We allow the petition to address this issue.
In our earlier opinion we considered the portion of the statute that prohibits "any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification." We did not focus on the prohibitions of "sadomasochistic abuse," "human masturbation" or "sexual intercourse."
ORS 167.062(1), when read with the definitional sections, ORS 167.060(9) and (10), prohibits a person from knowingly engaging in four distinct forms of behavior in a live public show:
(1) "sadomasochistic abuse;"
(2) "human masturbation;"
(3) "sexual intercourse;" or
(4) "any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification."
We found that the fourth prohibition is overbroad. 2 The source of its constitutional infirmity is in ORS 167.060(10), the separate section defining "sexual conduct."
As we stated in State v. Cantwell, 66 Or.App. 848, 676 P.2d 353 (1984), although a statute may be overbroad and on its face may violate Article I, section 8, its invalid parts may ordinarily be severed from its remaining parts unless the parts are inseparably related. See also State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980), where the court had held that ORS 166.025(1)(c), a portion of the disorderly conduct statute, is overbroad and unconstitutional on its face, and violates Article I, section 8. In Cantwell we reviewed another portion, ORS 166.025(1)(a), of the same statute. The defendants there had argued that an entire statute is void if any part of a statute is, on its face, overbroad and violative of Article I, section 8, citing State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982). We disagreed and found that Robertson is distinguishable, because the coercion statute that Robertson considered is not severable. We held that ORS 166.025(1)(c) is severable, that Spencer did not invalidate the entire disorderly conduct statute and that ORS 166.025(a) is valid. 3
We see no reason why the principle of severability stated in Cantwell may not be applied here. The portions of ORS 167.062(1) that, when read with ORS 167.060(9) and (10), prohibit any person from engaging in "sadomasochistic abuse," "human masturbation" or "sexual intercourse" in a live public show may be severed from the portion that deals with "any touching" and, consistent with the legislative intent, remain in force. See ORS 174.040. 4 "Sadomasochistic abuse" is separately defined in ORS 167.060(9) and is not inseparably connected to or dependent upon any of the prohibitions of "sexual conduct." Moreover, the prohibitions of "human masturbation" and "sexual intercourse" are not inseparably connected to or dependent upon the prohibition of "any touching." Even without that latter distinct prohibition, the provisions of ORS 167.062(1) and the narrowed definition of "sexual conduct" in ORS 167.060(1) are still clear. Finally, we do not doubt that the legislature, even without the prohibition of "any touching," would have prohibited "sadomasochistic abuse," "human masturbation" or "sexual intercourse" in a live public show. Those prohibitions standing alone are complete.
We reiterate our holding that the portion of ORS 167.062(1) that, when read with ORS 167.060(10), makes it unlawful for any person knowingly to engage in a live public show in "any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification" is overbroad and violates Article I, section 8, of the Oregon Constitution and that the court erred in not sustaining the demurrer to the indictment. The prohibitions on "sadomasochistic abuse," "human masturbation" and "sexual intercourse" are severable, and we do not pass on them.
Reconsideration granted; former opinion modified; former opinion affirmed as modified.
1 Rossman, J., in his dissent to the original opinion, made this point.
2 In the original opinion we also stated:
"Accordingly, ORS 167.062 prohibits (1) human masturbation, sexual intercourse, or any touching in a live public show of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, (2) whether alone or between members of the same or opposite sex or between humans and animals (3) in an act of apparent sexual stimulation or gratification." 66 Or.App. at 956, 676 P.2d 353.
The statement should have read:
"Accordingly, ORS 167.062 prohibits (1) human masturbation or sexual intercourse in a live public show, and (2) any touching in a live public show of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification."
3 In State v. Cantwell, supra, 66 Or.App. at 851, 676 P.2d 353, we stated:
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