Hughes v. State

Orth, J., delivered the opinion of the Court. BRUCE WILDEN HUGHES does not claim that the evidence adduced at his trial before a jury in the Circuit Court for Montgomery County was not sufficient to sustain his convictions of committing a certain unnatural and perverted sexual practice on each of 17 January and 24 January 1971 with Frank Edward Dunklee, Jr., a male child under the age of eighteen years. 1 But he asserts that the convictions must be set aside because the statute proscribing his conduct is unconstitutional, and he claims that in any event the trial court committed prejudicial error in the admission of certain evidence. ⁵⁰⁰ I Code, Art. 27, § 554 provides: “Every person who shall be convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of. any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.” 2 The constitutionality of the statute has been upheld heretofore. In Blake v. State, 210 Md. 459 the Court of Appeals saw no merit in the contention that the statute was unconstitutional because it was vague and uncertain and failed to fix an ascertainable standard of guilt. 3 It observed, at 462, that “similar statutes in other states have been universally sustained”, citing cases. Hughes ⁵⁰¹ bases his attack on more sophisticated grounds.

He urges that the statute is unconstitutional (1) “for overbreadth in that it punishes every person convicted of acts of sexual perversion without regard to right of privacy of a) consenting married adults and b) consenting unmarried adults concerning their sexual acts,” and (2) “because the means of enforcement, which allow a penal term for up to ten years, are inappropriate to effectuate the purpose of the legislation.” (1) The constitutional issue was raised below by a motion to dismiss which was denied upon hearing. Our first inquiry is whether Hughes had standing to raise the contention. The general rule is that a litigant may only assert his own constitutional rights or immunities. McGowan v. State of Maryland, 366 U. S. 420, 429 , citing United States v. Raines, 362 U. S. 17 .

We said in Lashley v. State, 10 Md. App. 136 , 143: “Ordinarily, a person has no standing in court to vindicate the constitutional rights of others.” We pointed out that in State v. Cherry, 224 Md. 144, 155 , the Court of Appeals noted that while, as a general rule in criminal prosecutions, the accused has the right to assert the invalidity of the law under which he is being prosecuted, he must show that his rights are adversely affected by the statute and more particularly that his rights are thus affected by the particular feature of the statute alleged to be in conflict with the constitution, it not being sufficient that the statute may impair the rights of others. We observed that Brown v. State, 177 Md. 321 ; Crouse v. State, 130 Md. 364 , and Parker v. State, 99 Md. 189 were to like effect. See Jenkins v. McKeithen, 395 U. S. 411 ; Flast v. Cohen, 392 U. S. 83 ; Baker v. Carr, 369 U. S. 186 . The basis of Hughes’ argument is that because the statute is unconstitutional as it applies to consenting adults, married or unmarried, it is unconstitutional on its face and may not be applied to him.

But he was not charged as a consent ⁵⁰² ing adult with indulging in the proscribed conduct with another consenting adult. Rather the charge was that he committed an unnatural and perverted sexual practice with a minor. He recognizes that “the legislature may pass laws in the field of regulation of sexual perversion and regulation of obscenity” and he concedes that “the act for which [he] was convicted might under a properly drawn statute be made subject to criminal sanctions.” We do not agree that in the circumstances he has standing to challenge the constitutionality of the statute upon its face; he has not shown that his rights were adversely affected by the feature of the statute which he alleges to be in conflict with the constitution. That it may impair the rights of others does not bestow upon him standing to challenge it.

The possibility of a law’s unconstitutional invocation against some defendants in no way affects its constitutionality when it is invoked against a clearly punishable person. Hughes protests that the general rule is here not apposite. He points out that the statute is not severable, with a constitutional part applicable to one person and an unconstitutional part applicable to another person as was the case, he alleges, in Lashley in which Code, Art. 27, § 3 was involved. He says that the statute here applies to “every person” who commits the proscribed acts and since it is unconstitutional as to some persons who commit such acts it must be held to be unconstitutional as to “every person” who commits them.

