Petition for Writ of Certiorari — Oklahoma v. Post

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THE STATE OF OKLAHOMA

Petitioner,

Vv.

JAMES LESTER POST, JR.

Respondent.

_

PETITION FOR A WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

DAVID W. LEE*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL AND FEDERAL DIVISIONS

112 State Capitol Building

Oklahoma City, Oklahoma 73105

(405) 521-3921

ATTORNEYS FOR PETITIONER

*Counsel of Record

June, 1986

|

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the right to privacy

under the Fourteenth Amendment to the

United States Constitution includes the

right to select consensual adult sex

partners and extends to matters of sexual

gratification between consenting adults.

2. Whether the State is required to

demonstrate a compelling justification for

prohibiting certain non-procreative sexual

conduct between consenting adults.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

OPINION BELOW. . . «. «© © «© «© «

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS .. .

STATEMENT OF THE CASE. ... .

REASONS FOR GRANTING THE

PETITION e ° = 2 © . id e ° s ad

CONCLUS ION o o ° a o + = e - 7

APPEND IX a . e . e . . . +. . .

iii

TABLE OF AUTHORITIES

Cases:

Berryman v. State, 283 P.2d 558

(Gzia.CEIM. ABD. 13955) . « « 2 «

Board of Education of the

City of Oklahoma City, Oklahoma

v. National Gay Task Force, 105

S.Ct. L858 (A9ES) « 2 « et et

Bowers v. Hardwick, 760 F.2d

Laue (iiGm CAE. 29806) « « 0 2

Carey v. Population Services

International, 431 U.S. 678

$iyeeP * . 2 e = 7 ~ s* . * ° a

Doe v. Commonwealth, 425 U.S.

901 (1976). . ° + a a o > e e *

Dunn v. Blumstein, 405 U.S.

330 (1972). . o © ~~ — - 7. . 2

Lockner v. New York, 198 U.S.

45 (1905) * e + + e + * - e ”

National Gay Task Force v.

Board of Education of the

City of Oklahoma City, Oklahoma,

727 F.2d 1270 (10th Cir. 1984).

Post v. State, 715 P.2d 1105

(Okla.Crim.App. 1986) .... .

Rose v. Locke, 423 U.S. 48

(1975). . — ~ s° © o . e es a o _

13

12

iv

TABLE OF AUTHORITIES

Page

Cases:

Shapiro v. Thompson, 394 U.S.

618 (1969). - . e se ° * - - e e° 13

Stanley v. Georgia, 394 U.S.

557 (1969). e o - . * e 7 . * e 10

Wainwright v. Stone, 414 U.S.

) Se sc ee se ke 7

) Statutes:

ae © ae oe. ye) ee 2

Fla.Stat. § 800.01

(Supp. 1973). e 7 so oe . . e o e 7

Okla.Stat.Ann. tit. 21,

§ 886 (West 1983) . . « « «© © 394,5,12

Tenn. Code Ann. § 39-707

(1955). 7. a e * ” ~ . © © * e © 7

Va. Code § 18.1-212 (1950). . . 6

Other Authorities Cited:

3 Jonathan Elliot, Debates in

the Several State Conventions

on the Adoption of the Federal

Constitution 186 (1836) .... 14

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TABLE OF AUTHORITIES

Other Authorities Cited:

8 Writings of Thomas Jeffer-

son, 427 (P.L. Ford ed.

1897) se - > * e . . . o . .

U.S. Const., amend XIV...

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THE STATE OF OKLAHOMA

Petitioner,

Vv.

JAMES LESTER POST, JR.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA COURT

OF CRIMINAL APPEALS

j The Petitioner, the State of Okla-

homa, by the Attorney General of Oklahoma,

Michael C. Turpen, respectfully prays that

a Writ of Certiorari issue to review the

judgment of the Oklahoma Court of Criminal

Appeals in this matter.

OPINION BELOW

The decision of the Oklahoma Court of

Criminal Appeals from which certiorari is

sought was reported as Post v. State, 715

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P.2d 1105 (Okla. Crim. App. 1986). See

Appendix A. This opinion was filed on

February 26, 1986, and the State of Okla-

homa's (herein referred to as "the State")

Petition for Rehearing was denied on April

14, 1986. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1257

(3).

