The opinion
Dissenting Opinion
DeBruler, J.
I dissent for two reasons: (1) The statute is unconstitutional due to vagueness; (2) The statute is un *273 constitutional to the extent that it attempts to regulate private sexual relations between two consenting adults.
(1) Appellant was convicted in a trial without jury in the Marion County Criminal Court No. 2 for Sodomy in violation of I.C. 1971, 35-1-89-1, being Burns § 10-4221, and sentenced to two to fourteen years in prison. Appellant was charged under the first clause of the statute which reads:
“Whoever commits the abominable and detestable crime against nature with mankind or beast . . . shall be deemed guilty of sodomy, and, on conviction, shall be fined not less than one hundred dollars nor more than one thousand dollars, to which may be added imprisonment in the state prison not less than two years nor more than fourteen years.”
It is a fundamental principle of our system of law in Indiana that a statute attempting to create a public offense must convey an adequate description of the evil intended to be prohibited so that a person of ordinary comprehension subject to the law can know what conduct on his part will render him liable to its penalties. Stanley v. State (1969), 252 Ind. 37 , 245 N. E. 2d 149 ; Guetling v. State (1926), 198 Ind. 718 , 153 N. E. 765 ; Cook v. State (1901), 26 Ind. App. 278 , 59 N. E. 489 . A statute which does not do this also violates the due process clause of the Fourteenth Amendment to the United States Constitution. Bouie v. Columbia (1964), 378 U. S. 347 , 84 S. Ct. 1697 , 12 L. Ed. 2d 894 ; U. S. v. Harriss (1954), 347 U. S. 612 , 74 S. Ct. 808 , 98 L. Ed. 989 ; Lanzetta v. New Jersey (1939), 306 U. S. 451 , 59 S. Ct. 618 , 83 L. Ed. 888 .
The first clause- of the sodomy statute which is the only part of the statute involved here, does not meet this test. The crucial words are “abominable and detestable crime against nature with mankind or beast”. The words “abominable” and “detestable” are mere epithets and are not descriptive of any behavior at all. The words “with mankind or beast” give us no information unless we know what behavior is being conducted “with mankind or beast”. The issue then is whether *274 a person of ordinary comprehension can know what conduct is prohibited by the phrase “crime against nature”. I do not think so. Aside from the fact that to be punishable a crime must be against the sovereign State of Indiana, not against something called “nature”, the words do not tell anyone what behavior constitutes the crime. What is meant by “nature” ? A deviation from a statistical norm or from some unannounced moral norm? The words “crime against nature” are also mere epithets. They could be used to punish whatever behavior the majority considered morally offensive or perverse without any advance notice of the kind of behavior prohibited.
Appellee makes two arguments in favor of the constitutionality of the statute. Appellee argues that although the statute does not define the acts covered by it, adequate definition has been provided over the years by this Court curing any possible defects for vagueness. In support of this contention appellee cites four cases: Glover v. State (1913), 179 Ind. 459 , 101 N. E. 629 ; Young v. State (1923), 194 Ind. 221 , 141 N. E. 309 ; Sanders v. State (1940), 216 Ind. 663 , 25 N. E. 2d 995 ; Estes v. State (1964), 244 Ind. 691 , 195 N. E. 2d 471 . These four cases clearly demonstrate the problem that appellee claims does not exist.
In Glover v. State, supra, the appellant was charged with fellatio, i.e., mouth-male genital contact between two persons. Appellant argued that the sodomy statute did not cover such acts but included only anal copulation. The Court recognized other jurisdictions were split on the issue but it held that the “broad definition” was what the Legislature intended. The Court cited eleven definitions the broadest of which was “carnal copulation by human beings with each other against nature, or with a beast”. The Court said:
“In view of this fact we think we are left free to conclude that our legislature, when it passed the act of 1905, § 2374 Burns 1908, supra, chose rather the broad definition of the crime, which would include those abominations within the *275 mischief of the law, rather than the narrow one which without reason would exclude from punishment a perpetrator of what might well be considered the vilest and most degenerate of all the acts within the inclusion of the broad definition.” (Emphasis added.) 179 Ind. at 465, 466 .
Who could read that opinion and find a fixed meaning in the first clause of the statute? Of all the possible types of sexual activity which are within the “mischief of the statute”? Is cunnilingus covered or not?