We do not see it that way. We are aware that the Court of Appeals in State v. Cherry, supra, at 155, quoted with approval 16 C.J.S., Constitutional Law ¶ 84: “An accused affected by one portion [of a statute] may not plead the invalidity of another portion of the same statute not applicable to his case, where the invalidity of the portion questioned will not render void the entire act or at least some provision that does not affect him adversely; * * But it was early established that it is the duty of an appellate court to so construe the language of a statute as to make it valid and effective. Parker v. State, ⁵⁰³ 99 Md. 189 concerned an Act prohibiting the selling and giving away of intoxicating liquors. It was claimed that the Act was void because it did not contain explicit provisos excepting the giving of liquor by private citizens to the members of their household or their guests within their own homes.

The Court said, at 200, “[A]ssuming that its terms are so general that it might be construed as suggested, yet if such a construction would, as contended, make the Act invalid, it would be our duty, if possible, to so construe the language as to make the Act valid and effective. This rule of construction is so well settled that it requires no elaboration.” So, even if it were “the Supreme Law of the State” through decisions of the Supreme Court of the United States 4 that it was unconstitutional to prohibit consenting adults from committing the acts designated by § 554, the statute could be construed so as to exempt consenting adults, “for it is not to be presumed that the Legislature intended to do an unconstitutional and void thing; and any construction that would lead to such a conclusion ought to be avoided if possible.” Temmick v. Owings, 70 Md. 246, 251 . We did this in State v. Siegel, 13 Md. App. 444 . See Kirstel v. State, 13 Md. App. 482 ; Anderson v. State, 12 Md. App. 186 .

Nothing we have said in determining that Hughes had no standing to contest the constitutionality of the statute is to be construed as implying that we believe that the statute is unconstitutional as to adults, married or unmarried, consenting to the acts proscribed. We shall decide that question when it is properly presented to us. We observe, however, that although it is conceivable that a husband and wife could be convicted under § 554 even though the evidence established that the act was committed with the consent of both parties 5 , we think ⁵⁰⁴ it unlikely. We are not aware of a case in this jurisdiction where a husband or wife was convicted of the offense. 6 If the acts were in private there would be no witnesses, and if consensual the parties would be equally guilty.

Their testimony as witnesses would then require corroboration. Early v. State, 13 Md. App. 182 . And of course, neither the husband nor the wife would be a compellable witness against the other. Code, Art. 35, § 4.

Mr. Justice Douglas, speaking for the Court in Griswold v. State of Connecticut, 381 U. S. 479 , said, at 486: “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” We share the sentiments of the court in Pruett v. State, 463 S.W.2d 191, 195 (Texas 1970) that to extend the protection of this right of privacy of the marital union to strike down a statute proscribing cunnilingus, fellatio, and the whole field of other unnatural or perverted sexual practice, when successful prosecution of private consensual sexual acts between married couples are at most only “conceivable”, is not consistent with the description ⁵⁰⁵ of the marriage relationship and right of privacy described by Mr. Justice Douglas. 7 Hughes claims that § 554 is “unconstitutionally vague in that it fails to establish any age below which consent shall not be a bar to prosecution.” He arrives at this conclusion by extending the holding in Griswold .

On the premise that the import of Griswold is that private, consensual, marital relations are protected from regulation by the State through the use of a criminal penalty, he asserts that under the doctrine of equal protection of the laws it is beyond the power of the State to so regulate private, consensual sexual conduct of unmarried adults, Griswold not foreclosing the right of privacy of such persons. He then encompasses minors, unmarried and married, within the rule, referring to Code, Art. 43, § 135 as authority that the Legislature has recognized that minors have rights of privacy regarding matters of sexual conduct. Thus as unmarried adults may consent and certain minors may consent, any regulation of their conduct by criminal penalty must establish an age below which consent by the minor may not be effective. Even accepting the initial premise that Griswold protects private consensual marital relations, we are unable to accept the extensions of the rule suggested.

While Griswold may not expressly foreclose the application of its rule to unmarried adults, its rationale clearly does not lend itself to either a heterosexual or homosexual relationship between unmarried persons. The rationale of the Gris- ⁵⁰⁶ wold holding flows from its eulogy of the marital status and lacking such status the rule has no foundation. In such circumstances we see no invidious discrimination between married individuals and unmarried individuals so as to deny equal protection of the laws in any event. See Rapheal v. Hogan, 305 F. Supp. 749 (U.S.D.C.S.D. New York 1969) ; State of Washington v. Rhinehart, 424 P. 2d 906 (Washington 1967).

The further extension to encompass minors within the Griswold ruling is also suspect. Code, Art. 43, § 135, under the general heading “Health”, provides that a minor shall have the same capacity as an adult to consent to medical treatment if one or more designated conditions apply. One of such conditions is that the minor had attained the age of 18 years. Subsection (a) (1).