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The Fourteenth Amendment to the

United States Constitution provides in

part:

All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which

shall abridge the privileges or im-

munities of citizens of the United-

States; nor shall any State deprive

any person of life, liberty, or pro-

perty, without due process of law;

nor deny to .any person within its

jurisdiction the equal protection of

the laws.

3

Okla.Stat.Ann. tit. 21, § 886 (West 1983),

provides:

Every person who is guilty of the

detestable and abominable crime

against nature, committed with man-

kind or with a beast, is punishable

by imprisonment in the penitentiary

not exceeding ten (10) years.

STATEMENT OF THE CASE

The Respondent, James Lester Post,

Jr., (herein referred to as the "defen-

dant"), was convicted of two counts of the

crime of Crime Against Nature, Okla.

Stat.Ann. tit. 21, § 886 (West 1983). At

the same trial the defendant was also

convicted of the crime of Maiming, After

Former Conviction of a Felony, and was

acquitted of the crime of Rape in the

First Degree.

The crimes for which the defendant

was tried arose from a situation where the

defendant and the victim met at a bar.

The victim accepted the defendant's invi-

4

tation to come to his house to watch tele-

vision and drink beer. The victim claimed

that while she was at the defendant's

house, the defendant forced her to have

intercourse and oral and anal sodomy.

These incidents were the basis for the

rape charge and the two counts involving

the offense of Crime Against Nature.

The victim also testified that the

defendant beat her, causing a_e severe

injury and the subsequent loss of her eye,

although a preexisting condition made the

eye highly susceptible to injury. The

Maiming conviction was based on his as-

sault.

The Oklahoma Court of Criminal Ap-

peals reversed both Crime Against Nature

convictions, holding that the application

of Okla.Stat.Ann. tit. 21, § 886 (West

1983) was a violation of the defendant's

federally protected right to privacy. The

5

court also reversed the Maiming conviction

because the trial court did not instruct

the jury on the lesser included offense of

simple and aggravated assault and battery.

It is from the reversal of the two

Crimes Against Nature convictions that the

State of Oklaoma seeks relief by way of

this Petition of a Writ of Certiorari.

REASONS FOR GRANTING THE PETITION

In the present case, the Oklahoma

Court of Criminal Appeals held that Okla-

homa's Crime Against Nature statute, Okla.

Stat.Ann. tit. 21, § 886 (West 1983) (See

Appendix A, herein referred to as

"A. "), violated the United States

Constitution as being an infringement on

the right to privacy.+ The court stated

that:

1 This statute has been interpreted

as prohibiting sodomy and all acts of

bestial or unnatural copulation. See

Berryman v. State, 283 P.2d 558, 561-63

(Okla.Crim.App. 1955).

a ll (4

6

[T]he right to privacy, as forumu-

lated by the United States Supreme

Court, includes the right to select

consensual adult sex partners.

(A. 16a).

The Court also held that "[e]xercise

of this right cannot be proscribed by the

State in the absence of a compelling just-

ification." (A. 16a).

The State of Oklahoma (herein refer-

red to as "the State") first points out

that this Court has previously upheld sim-

ilar statutes against constitutional chal-

lenges based on vagueness grounds. Doe v.

Commonwealth, 425 U.S. 901 (1976);*% Rose

2

follows:

The Virginia statute in Doe was as

§ 18.1-212. Crimes against nature.-"

If any person shall carnally know in

any manner any brute animal, or car-

nally known any male or female per-

son by the anus or by or with the

mouth, or voluntarily submit to such

5

v. Locke, 423 U.S. 48 (1975);> Wainwright

vy. Stone, 414 U.S. 21 (1973).

More importantly, this Court is pre-

sently considering the case of Bowers v.

Hardwick, 760 F.2d 1202 (11th Cir. 1984),

2 (Continued)

carnal knowledge, he or she shall be

guilty of a felony and shall be con-

fined in the penitentiary not less

than one year nor more than three

years.

3 The Tennessee statute in Rose

read:

39-707. Crime against nature-Penal-

ty.-Crimes against nature, either

with mankind or any beast, are pun-

ishable by imprisonment in the pen-

itentiary not less than five (5)

years nor more than fifteen (15)

years.

4 The Florida statute in Wainwright

provided:

Fla.Stat. § 800.01 (Supp. 1973).

Whoever commits the abominable and

detestable crime against nature,

either with ‘mankind or with beast,

shall be guilty of a felony of the

second degree, punishable as _ pro-

vided in [other statutory sections].

