State v. Price

• Decision Date: 21 January 1976
• Docket Number: No. 58119,58119
• Citation: 237 N.W.2d 813
• Parties: STATE of Iowa, Appellant, v. Kattie Mae PRICE, Appellee.
• Court: Iowa Supreme Court

Page 813

237 N.W.2d 813

STATE of Iowa, Appellant, v. Kattie Mae PRICE, Appellee.

No. 58119.

Supreme Court of Iowa.

Jan. 21, 1976.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and David J. Dutton, County Atty., for appellant.

Walter W. Rothchild, Waterloo, for appellee.

Gordon E. Allen, Des Moines, for Iowa Civil Liberties Union, amicus curiae.

Heard before MOORE, C.J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

We reverse a trial court ruling which sustained defendant's challenge to the constitutionality of Iowa's statute banning prostitution, § 724.1, The Code.

A county attorney's information was filed charging defendant with prostitution, alleging that 'on or about the 27th day of September 1974, in the County of Black Hawk and State of Iowa, (she) did willfully, unlawfully and feloniously for the purpose of prostitution and lewdness, resort to, use and occupy a certain house for such purpose in the City of Waterloo, Iowa, and was there found leading a life of prostitution and lewdness * * * in violation of Section 724.1 of the 1973 Code of the State of Iowa'.

Section 724.1 provides:

'If any person, for the purpose of prostitution or lewdness, resorts to, uses, occupies, or inhabits any house of ill fame or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store, or other place, leading a life of prostitution or lewdness, such person shall be imprisoned in the penitentiary not more than five years.'

Defendant demurred to the information. As amended, the demurrer attacked the statute on grounds of vagueness, overbreadth, equal protection, and privacy. The trial court held the word 'lewdness' as used in the statute was unconstitutionally vague and, in effect, struck it from the statute. Then the court held the remainder of the statute denied equal protection to women and therefore sustained the demurrer. The State assigns the grounds of the ruling as error. Defendant contends the ruling was not only correct on those grounds but can also be sustained on the ground the statute is an unconstitutional invasion of her right of privacy. In an amicus curiae brief, the Iowa Civil Liberties Union supports defendant's position.

Two questions are presented in the present posture of this case. One is whether the trial court erred in sustaining the demurrer on equal protection grounds. The other is whether the demurrer should have been sustained on the privacy ground.

I. Equal protection. Defendant's equal protection argument rests upon the following syllogism:

Major premise. A statute which punishes only the female for offering her body to indiscriminate sexual intercourse with men denies women equal protection assured in the Fourteenth Amendment of the United States Constitution.

Minor premise. Section 724.1 punishes only females because the part of the statute which purports to punish men for the same conduct is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment.

Conclusion. Therefore § 724.1 is unconstitutional on equal protection grounds.

We do not find it necessary to examine defendant's major premise because we believe she is in no position to establish her minor premise. Her conclusion is thus unwarranted.

Defendant's equal protection argument depends upon a judicial declaration that the part of the statute which would punish men for the same conduct as it punishes women is void for vagueness. As written, the statute purports to treat men and women alike. It was so interpreted in State v. Rayburn, 170 Iowa 514, 153 N.W. 59 (1915). In that case a man was prosecuted and convicted under the statute for resorting to a house of ill fame for the purpose of lewdness. By demurrer and motions during and after trial the defendant unsuccessfully contended the term 'any person' as used in the statute referred only to females. When he pressed his contention on appeal, the State conceded that the word 'prostitution' in the statute included only the act of a woman. This was in apparent recognition of the fact that at common law prostitution was defined as the practice of a female offering her body to indiscriminate sexual intercourse with men. State v. Clark, 78 Iowa 492, 43 N.W. 273 (1889). Defendant asserted the word 'lewdness' was synonymous with prostitution so that males were not subject to prosecution under the statute. In rejecting this assertion, the court said:

