Schochet v. State

MURPHY, Chief Judge,

dissenting.

The majority holds that Maryland’s “Unnatural or perverted sexual practices” statute, Maryland Code (1957, 1989 Repl.Vol.), Article 27, § 554, which prohibits fellatio among other proscribed acts, does not encompass such conduct where it is not engaged in for commercial purposes and involves consenting adults of opposite sexes in the privacy of the home. The Court does not, therefore, address the constitutional question of whether, in the circumstances of this case, the act of fellatio, proscribed by § 554, is conduct protected by the constitutional right of privacy.

In its disposition of this case, the Court has applied the principle that where a statute is susceptible to two reasonable interpretations, that interpretation which avoids a determination of the statute’s constitutionality is preferred. I do not find that the principle is applicable in this case because the language of § 554 is not susceptible, reasonably, to the interpretation placed upon it by the Court. That there may be a significant division throughout the country as to the constitutionality of statutes similar to § 554 provides no basis to conclude that the language of the Maryland statute lends itself to more than one reasonable interpretation of its provisions. On its face, § 554 does not exclude from its coverage consensual, noncommercial, heterosexual activity between adults in private. Indeed, the statute is all-inclusive in its coverage; it does not distinguish between consensual and nonconsensual acts, nor does *737 it distinguish between commercial and noncommercial sexual activity, public from private, homosexual from heterosexual, married from unmarried, or adult from juvenile activity. The statute criminalizes sexual acts deemed to be “unnatural” or “perverted,” describes those acts, and provides no exceptions from the prohibited conduct.

Section 554 was enacted in 1916, a staid time in our history when the sexual mores of the people were far less tolerant than the moral attitudes that prevail in today’s society. While there is no legislative history which sheds light on the legislative aim or purpose in enacting § 554, its plain words convey but one meaning — that it does not exclude, as here, the consensual, noncommercial act of fellatio between heterosexual adults in private. The statute has remained unchanged to this day. Whatever the legislative motivation for outlawing “unnatural or perverted sexual practices” — whether it was on grounds of public morality or public health — the statute’s meaning today is the same as its meaning in 1916. That the language of § 554 is broad and “sweeping,” as the majority states, cannot be bootstrapped into a rational holding that it is thereby subject to two reasonable interpretations. On the contrary, the statute’s all-encompassing language was plainly intended to reach those “unnatural” or “perverted” sexual practices, therein so vividly described, without exception. No other reasonable conclusion is evident.

Concluding as I do that § 554 includes the type of sexual conduct in this case, I would consider the constitutional question presented — whether nonmarital, private consensual adult heterosexual relations of a type characterized by the legislature as “unnatural or perverted” are protected by the constitutional right of privacy. On this issue, I stand with the majority of the Court of Special Appeals in Schochet v. State, 75 Md.App. 314 , 541 A.2d 183 (1988), and would hold that § 554 does not violate the constitutional right of privacy as to consensual, adult, heterosexual fellatio in private. In his scholarly opinion for the divided intermediate appellate court, Judge Moylan carefully ana *738 lyzed Supreme Court and other authorities. As his opinion is simply beyond improvement, I adopt its reasoning and consequently would affirm the judgment in this case.

By way of postscript, I share Judge Moylan’s observation that there has been a massive sexual revolution in the last quarter of this century and that modes of sexual expression once thought to be unnatural or perverted may now be part of the commonplace experience of a significant majority of Americans. Schochet, supra, 75 Md.App. at 350 , 541 A.2d 183 . If this be so, the legislature, as the elected representatives of the people, and as the primary body which declares the public policy of this State, should consider decriminalizing those sexual acts which it finds no longer are offensive to the present circumstances of our people.

Judge McAULIFFE authorizes me to state that he joins in the views expressed in this dissenting opinion.