8

cert. granted 106 S.Ct. 342 (1985) (No.

85-140). The State contends that this

Court's decision will be dispositive of

the issues in the present case, particu-

larly since the Eleventh Circuit in Bowers

and the Oklahoma Court of Criminal Appeals

in the present case based their decision

on identical federal constitutional prin-

ciples.

The State submits that both the

Eleventh Circuit in Bowers and the Okla-

homa Court of Criminal Appeals were incor-

rect in their holdings. Those courts

erred in holding that the United States

Constitution reguires that a state must

present a “compelling” justification or

interest before prohibiting certain sexual

conduct. See Hardwick, 760 F.2d at 1213.

Furthermore, the Oklahoma Court of Crim-

inal Appeals was incorrect in its holding

that the right to privacy "includes the

9 \

right to select consensual adult sexual

partners." (A. 16a).

The United States Constitution should

not be interpreted so as to place the

burden upon a State to demonstrate a

"compelling" reason why certain non-pro-

creative sexual conduct is prohibited.

ce. Dunn v. Blumstein, 405 U.S. 330

(1972). Obviously, sodomy does not in-

volve the decision to procreate and there-

fore state laws preventing this type of

conduct does not infringe upon this right.

Cf. Carey v. Population Services Interna-

tional, 431 U.S. 678, 686 (1977) ("where a

decision as fundamental as that whether to

bear or beget a child is involved, regula-

tions imposing a burden on it may be

justified only by compelling state inter-

OStB, « « « o*)-

Furthermore, the right to engage in

sodomy is not one of those personal deci-

10

sions which this Court has held must be

made without unjustified governmental in-

terference. See Carey, 431 U.S. at 684-

85.

The State respectfully contends that

the Oklahoma Court of Criminal Appeals

also was in error when it held that this

Court has “extended the right of privacy

to matters of sexual gratification" (A.

15a), citing Stanley v. Georgia, 394 U.S.

557 (1969). Stanley dealt only with the

right of a person to read obscene materi-

als in his or her own home, a right clear-

ly encompassed by the First Amendment. To

expand the holding in Stanley to include

conduct undertaken for "sexual gratifica-

tion" as being within the First Amend-

ment's protection is not justified by a

reading of that case or by cases involving

the right to decide whether to procreate.

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The State's main objection is to the

contitutional theory upon which the deci-

sion in the present case is based. The

State believes that the act of sodomy,

even if it is consensual, is not a funda-

mental right for which the State must show

a compelling state interest in order to

justify prohibition of such.

To hold otherwise would thrust courts

into the role of deciding which specific

sexual acts are protected by the United

States Constitution. This point is under-

scored by the Court of Criminal Appeals'

statment that:

We stress that our decision today in

no way affects the validity of 21

O.S. 1981, § 886 in its application

to bestiality, forced sexual activ-

ity, sexual activity of the under-

aged, or public or commercial sexual

acts.

(A. 18a).

The State contends that the judicial

branch of the government should not be the

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12

institution which decides whether consen-

sual acts of sodomy involving heterosexual

persons, or homosexual persons, or people

and animals, or adults and minors, are to

be prohibited.»

| The dangers of using a "constitution-

al right to privacy" as a basis for courts

to use to invalidate legislation are

obvious. In the past, the Supreme Court

: In Board of Education of the City

of Oklahoma City, Oklahoma v. National Gay

Task Force, 105 S.Ct. 1858 (1985), this

Court left standing an opinion of the

United States Court of Appeals for the

Tenth Circuit. See National Gay Task

Force v. Board of Education of the City of

Oklahoma City, Oklahoma, 727 F.2d 1270

(10th Cir. 1984), which invalidated an

Oklahoma state statute which gave a school

board the right to discharge teachers who

advocate violations of Okla.Stat.Ann. tit.

21, § 886 (West 1983), the statute in

issue in the present case. If the Court

of Criminal Appeals’ opinion in the pre-

sent case is allowed to stand, presumably

the State would’ be unable to discharge a

teacher for engaging in acts of private

consensual sodomy without violating that

teacher's rights under the Fourteenth

Amendment.

13

criticized for interpreting the due

ess clause of the Fourteenth Amendment

such a way that social legislation was

lared unconstitutional, but the use of

same clause to set aside a statute

7 arded as ill-advised based upon a

7 ght to privacy" theory is also inappro-

mate. Cf. Lockner v. New York, 198 U.S.

