Bowers v. State

Levine, J., delivered the opinion of the Court. We granted certiorari here to decide whether the State child abuse law, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 35A, is so vague and indefinite as to violate the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. After appellant’s constitutional attack on the statute failed in the Circuit Court for Anne Arundel County (Evans, J.) and he was convicted by a jury of committing child abuse against his stepdaughter, he took an appeal to the Court of Special Appeals, which upheld the decision of the trial court in Bowers v. State, 38 Md. App. 21 , 379 A. 2d 748 (1977). 1 We now affirm. ¹¹⁷ The relevant facts are both undisputed and uncomplicated.

Appellant began living with Betty Bowers in 1964. They were joined two years later by five-year old Patricia Evans, Betty’s daughter by another man. One month before the trial of this case, which occurred in August 1976, appellant and Betty were married. On February 25, 1976, Patricia, then 15 years of age, “played hookey” from school for part of the day.

When she returned home that evening, Betty, having learned of her daughter’s absence from school, struck Patricia on the legs several times with a belt. 2 According to Patricia, appellant then took the belt and began to beat her with it, striking her 15 to 20 times on the back, neck, arm and legs. She attended school on the next day, but a day later her vice-principal, during a conference concerning her truancy, observed her bruises and notified the Department of Social Services. An investigating officer found bruises on Patricia’s neck, arm and back which he photographed at the police station. She was then taken to a hospital where she was given a tranquilizer and released.

Appellant, who had previously represented himself to a social worker as Betty’s husband, testified that he had accepted Patricia as his own child, that he had provided for her and had been strict with her. He further testified that he had experienced “a lot of trouble” with Patricia in 1973 and that she had run away following another incident in which he had whipped her with a belt. I Although the tragic phenomena of child abuse and neglect have plagued our society since its inception, Children’s Bureau, U.S. Department of Health, Education & Welfare, ¹¹⁸ The Abused Child 1 (1963), it was not until the late 1950’s that research physicians throughout the country began to uncover evidence showing that the incidence and violence of parental attacks on children were far greater than anyone had ever anticipated. D. Gil, Violence Against Children 18 et seq.

(1973). Spurred on by these shocking revelations and by a major clinical study prepared by a team of pediatricians in 1962, see Kempe, Silverman, Steele, Droegenmueller & Silver, The Battered Child Syndrome, 181 J. Am. Med. A. 17 (1962), legislatures in all fifty states rapidly adopted laws aimed directly at reducing the prevalence of physical mistreatment of children.

Paulsen, Parker & Adelman, Child Abuse Reporting Laws —- Some Legislative History, 34 Geo. Wash. L. Rev. 482 (1966). On the history of child abuse generally, see Fontana, Somewhere a Child is Crying 4 et seq.

(1976). Maryland’s initial attempt at achieving a modicum of reform in this troubled area came in 1963 with the enactment of Chapter 743 of the Laws of 1963, then codified as §HAof Article 27. That pioneering statute, entitled “Assault on Child,” made it a felony for any “parent... or other person” having “permanent or temporary care or custody of a minor child” to maliciously beat, strike or mistreat the child to such a degree “as to require medical treatment.” 3 Seeking to expand the relatively narrow scope of criminal liability ¹¹⁹ provided for in earlier legislation, the General Assembly amended the statute in 1973 to provide for the punishment of any parent or custodian who “causes abuse” to a child under the age of eighteen years. Laws of 1973, ch. 835; Art. 27, § 35A (a); see State v. Fabritz, 276 Md. 416, 423-24 , 348 A. 2d 275 (1975), cert. denied, 425 U. S. 942 (1976).

The term “abuse” was defined to be any: “physicial injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child.” Art. 27, § 35A (b) (7) (A) (emphasis added). 4 For a discussion of the background of Maryland child abuse legislation, see Note, Maryland Laws on Child Abuse — History, Analysis and Reform, 6 U. Balt. L. Rev. 113 , 116-18 (1976). The sole ground asserted by appellant in this Court for reversal of his conviction is that the portion of the statute defining the felony of child abuse is so uncertain and indefinite as to deprive him of his right to due process of law under the Fourteenth Amendment. Appellant argues that the statute is unconstitutionally vague in two respects.

