State v. Senters

• Decision Date: 24 June 2005
• Docket Number: No. S-03-945.,S-03-945.
• Citation: 699 N.W.2d 810,270 Neb. 19
• Parties: STATE of Nebraska, appellee, v. Todd D. SENTERS, appellant.
• Court: Nebraska Supreme Court

699 N.W.2d 810

270 Neb. 19

STATE of Nebraska, appellee, v. Todd D. SENTERS, appellant.

No. S-03-945.

Supreme Court of Nebraska.

June 24, 2005.

James Martin Davis, of Davis & Finley Law Offices, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown, Solicitor General, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The appellant, Todd D. Senters, a 28-year-old high school teacher, videotaped himself and a 17-year-old female student-girl friend having consensual sexual relations. The student consented to the videotaping, and according to Senters, he made the videotape solely for private purposes. Nebraska generally does not criminalize sexual relations between individuals who are 16 years old or older. See Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1995). But, under Neb.Rev.Stat. § 28-1463.03 (Reissue 1995) of the Child Pornography Prevention Act (the Act), it is unlawful for "a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." A child participant is a person under the age of 18. Neb.Rev.Stat. § 28-1463.02(1) (Reissue 1995). Thus, while the 17-year-old student could legally consent to having sexual relations with Senters, videotaping the act was illegal.

Senters argues that this supposed discrepancy violated his constitutional rights to privacy and equal protection under the law. He also argues that the statute did not provide sufficient notice as to who a child was. We disagree and affirm Senters' conviction for violating the Act.

BACKGROUND

Senters and the student began their relationship while he was teaching at an Omaha high school. While the student was visiting Senters' apartment, the two decided to videotape themselves having sexual relations. Senters kept the videotape in his room, and it is undisputed that he did not intend to disseminate it.

Senters' roommate, an employee at the high school where Senters taught, later found the videotape. The roommate notified school officials. Police were later notified, though it is unclear by whom.

The State charged Senters with making child pornography under § 28-1463.03(1). The court rejected Senters' arguments that the Act was unconstitutional and, after a bench trial, convicted him of violating § 28-1463.03(1). The court sentenced Senters to 2 years of probation.

ASSIGNMENT OF ERROR

Senters assigns that the court erred in failing to find that the Act is unconstitutional on its face or that, in the alternative, the Act was unconstitutional as applied to him.

STANDARD OF REVIEW

Whether a statute is constitutional is a question of law; accordingly, this court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004). A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).

ANALYSIS

Senters appears to make three arguments: The Act (1) violates his substantive due process right to sexual privacy, (2) violates his right to equal protection under the law, and (3) does not provide sufficient notice under the Act of who is a child.

SUBSTANTIVE DUE PROCESS

According to Senters, the Act, either on its face or as applied to him, offends the Due Process Clauses of both the federal and Nebraska Constitutions by infringing upon his right to sexual privacy. The Due Process Clause of the 14th Amendment contains a substantive component that provides at least some protection to a person's right of privacy. See, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (suggesting right to privacy rooted in penumbra of specific guarantees in Bill of Rights rather than Due Process Clause). Although Senters also relies on the Nebraska Constitution, we note that our constitution does not contain a right of privacy broader than that recognized by the federal Constitution. See Robotham v. State, 241 Neb. 379, 488 N.W.2d 533 (1992). In support of his right of sexual privacy argument, Senters relies on the U.S. Supreme Court's recent decision in Lawrence v. Texas, supra.

In Lawrence, the Court overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). In Bowers, the State of Georgia convicted a homosexual man of violating a Georgia statute banning sodomy. He claimed that the statute violated his right to privacy. The Court disagreed. It refused to read earlier precedents as standing for "the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription." 478 U.S. at 191,106 S.Ct. 2841. Instead, the Court defined the issue narrowly, asking whether there was a "fundamental right to engage in homosexual sodomy." Id. After reviewing the long history of laws banning sodomy, the Court concluded that the right to engage in homosexual sodomy was neither deeply rooted in our nation's history nor implicit in the concept of ordered liberty. Therefore, the Court held the right was not fundamental.

Because it had concluded that the right to engage in homosexual sodomy was not fundamental, the Court in Bowers subjected the Georgia statute to rational basis review. Under rational basis review, a law is constitutional as long as it bears some rational relationship to a legitimate state purpose. See Robotham v. State, supra. In contrast, when a right is fundamental, a law infringing upon it is constitutional only if the infringement is narrowly tailored to serve a compelling state interest. In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001). In Bowers, the Court determined that the Georgia statute passed rational basis review because it was rationally related to the legitimate state purpose of moral disapproval of homosexual sodomy. See Bowers v. Hardwick, supra.

The facts of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), were similar to those in Bowers. While investigating a reported weapons disturbance, police entered the defendant's house and found him engaged in an act of sodomy with another man. The State of Texas convicted him under a statute banning sodomy. The Court began by disagreeing with the manner in which Bowers had narrowly defined the liberty interest at stake as the right to engage in homosexual sodomy. The Court noted that while statutes banning sodomy "purport to do no more than prohibit a particular sexual act[,t]heir penalties and purposes... have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, in the most private of places, the home." Lawrence v. Texas, 539 U.S. at 567, 123 S.Ct. 2472. According to the Court, "[t]his, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." Id.

The Court went on to recognize "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." 539 U.S. at 572, 123 S.Ct. 2472. It then struck down the Texas statute, stating, "`It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578, 123 S.Ct. 2472 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).

The Lawrence decision has unleashed a controversy over its holding. Some have concluded that the Court recognized a fundamental right to sexual privacy. See Williams v. Attorney General of Ala., 378 F.3d 1232 (11th Cir.2004) (Barkett, J., dissenting). Others, however, have concluded that the Court did not recognize a new fundamental right. But even these courts are split over whether Lawrence applied traditional rational basis review or a modified, more stringent form of that test. Compare, Williams v. Attorney General of Ala., supra; U.S. v. Extreme Associates, Inc., 352 F.Supp.2d 578 (W.D.Pa.2005); Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005).

Regardless of what the Court intended to accomplish for cases that involve private sexual conduct between consenting adults, it cautioned:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.... The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.

(Emphasis supplied.) Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Relying on this language, courts considering right-of-privacy challenges to laws regulating sexual conduct have agreed that Lawrence is inapplicable if the conduct involves minors. See, U.S. v. Bach, 400 F.3d 622 (8th Cir.2005); U.S. v. Peterson, 294 F.Supp.2d 797 (D.S.C.2003); State v. Oakley, 605 S.E.2d 215 (N.C.App.2004). Cf. State v. Limon, 32 Kan.App.2d 369, 83 P.3d 229 (2004). Like these courts, we conclude that when a law regulates sexual conduct involving a minor, Lawrence is inapplicable.

Senters acknowledges the Court's cautionary statement that the holding in Lawrence does not extend to cases involving minors. But he argues the warning...