#(1905).

Since the right to privacy is nowhere

tioned in the United States Constitu-

n, and is therefore a product of judi-

1 construction, there is no limit as to

t state laws might be invalidated under

6

theory. One of the great legal pro-

6 In his dissenting opinion in Sha-

O v. Thompson, 394 U.S. 618, 677

69), Justice Harlan observed:

Today's decision, it seems to me,

reflects to an unusual degree the

@Mcurrent notion that this Court

mpossesses a peculiar wisdom all its

@own whose capacity to lead this

BNation out of its present troubles

14

tections is a written constitution, and to

allow judges to discover rights not speci-

fically designated defeats the purpose of

such. ”

6 (Continued )

is contained only by the limits of

judicial ingenuity in contriving new

constitutional principles to meet

each problem as it arises.

q In the Virginia Ratification

Convention Richard Henry Lee stated that

"([w]hen a question arises with respect to

the legality of any power, exercised or

assumed, [the question will be] 'Is it

enumerated in the Constitution? If it be,

it is legal and just. It is otherwise

arbitrary and unconstitutional." 3 Jona-

than Elliot, Debates in the Several State

Conventions on the Adoption of the Federal

Constitution 186 (1836). (Emphasis orig-

inal).

Thomas Jefferson has also written:

Our peculiar security is in posses-_

sion of a written Constitution. Let

us not make it a blank paper by con-

struction. If [power is boundless]

then we have no Constitution. If it

has bounds, they can be no other

than the definition of the powers

which that instrument gives.

Letter to Wilson Cary Nicholas, September

7, 1803, 8 Writings of Thomas Jefferson,

427 (P.L. Ford ed. 1897).

15

Therefore, the State respectfully

submits that the right to privacy under

the United States Constitution does not

include “the right to select consensual

adult sex partners.” (A. 16a).

CONCLUSION

For the reasons stated, it is re-

spectfully requested that the State's

Petition for a Writ of Certiorari be

granted.

Respectfully submitted,

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

DAVID W. LEE

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL & FEDERAL

DIVISIONS

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR PETITIONER

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APPENDIX A

James Lester POST Jr., Appellant,

Vv.

STATE of Oklahoma, Appellee.

No. F-84-303.

Court of Criminal Appeals of Oklahoma.

Feb. 26, 1986.

Rehearing Denied April 14, 1986.

OPINION

PARKS, Presiding Judge:

The appellant, James Lester Post,

Jr., was charged by Information in the

District Court of Rogers County, Case No.

CRF-83-17, for the offense of Rape, two

counts of the Crime Against Nature, and

Maiming, After Former Conviction of a Fel-

ony. A jury acquitted the appellant ‘of

Rape, but convicted him for the two counts

of Crime Against Nature, and Maiming. The

jury recommended a sentence of ten (10)

years on each count of the Crime Against

2a

Nature, and fifteen (15) years imprison-

ment for Maiming. We reverse.

According to the testimony produced

by the State, the alleged victim, H.C.,

went to the Red Eye Saloon in Claremore,

Oklahoma on the morning of January 7,

1983. While at the saloon, she met the

appellant, who invited her to his house to

watch television and drink beer. H.C. ac-

cepted the appellant's invitation. The

pair left the bar, purchased some beer at

a nearby store, and went to appellant's

home. When they arrived at the house,

appellant allegedly demanded sex. H.C.

claimed she was forced, at knife-point, to

have sex with the appellant. She also

Claimed appellant anally sodomized her and

forced her to commit an act of fellatio.

As appellant sexually assaulted her, he

also repeatedly beat her and caused a

severe injury to her eye, according to

Pe a

3a

H.C.'s testimony. Finally, the appellant

allowed H.C. to dress, and they left the

house together. H.C. and the appellant

eventually separated, and H.C. went to a

friend's house and called her husband.

Dr. Raymond Townsend, an ophthalmolo-

gist, testified H.C. was blinded in the

eye, which eventually was surgically re-

moved. He also testified that H.C. had

previously received eye surgery, which had

rendered her eyes highly susceptible to

injury. A forensic chemist testified that

swabs taken during a rape examination of

H.C. indicated the presence of sperm in

the rectum.