In Young v. State, supra, the Court held that the words “abominable and detestable crime against nature” also included cunnilingus, i.e., mouth-female genital contact between two persons, saying:
“We thus have the words of the statute and their meaning. The only thing left for the court to do is to sensibly apply them as their purposed use in the statute would indicate. This done, they not only cover the thought asserted by appellant, but they have a wider meaning, the corruption of morals, the disgrace of human nature by an unnatural sexual gratification, of which reason and decency forbids a more detailed description. They seem to be sufficiently broad and extensive to include the abominable and detestable act, cunnilingus, proved in this case.” (Emphasis added.) 194 Ind. at 225, 226 .
It is difficult to see any fixed meaning in this opinion.
Then in Estes v. State, supra, this Court said:
“The case of Glover v. State, supra, as heretofore stated, merely holds that the first clause within the sodomy statute, supra, includes the offense of copulation of the male organ of one person with the mouth or the anus of the other. No authority has been cited nor has any come to our attention which has defined or described the off eme with which we are here concerned, in any other manner.” (Emphasis added.) 244 Ind. at 695 .
This case was approved in Phillips v. State (1967), 248 Ind. 150 , 222 N. E. 2d 821 . That opinion could reasonably be read *276 to mean that the first clause of the statute includes only acts involving the male organ, thus excluding cunnilingus. We note that it is not what lawyers understand by the statute but what a “person of ordinary comprehension” can know by reading it. In this state of affairs how could anyone say that a person of ordinary comprehension could find a judicially fixed meaning in the phrase “abominable and detestable crime against nature?”
In Sanders v. State, supra, this Court held that the first clause of the statute applied to the behavior proved in the trial court but there is no way to know what behavior that was because the Court did not state any of the facts, in the case. The Court said:
“The statute in this state defines the crime as ‘the abominable and detestable crime against nature with mankind or beast.’ This court has held in common with the courts of other jurisdictions under similar statutes, that the statutory definition includes both common-law sodomy and acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified contrary to nature. Glover v. State (1913), 179 Ind. 459 , 101 N. E. 629 ; Connell v. State (1939), 215 Ind. 318 , 19 N. E. 2d 267 ; Young v. State (1924), 194 Ind. 221 , 141 N. E. 309 .” 216 Ind. at 664, 665 .
How can this case help fix the meaning of the statute even for lawyers when the opinion does not reveal what behavior was deemed punishable?
Appellee’s second argument is that this Court has already determined that this statute is not void for vagueness. Appellee cites Estes v. State, supra, and Phillips v. State, supra, in support of this contention. In neither of these cases did the Court offer even one reason to support its position. The Phillips case, merely relied on the decision in Estes . In Estes the appellant alleged the affidavit charging sodomy in the terms of the first clause of the statute was insufficient to give adequate notice. The Court held the affidavit was sufficient apparently because it included more than the statutory' language. *277 The Court did not even discuss the vagueness of .the first clause of the sodomy statute.
The only reason ever offered by this Court as to why this first clause of the statute is not void for vagueness is that it would offend delicate sensibilities to describe the conduct that is prohibited. Glover v. State, supra. The Court in effect has held it .justifiably vague. Whatever may have been the merits of that position in 1913 it has none now.
(2) This case involves the application of the police power to regulate the private sexual conduct between consenting adults. Griswold v. Conn. (1965), 381 U. S. 479 , 85 S. Ct. 1678 , 14 L. Ed. 2d 510 , established that the specific guarantees of the federal Bill of Rights and the “penumbras formed by emanations from those guarantees” create a zone of privacy about certain human activities and relationships. The state cannot intrude on that zone without a showing of a compelling state interest in regulating the activity. Cotner v. Henry, 394 F. 2d 873 (7th Cir. 1968). I believe that private sexual conduct between consenting adults is within that constitutionally protected zone.
It is true that both Griswold and Cotner concerned the marital relationship. However, I see no valid reason to limit the right of sexual privacy to married persons. The majority opinion offers no reason why being married should make a difference in the applicability of the statute and I believe there is none. The moral preferences of the majority may not be imposed on everyone else unless there exists some harm to other persons. Sexual acts between consenting adults in private do not harm anyone else and should be free from state regulation.
Prentice, J., concurs.
Note. — Reported in 268 N. E. 2d 84 .