'If 'prostitution' and 'lewdness' are synonymous, it would have been unnecessary (sic) to use but one of the words. There was presumably some reason for using both. The statute reads that, if 'any person,' for the purpose of prostitution or lewdness, resorts, etc. If a man and woman go together to or resort to a house of ill fame for the purpose of having sexual intercourse, her purpose would be for prostitution, his for lewdness. Or a man could go by himself for the purpose of having sexual intercourse, which would be lewdness under this statute and under definitions hereafter given. Or a man could resort to such a place, and be guilty of lewdness without sexual intercourse. Lewdness may not import criminal indulgence, but is generally used as indicating gross indecency with respect to the sexual relations. State v. Mitchell, 149 Iowa 362, 366, 128 N.W. 378. Sexual intercourse would, of course, constitute lewdness, but, as suggested, there may be lewdness without sexual intercourse at all, and the man, as well as the woman, may be guilty of it. We think the statute broad enough to cover situations such as those suggested. The purpose of the Legislature was to suppress such conduct and reach both parties. We think the statute fairly and reasonably bears that construction. The words 'any person' include all persons.' 170 Iowa at 517, 153 N.W. at 60.

Accord, State v. Gardner, 174 Iowa 748, 156 N.W. 747 (1916).

Under the Rayburn and Gardner holdings, it is clear the legislature sought to prohibit and make punishable on the same terms equivalent conduct of males and females. What would be prostitution for a female would be equally prohibited and punished as lewdness for a male. To the extent lewdness had a broader meaning than prostitution, it applied to male and female alike. Thus no discrimination based on sex appears on the face of the statute.

Such discrimination occurs only if the statute is judicially truncated by removal of all lewdness offenses on the ground of vagueness.

Statutory language offends due process under the Fourteenth Amendment on the ground of vagueness if it does not inform a person of ordinary intelligence what conduct it forbids. A penal statute must give a person of ordinary intelligence fair warning of what is prohibited, and, in order to avoid arbitrary and discriminatory enforcement, it must provide an explicit standard to law enforcement personnel. Grayned v. City of Rockford, 408 U.S. 104, 108--109, 92 S.Ct. 2294, 2298--2299, 33 L.Ed.2d 222, 227 (1972). Defendant contends the word 'lewdness' in § 724.1 is vague under this standard. She relies upon State v. Kueny, 215 N.W.2d 215, 219 (Iowa 1974), in which we held the word was unconstitutionally vague as employed in § 725.1, The Code, 1971. We later held the word to be vague as used in § 99.1, The Code. State ex rel. Faches v. N.D.D. Inc., 228 N.W.2d 191 (Iowa 1975). The State denies the word is vague as used in 724.1 and argues this court can put a limiting interpretation on it which will free it of constitutional defect.

Neither party has addressed the issue whether this defendant has standing to raise the vagueness question. However, this issue is in the case even though not addressed by the parties. It is in the case because it is in every case in which the constitutionality of a statute is attacked. The principle was explained by the United States Court in Broadrick v. Oklahoma, 413 U.S. 601, 610--611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973):

'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. (citations) A closely related principle is that constitutional rights are personal and may not be asserted vicariously. (citation) These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. (citation).'

See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

We have previously applied this principle of constitutional adjudication. State v. Willis, 218 N.W.2d 921, 923 (Iowa 1974) ('one to whom application of a statute is constitutional, with exceptions not involved here, lacks standing to attack the statute on the ground it might be susceptible of unconstitutional application to other persons or other situations'); Upper Mo. River Corp. v. Board of Rev. Woodbury Cty., 210 N.W.2d 828, 831 ('Generally, one attacking the constitutionality of a statute is not the champion of any rights except his own.'); Lee Enterprises, Inc. v. Iowa State Tax Com'n, 162 N.W.2d 730, 740 (Iowa 1968) ('As a general rule the constitutionality of a statute is to be considered in the light of the standing of the party who seeks to raise the question and of its particular application.').

Exceptions to this principle have been recognized. One exception is a situation where persons who are not parties to the suit 'stand to loss by its outcome and yet have no effective avenue of preserving their rights themselves.' Broadrick v. Oklahoma, supra, 413 U.S. at 611, 93 S.Ct. at 2915, 37 L.Ed.2d at 839. Another exception is a situation where First Amendment rights are implicated. Ibid. Neither of these exceptions is applicable...