Appellant testified that he met H.C.

at the bar, and asked her to go to the

house with him. He claimed all of the

sexual acts, including anal intercourse

and oral copulation, were voluntarily per-

formed by H.C. After completing these sex

4a

acts, the appellant fell asleep. He awoke

suddenly when he discovered H.C. going

through his pants_ pockets. Appellant

testified he believed H.C. was attempting

to steal his money, and he struck her in

anger several times, though he did not

intend to injure her. He and H.C. then

dressed and left the house together.

After walking several blocks’ together,

H.C. asked that appellant not accompany

her any further, as she would not be able

to explain his presence to her husband.

On his appeal to this Court, the ap-

pellant raises seven assignments of error

challenging each of the convictions, and

the sentences imposed.

I.

We first deal with appellant's claim

that his convictions for the Crime Against

5a

Nature, 21 0.S.1981, § 886,/ rest on an

unconstitutional basis. Appellant has

asserted his claim on two grounds: First,

he claims the statute is unconstitutional-

ly vague. Second, he claims the statute,

as applied to non-violent consensual ac-

tivity between adults in private, violates

his right to privacy under the United

States Constitution. Because we agree

with appellant's second claim, we need not

address the first.

1 21 0.8.1981, § 886 defines the

Crime Against Nature as follows:

Every person who is guilty of the

detestable and abominable crime

against nature, committed with man-

kind or with a beast, is punishable

by imprisonment in the penitentiary

not exceeding ten (10) years.

We have determined that the Crime Against

Nature includes unnatural sex acts includ-

ing copulation per os between females

[Warner v. State, 489 P.2d 526 (Okl.Cr.

1971)], cunnilingus [Clayton v. State, 695

P.2d 3 (Okl.Cr.1984)], fellatio [Ex Parte

Deters, i4@° GEE.C8.* : £335: 168: Fs. 338

(1917)], and rectal coitus (copulation per

anus) [ Berryman v. State, 283 P.2d 558

(Ok1.Cr. 1955)].

6a

In this case, as noted above, he

jury was presented with evidence alleging

two entirely different scenarios. The

prosecutrix, by and through the State,

presented testimony that the appellant

used threats and violence to rape, sodo-

mize, and force her to commit an act of

fellatio. The appellant, however, claimed

the prosecutrix was a willing participant

in the sexual activities which occurred on

the day in question. He claimed the eye

injury was inflicted after the sexual

activities had ceased. Appellant was

charged with two counts alleging commis-

sion of the Crime Against Nature, one

count of Rape, and a count of Maiming. By

its statutory language, the Crime Against

Nature prohibits consensual, as well as

nonconsensual, acts of unnatural copula-

tion. See Slaughterback v. State, 594

P.2d 780 (Ok1.Cr.1979). Accordingly, the

7a

jury was instructed that consensual inter-

2 but no

course would not constitute rape,

mention was made of consent as a factor in

the Crime Against Nature. During its

deliberations the jury sent a note asking

the trial court whether the Crime Against

Nature is “a crime with or without consent

in the State of Oklahoma? [sic]". The

trial court instructed the jury that “con-

sent is not an element [of the Crime

Against Nature], nor is the crime less of

a crime if committed with a consenting

person.” The jury returned a verdict of

guilty on both counts of the Crime Against

Nature, but acquitted the appellant on the

Rape charge. Appellant alleges the con-

victions for the Crime Against Nature can-

not be permitted to stand, as they are

violative of his right to privacy. Al-

2. See 21 0.S.1981, §§ 1111, 1114.

8a

though we previously rejected a similar

claim in Warner v. State, 489 P.2d 526

(Ok1.Cr.1971), we agree that more recent

decisions of the United States Supreme

Court lend support to appellant's view.

The right to privacy asserted by this

appellant is not explicitly mentioned

either in the text or amendments to the

Federal Constitution; yet it has been

called “the most comprehensive of rights

and the right most valued by civilized

man." Olmstead v. United States, 277 U.S.

438, 478, 48 S.Ct. 564, 572, 72 L.Ed.2d

{sic]) 944 (1928) (Brandeis, J., dissent-

ing). This right, as we understand it, is

the "right of independence in making cer-

tain kinds of important decisions, with a

concomitant right to conduct oneself in

accordance with those decisions, unde-

terred by governmental restraint. . .”