First, he maintains that the use of the phrase “cruel or inhumane treatment” in Art. 27, § 35A (b) (7) (A) effectively reduces the language of the statute to such a state of uncertainty “that it fails to convey a definite warning as to the proscribed conduct measured by common understanding and practices.” Secondly, he claims that the failure of the statute to include any definition of the phrase “temporary care or custody” creates a further ambiguity of constitutional dimension, since neither appellant nor others similarly situated would have had any way of knowing whether they fell within the class of persons subject to prosecution under the law. In our opinion, both of these contentions lack merit. ¹²⁰ II From a long line of Supreme Court decisions, certain basic and universally accepted principles have emerged concerning application of the void-for-vagueness doctrine. 5 The cardinal requirement is that a penal statute “be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., 269 U. S. 385, 391 , 46 S. Ct. 126 , 70 L. Ed. 322 (1926). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Id. The Fifth and Fourteenth Amendments guarantee that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.

All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 , 59 S. Ct. 618 , 83 L. Ed. 888 (1939). Accord, Hynes v. Mayor of Oradell, 425 U. S. 610, 620 , 96 S. Ct. 1755 , 48 L.Ed.2d 243 (1976); United States v. Mazurie, 419 U. S. 544, 553 , 95 S. Ct. 710 , 42 L.Ed.2d 706 (1975); Smith v. Goguen, 415 U. S. 566 , 572 n.8, 94 S. Ct. 1242 , 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U. S. 104, 108 , 92 S. Ct. 2294 , 33 L.Ed.2d 222 (1972); Bouie v. City of Columbia, 378 U. S. 347, 350-51 , 84 S. Ct. 1697 , 12 L.Ed.2d 894 (1964); United States v. Harriss, 347 U. S. 612, 617 , 74 S. Ct. 808 , 98 L. Ed. 989 (1954); Winters v. New York, 333 U. S. 507, 515-16 , 68 S. Ct. 665 , 92 L. Ed. 840 (1948). See generally Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).

In assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the persons to whom it applies, courts typically ¹²¹ consider two basic criteria. The first of these may be described as the fair notice principle and is grounded on the assumption that one should be free to choose between lawful and unlawful conduct. Due process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly. This notion of fair warning does not presume that criminals frequently consult the statute books prior to embarking on an illicit course of action.

Rather, as Mr. Justice Holmes explained in McBoyle v. United States, 283 U. S. 25, 27 , 51 S. Ct. 340 , 75 L. Ed. 816 (1931): “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” Since “vague laws may trap the innocent by not providing fair warning,” Hynes v. Mayor of Oradell, 425 U. S. at 622 ; Grayned v. City of Rockford, 408 U. S. at 108, no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited. Rose v. Locke, 423 U. S. 48, 49 , 96 S. Ct. 243 , 46 L.Ed.2d 185 (1975); United States v. Harriss, 347 U. S. at 617 ; Governor v. Exxon Corp., 279 Md. 410, 454 , 370 A. 2d 1102 , 372 A. 2d 237 (1977), aff'd, 437 U. S. 117 , 98 S. Ct. 2207 , 57 L.ED.2d 91 (1978). A statute may also be stricken for vagueness if it fails to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory ¹²² application.” Grayned v. City of Rockford, 408 U. S. at 108-109; accord, Papachristou v. City of Jacksonville, 405 U. S. 156, 170 , 92 S. Ct. 839 , 31 L.Ed.2d 110 (1972).

This is not to say, of course, that a criminal statute is void merely because it allows for, the exercise of some discretion on the part of law enforcement and judicial officials. It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle. See Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 , 86 S. Ct. 518 , 15 L.Ed.2d 447 (1966). As a general rule, the constitutionality of a statutory provision under attack on void-for-vagueness grounds must be determined strictly on the basis of the statute’s application to the particular facts at hand.

United States v. Powell, 423 U. S. 87, 92 , 96 S. Ct. 316 , 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U. S. at 550 ; United States v. National Dairy Corp., 372 U. S. 29, 32-33 , 83 S. Ct. 594 , 9 L.Ed.2d 561 (1963). Thus, it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case. United States v. Petrillo, 332 U. S. 1, 7 , 67 S. Ct. 1538 , 91 L. Ed. 1877 (1947). A different rule governs, however, where the statute in question appears to intrude upon fundamental constitutional liberties, particularly the First Amendment guarantees of free speech and assembly.

