# Petition for Writ of Certiorari — Oklahoma v. Post > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2065%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 890 ## Text ee eipremc Court, US, FILED + JUN 16 @ay hy , ee eae SLE RK , 85. 2 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 » : - Pa } @ a A: _- a é 7 ’ j é hh, ~ , ox i Vv 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 eh a ne = A a, ars 7.5 E 7 ’ i) 1 iA ‘ a. ot > - 7 pee 8 eat ; 2a t t a a laren 2? | e -* =i | — se oh ee Piece cs 2 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. laze ory Fave? ie ¢ UB « @ oo f>st & 2 Foes os ¢ iz #ideeee Getz vncr y+ 7 P pe 2 - te QeaANSo ff Te, Bee ok * eae tia Taeees Bc™ 3 : . > « ‘y . * ror owt i - + : c > y p oe a 4 a a a 2°) 35 52) “a a4 ., wares faci te! s 7 Aree }% é y ge? 7) Py. f ‘ * . "'; ~ € Pa : . e k »~ ei, 4 i) iby 2 - r =< 4 Fm 2 ; * i 4 tit at Va ' 7 ee | : é 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2065%3A1. Public record. Not legal advice.