People v. Onofre, 51 N.Y¥Y.2d 476, 485, 415

9a

N.E.2d 936, 939, 434 N.Y¥.S.2d 947, 949

(1980). Accord Lovisi v. Slayton, 363

F.Supp. 620, 625-26 (E.D.Va.1973), aff'd,

539 F.2d 349 (4th Cir. 1976). The modern

judicial conception of constitutional

privacy originated in Griswold v. Connec-

ticut, 381 U.S. 479, 85 S.Ct. 1678, 14

L-Ed.2d 510 (1965). In Griswold, the

Supreme Court found the existence of an

implicit constitutional right of privacy

in the "“"penumbras" of various constitu-

tional provisions. Writing for the Court,

Justice Douglas declared "that specific

guarantees in the Bill of Rights have

penumbras, formed by emanations from those

guarantees that help give them life and

substance.” Id. at 484, 85 S.Ct. at 1681.

This implicit guarantee of privacy makes

"fully meaningful" the express’ rights

10a

3

contained in the documents. Justice

Goldberg, joined by the Chief Justice and

Justice Brennan, specially concurred "to

emphasize the relevance of [the Ninth]

4

Amendment to the Court's holding.” id.

3 More specifically, Justice Dou-

glas stated that "[vjarious guarantees

create zones of privacy. The right of

association contained in the penumbra of

the First Amendment is one ... [t]he

Third Amendment in its prohibition against

the guartering of soldiers ‘in any house'

in time of peace without the consent of

the owner is another facet of that pri-

vacy. The Fourth Amendment explicitly

affirms the ‘right of people, to be secure

in their persons, houses, papers, and ef-

fects, against unreasonable searches and

seizures.' The Fifth Amendment in its

Self-Incrimination Clause enables the cit-

izen to create a zone of privacy which

government may not force him to surrender

to his detriment. The Ninth Amendment

provides: ‘The enumeration in the Consti-

tution, of certain rights, shall not be

construed to deny or disparage others re-

tained by the people.'”" Id.

4 Justice Goldberg did not believe

that "penumbras" were necessary in Consti-

tutional analysis because the Court had

previously heid that:

ila

at 487, 85 S.Ct. at 1683 (Goldberg, J.,

concurring).

When we first were faced with this

issue of extramartial [sic] sexual pri-

vacy in Warner v. State, 489 P.2d 526, we

were limited in consideration of Supreme

Court cases to Griswold v. Connecticut,

supra. Griswold held, based on the prin-

_Ciples explained above, that the State

could not constitutionally regulate the

distribution of contraceptives to married

4 (Continued )

the Fourteenth Amendment absorbs and

applies to the States those speci-

fics of the first eight amendments

which express fundamental personal

rights. The language and history of

the Ninth Amendment reveal that the

Framers of the Constitution believed.

that there are additional fundamen-

tal rights, protected from govern-

mental infringement, which exist

alongside those fundamental rights

specifically mentioned in the first

eight constitutional amendments.

Id. at 488, 85 S.Ct. at 1683-84.

12a

persons. Certain language in the opinion

indicated that this "right to privacy" was

limited to decisions made, and acts com-

mitted, within the marital relationship.

Justice Douglas had written:

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 inti-

mate to the degree of being sacred.

It is an association that promotes

a way of life, not causes; a harmo-

ny 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 deci-

sions.

Id. at 486, 85 S.Ct. at 1682. We accord-

ingly held that "the United States Supreme

Court, in the landmark case of Griswold

v. State of Connecticut, supra, does not

prohibit the state's regulation of sexual

promiscuity or misconduct between non-mar-

ried person." Warner v. State, 489 P.2d

at 528.

x ;

13a

We are now informed that "the outer

limits" of the right to privacy "have not

been marked by the Court." Carey v. Popu-

lation Servs Int., 431 U.S. 678, 684, 97

S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).