Another is that the minor “seeks treatment or advice concerning venereal disease, pregnancy or contraception not amounting to sterilization.” Subsection (a) (3). It is in the discretion of the treating physician whether or not to inform the spouse, parent, custodian or guardian as to the treatment given or needed. Subsection (c). 8 But the statute indicates no legislative intent that a minor may consent to perverted sexual practice. We see no constitutional prohibition in a legislative prescription that it be a public offense for an adult to engage in perverted sexual practice with a minor even with the minor’s consent.

We do not deem such activity to be constitutionally protected. Even if the 9th Amendment be considered as entitling consenting adults to engage in private perverted sexual practice, it does not necessarily follow that it entitles an adult, as a constitutional right, to so engage with a minor. Nor do we feel that the 9th Amendment precludes the Legislature from declaring illicit such a sexual relationship regardless of the age of the minor. If the Legislature feels it to be in the public interest to establish an age of consent for perverted sexual practice, as it has in ⁵⁰⁷ carnal knowledge of a female, it, of course, may do so. 9 But that § 554 does not “establish any age below which consent shall not be a bar to prosecution” does not make the statute unconstitutionally vague.

All presumptions favor the constitutionality of a duly enacted statute and it will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Mason v. State, 12 Md. App. 655 ; Woodell v. State, 2 Md. App. 433 . We are not persuaded that Code, Art. 27, § 554 must be declared unconstitutional because it does not specify an age at which a minor may consent to engage in perverted sexual practice with an adult. 10 (2) Hughes contends that Code, Art. 27, § 554 is unconstitutional “because the means of enforcement, which allow a penal term for up to ten years, are inappropriate to effectuate the purpose of the legislation.” In support of this point below Hughes offered the testimony of Frank Broschart at the hearing on the motion to dismiss the indictment. At the time of the hearing Broschart was chairman of the Department of History at Bishop McNamara High School in Forestville, Maryland.

He said he had a “two-dimensional” opportunity to observe conditions inside Maryland penal institutions. One op ⁵⁰⁸ portunity was as an inmate in the Maryland Penitentiary in 1968 — “I was serving a sentence for bad checks.” The other was as a full-time teacher at the Maryland Correctional Institution and the Maryland Correctional Training Center in Hagerstown in 1969. Both as an inmate and a teacher he observed the daily life of prisoners. The substance of his testimony was as summarized in Hughes’ brief: “[H]e had personally witnessed at least ten instances of sodomy * * * and that he had observed a number of other homosexual acts, such as kissing and romantic conversations between males; that prison guards were unable to control these practices * * *; that prisoners convicted on sex charges were grouped together where their opportunities for continued homosexual relationships were intensified * * *.

The witness also testified that in the Maryland penal system a prisoner who had been convicted for homosexuality would be approached either in an aggressive manner or by seduction to submit to sexual activities by other inmates, * * * and that if a prisoner refused to participate he would be in danger of being knifed or hurt * * (Transcript references omitted) He argues on the basis of Broschart’s testimony that not only is there “in fact no connection between the purpose sought to be. accomplished under Art. 27, § 554, and of punishment by a penitentiary sentence, but th4t such punishment forces the person convicted to engage more intensively in homosexual practices.” He concludes that therefor the imprisonment provisions of the statute must be stricken and his sentence vacated. The imprisonment provisions of the statute are not unconstitutional on their face. The Legislature is not constitutionally precluded from authorizing the imprisonment of a person convicted of committing an act which it has declared to be a crime. The constitutional prohibí ⁵⁰⁹ tions are against the infliction of “cruel and unusual punishments.” Amendment VIII, to the Constitution of the United States; Art. 25 of the Declaration of Rights, Constitution of Maryland.

Imprisonment for years or life has been held not to be cruel and unusual. Martin v. State, 227 Md. 407, 410 . II Hughes contends that the trial court erred in admitting into evidence a book seized from his apartment under the authority of a search warrant. The book was entitled “Guidebook to Sexual Positions Between Consenting Adult Males,” by J. J. Proferes.

A blurb on the cover proclaimed it to be “the first authentic guidebook, complete with illustrations on sexual positions for every male-male relationship!” The introduction began: “The fact that hundreds of ‘how-to’