In such cases, not only may the two vices of inadequate notice and insufficient adjudicative guidelines be present, but in addition the indefiniteness of the statute itself may inhibit the exercise of protected freedoms. Winters v. New York, 333 U. S. at 509 ; United States v. National Dairy Corp., 372 U. S. at 36 . “[Tjhere is [in these cases] the danger that the state will get away with more inhibitory regulation than it has a constitutional right to impose, because persons at the fringes of amenability to regulation will rather obey than run the risk of erroneous ¹²³ constitutional judgment.” Note, 109 U. Pa. L. Rev. at 80. On account of this “chilling effect” which vagueness can exert on First Amendment liberties, the Supreme Court has stated that whenever a criminal statute may, because of imprecise draftsmanship, impact upon free speech rights, the void-for-vagueness doctrine “demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U. S. at 573 ; accord, Hynes v. Mayor of Oradell, 425 U. S. at 620 ; cf. Coates v. City of Cincinnati, 402 U. S. 611, 614 , 91 S. Ct. 1686 , 29 L.Ed.2d 214 (1971) (ordinance held unconstitutionally vague because it conditioned exercise of right of assembly upon unascertainable standard).

Translated, this principle of strict specificity means that where First Amendment values are at least potentially involved, the statute is to be tested for vagueness on its face. Smith v. Goguen, 415 U. S. at 573 ; Winters v. New York, 333 U. S. at 509 . So considered, the principle is essentially a rule of standing, permitting a defendant to challenge the validity of a statute as applied to marginal cases, even though the acts for which he has been charged may be squarely within the coverage of the statute. Note, 109 U. Pa.

L. Rev. at 97. Once it is determined, however, that a strict specificity standard ought to apply in any given case, the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate guidelines. Although First Amendment interests are not implicated here, the matter of facial precision is not without significance in this case. Appellant argues that greater specificity is required “in the area of criminal child abuse statutes because of their potential for unwarranted intrusions on the constitutionally protected right of privacy in family relationships.” While the Supreme Court has to date limited its “stricter specificity” test to those vagueness cases in which only First Amendment rights have been asserted, several state and lower federal courts have taken the position in the meantime that a more rigorous standard of vagueness review is triggered whenever an ill-defined penal statute is alleged to infringe upon any of the fundamental freedoms ¹²⁴ protected under the Bill of Rights.

E.g., People v. Barksdale 8 Cal. 3d 320 , 105 Cal. Rptr. 1 , 503 P. 2d 257, 260 (1972) (privacy); City of Lakewood v. Pillow, 180 Colo. 20 , 501 P. 2d 744, 745 (1972) (right to bear arms); Alsager v. District Court of Polk Cty., Iowa, 406 F. Supp. 10, 18-19 (S.D. Iowa 1975), aff’d per curiam, 545 F. 2d 1137 (8th Cir. 1976) (statute terminating parental rights for refusal to “give child necessary parental care and protection” or for “conduct... detrimental to the physical or mental health or morals of the child” held unconstitutionally void for vagueness); see also Day, Termination of Parental Rights Statutes and the Void for Vagueness Doctrine: A Successful Attack on the Parens Patriae Rationale, 16 J. Fam. L. 213 , 217 (1978). It remains to be seen whether the right of a parent to chastise his children by corporal punishment qualifies as a fundamental right for purposes of vagueness analysis.

There are, though, strong indications that parents may well be entitled to some degree of constitutional protection in choosing the means by which to correct or influence the behavior of their offspring. See Moore v. City of East Cleveland, Ohio, 431 U. S. 494, 505 , 97 S. Ct. 1932 , 52 L.Ed.2d 531 (1977) (“decisions concerning child rearing [are] recognized as entitled to constitutional protection”); Wisconsin v. Yoder, 406 U. S. 205, 232 , 92 S. Ct. 1526 , 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U. S. 645, 651 , 92 S. Ct. 1208 , 31 L.Ed.2d 551 (1972) (“the rights to conceive and to raise one’s children have been deemed ‘essential [and] basic civil rights of man’ ”); J. Nowak, R. Rotunda & J. Young, Constitutional Law 419 (1978) (“this [fundamental] right to privacy has been held to include the right to freedom of choice in ... child