Indeed, Eisenstadt v. Baird, 405 U.S. 438,

92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) indi-

cates to us that the constitutional right

to privacy, which at first appeared to be

family-based, affords protection to the

decisions and actions of individuals out-

side the marriage union. See also Planned

Parenthood v. Danforth, 428 U.S. 52, 96

S.Ct. 2831, 49 L.Ed.2d 788 (1976) (right

to abortion cannot be regulated absent a

compelling state interest). In Eisen-

stadt, the Court banned, as unconstitu-

tional, Massachusetts' regulation of con-

traceptives to Single adults. Although

the Court's holding was based primarily

on equal protection grounds, the Court

l4a

also relied on the right to privacy, and

wrote:

It is true that in Griswold the

right of privacy in question inhered

in the marital relationsuip. Yet

the marital couple is not an inde-

pendent entity with a mind and a

heart of its own, but an association

of two individuals each with a sep-

arate intellectual and emotional

makeup. If the right of privacy

means anything, it is the right of

the individual, married or single,

to be free from unwarranted govern-

mental intrusion into matters so

fundamentally affecting a person as

the decision whether to bear or be-

get a child.

Id. at 453, 92 S.Ct. at 1038. Nor can it

be said that, through the Eisenstadt opin-

ion, the right to privacy is merely ex-

tended to individual decisions regarding

procreative choice. Such a statement

would ignore the Supreme Court's reliance

in Eisenstadt on its earlier opinion in

Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.

1243, 22 L.Ed.2d 542 (1969). In Stanley,

the Supreme Court held that an individ-

15a

ual’'s right to view obscene material in

the privacy of his or her home could not

be regulated by the State. Stanley obvi-

ously did not deal with procreative choice

within or without marriage, but instead

extended the right of privacy to matters

of sexual gratification. In addition to

citing Stanley, the Court, in Eisenstadt,

specifically set out the following quote

from the Stanley opinion:

"([AJlso fundamental is the right to

be free, except in very limited cir-

cumstances, from unwanted governmen-

tal intrusions into one’s privacy.

"'tThe makers of our Constitution un-

dertook to secure conditions favor-

able to the pursuit of happiness.

They recognized the significance of

man’s spiritual nature, of his feel-

ings and of his intellect. They

knew that only a part of the pain,

pleasure and satisfactions of life

are to be found in material things.

They sought to protect Americans in

their beliefs, their thoughts, their

emotions, and their sensations.

They conferred, as against the Gov-

ernment, the right to be let alone-

the most comprehensive of rights and

the right most valued by civilized

16a

man.’ Olmstead v. United States,

277 U.S. 438, 478, 48 S.ct. 564,

572, 72 L.Ed. 944 (1928) (Brandeis,

J., dissenting).”

Eisenstadt v. Baird, supra 405 U.S. at 453

n. 10, 92 S.Ct. at 1038, n. 10, quoting

Stanley v. Georgia, supra 394 U.S. at 564,

89 S.Ct. at 1247.

For the above and foregoing reasons,

we are compelled to hold that our decision

in Warner v. State, supra, was based on

the erroneous premise that the right to

privacy is limited to decisions and acts

arising in the marital relationship. It

now appears to us that the right to pri-

vacy, as formulated by the Supreme Court,

includes the right to select consensual

adult sex partners. Exercise of this

right cannot be proscribed by the State in

the absence of a compelling justification.

Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct.

705, 728, 35 L.Ed.2d 147 (1973). See also

17a

Griswold v. Connecticut, supra 381 U.S. at

497-498, 85 S.Ct. at 1688-1689 (Goldberg,

J., concurring).

We recognize it is the opinion of

many that abnormal sexual acts, even those

involving consenting adults, are morally

reprehensible. However, this natural re-

pugnance does not create a compelling

justification for state regulation of

these activities. The Supreme Court has

determined that merely because the pur-

chase and use of contraceptives by unmar-

ried persons would arouse moral indigna-

tion among broad segments of the commun-

ity, or that the use of pornographic mat-

erials in the privacy of one's own home

would invoke general displeasure, does not —

provide a compelling justification to reg-

ulate either activity. See Eisenstadt v.

Baird, supra, and Stanley v. Georgia,

supra. The State has failed to demon-

A

“

18a

strate that private, consensual acts be-

tween adult persons could significantly

harm society so as to provide a compelling

state interest in the regulation of such

activities. The fact that twenty-two

states have decriminalized private consen-

sual sodomy between adults further illu-

strates that no harm to society is pre-

sently caused by these sexual acts. See

Rivera, Our Straight-Laced Judges: The

Legal Position of Homosexual Persons in

the United States, 30 Hastings L.J. 799,

950-951 (1979).

We stress that our decision today in

no way affects the validity of 21 O.S.

