State v. Thomas

• Decision Date: 19 January 2005
• Docket Number: No. 2004-KA-0559.,2004-KA-0559.
• Citation: 891 So.2d 1233
• Parties: STATE of Louisiana v. Tina THOMAS.
• Court: Louisiana Supreme Court

891 So.2d 1233

STATE of Louisiana v. Tina THOMAS.

No. 2004-KA-0559.

Supreme Court of Louisiana.

January 19, 2005.

Charles C. Foti, Jr., Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Kia M. Habisreitinger, Assistant District Attorneys, for applicant.

Ferdinand J. Kleppner, for respondent.

WEIMER, Justice.

In this matter we must determine whether the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), has rendered Louisiana's "Crime against nature" statute unconstitutional as it applies to a person who solicits another to engage in "unnatural carnal copulation for compensation." Finding that nothing in Lawrence, the United States Constitution, the Louisiana Constitution, or this state's jurisprudence supports the trial court's grant of a motion to quash on the ground that LSA-R.S. 14:89(A)(2) is unconstitutional as applied to this particular charge against this particular defendant, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

By bill of information, the State charged Tina Thomas with soliciting an undercover officer to engage in "unnatural oral copulation for compensation" in violation of LSA-R.S. 14:89, based on events that occurred on April 10, 1995. Defendant failed to appear for several court settings, but on May 22, 2003, she appeared and pled not guilty.

On June 9, 2003, defendant filed a motion to quash, urging that the statute unconstitutionally violates the right to privacy under La. Const. art. I § 5 and that the statute violates the due process clauses of the state and federal constitutions in that it prohibits "unnatural" carnal copulation, but fails to define what constitutes unnatural carnal copulation anywhere in the law and is therefore void for vagueness. On July 1, 2003, defendant filed a supplemental memorandum in support of her motion to quash, citing Lawrence, supra.

The trial court held a hearing on the motion to quash, at which the parties argued the constitutionality of the statutory provision. After taking the matter under advisement, the trial court orally granted defendant's motion to quash.¹ Subsequently, a written judgment and reasons for judgment were issued on January 15, 2004. The trial court concluded its reasons for judgment as follows:

The Lawrence court, in discussing a homosexual's rights, stated that homosexuals are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. [Citation omitted.]

The same rationale must apply to all persons in deciding their sexual activities and preferences providing the relationship involves consenting adults.

The case at bar does not involve a child or a person incapable of consent. It involves a prostitute offering to engage in oral copulation for money. Should that prostitute have offered vaginal intercourse she would have been prosecuted for prostitution, a misdemeanor, rather than a crime against nature, which is a felony. The statute is enforced in a discriminatory manner and also impedes a liberty specifically protected by the Due Process Clauses of the 5th Amendment and the 14th Amendment. The statute is, therefore, unconstitutional and the Motion to Quash the Bill of Information is granted.

The State perfected this appeal and argues that the trial court erred by granting defendant's motion to quash based on the decision and rationale of Lawrence, supra. We agree.

DISCUSSION

As previously stated, this matter is before us on appeal because the trial court, in granting the defendant's motion to quash, held LSA-R.S. 14:89 unconstitutional. See La. Const. art. V, § 5(D).² It is well established that statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. State v. Brenan, 99-2291, p. 3 (La.5/16/00), 772 So.2d 64, 67. These principles guide our analysis of the defendant's challenge to the constitutionality of LSA-R.S. 14:89(A)(2).

In Lawrence, the United States Supreme Court declared the anti-sodomy law of the State of Texas, which criminalized sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violated the defendants' constitutional rights. Events leading up to the charge commenced when Houston police were dispatched to a private residence on a report of a weapons disturbance. They entered the apartment where Lawrence resided and observed Lawrence and another man, both adults, engaging in a consensual sexual act.

Both men were arrested and charged with "deviate sexual intercourse." After the trial court rejected their constitutional challenges to the statute, the defendants entered pleas of nolo contendere. The Texas appellate court, sitting en banc, rejected their constitutional claims. The Supreme Court reversed the district court and the Texas appellate court. Lawrence, 539 U.S. at 579, 123 S.Ct. at 2484.

The Supreme Court majority recognized "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Lawrence, 539 U.S. at 572, 123 S.Ct. at 2480. Accordingly, the majority decision was based on the liberty interest found in the substantive component of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See, Lawrence, 539 U.S. at 564, 123 S.Ct. at 2476. However, as the dissent points out, the majority stopped short of declaring "that homosexual sodomy is a `fundamental right' under the Due Process Clause." Lawrence, 539 U.S. at 586, 123 S.Ct. at 2488 (Scalia, with whom the Chief Justice Rehnquist and Justice Thomas join, dissenting).³

Significantly, the majority cautioned against extension of its holding beyond the "realm of personal liberty which the government may not enter." Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484. The opinion states: "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." (Emphasis supplied.) Id.

Nevertheless, in the instant case, the trial court applied the Lawrence rationale to this 1995 charge against a female prostitute who allegedly solicited a male undercover agent to engage in unnatural oral copulation for compensation, and declared LSA-R.S. 14:89 unconstitutional. The trial court's reliance on Lawrence is misplaced for several reasons.

First, the majority opinion in Lawrence specifically states the court's decision does not disturb state statutes prohibiting public sexual conduct or prostitution. Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484. Part V of the Louisiana Criminal Code is entitled "OFFENSES AFFECTING THE PUBLIC MORALS." Subpart A of Part V is entitled "OFFENSES AFFECTING SEXUAL IMMORALITY" and consists of four parts, two of which are pertinent to this discussion: "2. Offenses Concerning Prostitution" (LSA-R.S.14:82-86) and "4. Crime Against Nature" (LSA-R.S.14:89-89.1).

Louisiana Revised Statutes 14:82 provides, in pertinent part:

A. Prostitution is:

(1) The practice by a person of indiscriminate sexual intercourse with others for compensation.

(2) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.

Louisiana Revised Statutes 14:89 provides, in pertinent part:

A. Crime against nature is:

(1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41 [rape], 14:42 [aggravated rape], 14:42.1 [forcible rape], or 14:43 [simple rape]. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.

The defendant in the instant case was charged with a crime against nature because she allegedly solicited an undercover police officer to engage in unnatural carnal copulation for compensation. Had she solicited the police officer to engage in sexual intercourse for compensation she could have been charged with prostitution. It would be absurd to interpret the Lawrence opinion as specifically finding no constitutional bar to a prosecution for prostitution by solicitation, but finding a prosecution for crime against nature constitutionally barred when it is committed by solicitation.

Second, through LSA-R.S. 14:89, the legislature has proscribed two types of conduct, each of which constitutes a crime against nature, and those two proscriptions are severable. In other words, even if LSA-R.S. 14:89(A)(1) were to be declared unconstitutional on its face or as applied in a given case, prosecution under LSA-R.S. 14:89(A)(2) could proceed without violating any constitutional rights.

More than a decade ago, in State v. Baxley, 93-2159 (La.2/28/94), 633 So.2d 142, this court held that LSA-R.S. 14:89(A)(1), which punishes engaging in unnatural carnal copulation, is a separate crime from the act proscribed in LSA-R.S. 14:89(A)(2), which punishes solicitation of another with the intent to engage in unnatural carnal copulation for compensation. The two subsections proscribe two different ways in which a...