1981, § 886 in its application to bestial-

ity, forced sexual activity, sexual activ-

ity of the underaged, or public or commer-

cial sexual acts. We do not reach the

question of homosexuality since the appli-

cation of the statute to such conduct is

19a

not an issue in this case. Our holding

today is simply to declare unconstitution-

al the application of section 886 to the

facts of this case.

The convictions herein cannot stand

under the principles announced in this

opinion. Accordingly, we hold the judg-

ment and sentence on each count of the

Crime Against Nature must be reversed and

remanded to the District Court for pro-

ceedings not inconsistent with this opin-

ion.

II.

Turning to the remaining count of

Maiming, we find that it must be reversed

as well. Appellant claims he was preju-

diced when the trial court refused his re-

quested instructions on the lesser includ-

ed offenses of simple and aggravated

assault and battery. He claims that in-

20a

structions on these lesser offenses were

justified by his testimony that he had no

intention of injuring the prosecutrix, but

simply lashed out when he awoke and found

her trying to steal money from his pants.

We have previously held that both

simple and aggravated assault and battery

are lesser included offenses of maiming,

and that, in appropriate cases, instruc-

tions as to these lesser offenses should

be delivered to the jury. Savage v.

State, 525 P.2d 1219 (Ok1.Cr.1974). Our

Legislature has defined assault as "any

willful and unlawful attempt or offer with

force or violence to do a corporal injury

to another.” 21 0.S.1981, § 641. Battery |

is defined as "any willful and unlawful

use of force or violence upon the person |

of another." 21 0.S.1981, § 642. An as-

sault and battery becomes aggravated

"(w]hen great bodily injury is inflicted

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21a

upon the person assaulted.” 21 0.S.1981,

§ 646(1). Specific intent is not an ele-

ment of aggravated assault and battery.

State v. Madden, 562 P.2d 1177 (Okl.Cr.

1977). The Legislature has defined Maim-

ing as follows:

Every person who, with premeditated

design to injure another, inflicts

upon his person any injury which

disfigures his personal appearance

or disables any member or organ of

his body or seriously diminishes his

physical vigor, is guilty of maim-

ing.

21 0.S.1981, § 751. We have accordingly

held that a disfiguring injury caused by

another does not constitute Maiming unless

done “with premeditated design to injure

another,” which requires a specific intent

to inflict an injury, although not neces-

sarily the very disfigurement actually

perpetrated. DeArman v. State, 33 Okl.Cr.

79, 242 P. 783 (1926). See also Boulding

v. State, 83 Okl.Cr. 352, 177 P.2d 152

22a

(1947). Accord Perkins & Boyce, Criminal

Law, 240 (3d Ed.1982). Without proof of

specific intent to injure or disfigure,

a charge of Maiming is reduced to aggra-

vated assault and batttery. See Savage v.

State, supra.

In this case, although serious bodily

injury resulted to this victim, the appel-

lant maintained he intended to cause no

injury. This claim was supported by the

testimony of fr. Townsend, who stated that

in H.C.'s situation “any kind of blow

would potentially break those sutures

{from the previous eye surgery] and cause

this kind of injury to have occyrred.”

We find the trial court erred in its

failure to deliver the appellant's re-

guested instruction on the lesser offense

of aggravated assault and battery. It is

clear that the appellant herein assaulted

the victim with his ‘fists, causing great

23a

bodily injury to the eye. We will accord-

ingly reverse and remand for a new trial

on the charge of maiming.

The judgment and sentences on each

count are hereby REVERSED and REMANDED to

the District Court for proceedings not in-

consistent with this opinion.

BRETT, J. concurs.

BUSSEY, J. dissents.

BUSSEY, Judge, dissenting:

I must respectfully dissent. This

Court has long recognized that consent is

not an element of the crime against na-

ture. See, 21 0.S.1981, § 886; Canfield

v. State, 506 P.2d 987 (Ok1.Cr.1973).

Slaughterback v. State, 594 P.2d 780 (Okl.

Cr.1979). Clearly, it is a legislative

function and not a judicial funtion to

amend statutes if a change is to be enact-

ed.

24a

Additionally, I dissent to the rever-

sal of the maiming conviction. Since the

victim lost her eye as a result of the at-

tack, the appellant's actions fall square-

ly within the provisions of 21 0O.S.1981,

§ 751, and the trial court properly denied

the appellant's proferred instructions on

simple and aggravated assault and battery.

Therefore, I am of the opinion that the

judgments and sentences should be af-

firmed.