Aldo Mario Lovisi and Margaret Lovisi v. A. E. Slayton, Jr., Superintendent, Leake Parrish, Superintendent

539 F.2d 349, 1976 U.S. App. LEXIS 11384

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 12, 1976
• Docket: 73-2337
• Status: Published

Opinions

HAYNSWORTH, Chief Judge.

The petitioners in this habeas corpus proceeding, Aldo and Margaret Lovisi, husband and wife, were convicted in the state court of sodomy with each other in violation of Va.Code Ann. § 18.1-212.¹ They challenged the constitutionality of the statute, as applied to them, through the state court system and then sought federal habeas corpus relief. After a hearing, the. district judge concluded that the Lovisis had waived their constitutional right to privacy in their marital conduct and, consequently, their right to contest their state convictions of sodomy with one another by carelessly exposing erotic photographs to Mrs. Lovisi’s young daughters. Lovisi v. Slayton, 363 F.Supp. 620 (E.D.Va.1973). We affirm.

From time to time the Lovisis had placed advertisements in a magazine, “Swinger’s Life,” in which they sought contact with others interested in erotic sexual experiences. Earl Romeo Dunn answered one such advertisement, and the three met together on three occasions. The last occasion was in the Lovisis’ home in Virginia Beach, Virginia. The three engaged in sexual activity in the Lovisis’ bedroom, during which Margaret Lovisi performed fellatio upon her husband and upon Dunn. Polaroid pictures were made of this activity, and Mrs. Lovisi’s daughters by a former marriage, then 13 and 11 years old, testified that they were present in the bedroom at the time, described what they saw and testified that they took the Polaroid pictures. Dunn² and Lovisi denied the presence of the young girls and testified that they took the pictures, sometimes with the aid of a time-delay device.

The general verdict of guilty in the state court did not resolve the dispute in the testimony about the presence of the young girls and their taking the pictures. The district judge was disinclined to accept the disputed testimony of the girls, but he did find that the Lovisis had relinquished their right of privacy by carelessly exposing pictures of their sexual activity to the girls. The entire matter had come to light when one of the girls appeared in school with a picture, subsequently destroyed, said to have been of her and of an adult male, both completely unclothed. This resulted in the execution of a search warrant, and the policeman testified that hundreds of erotic pictures were found in the house. Lovisi, however, testified that the pictures taken of himself and his wife and their companions were kept in a box in a gun cabinet which, as described by him, was quite insecure, and these were among the pictures seized by the police.

The Constitution recognizes a right of privacy with respect to those rights regarded as “fundamental” or “implicit in the concept of ordered liberty.” Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The personal intimacies of marriage, the home, procreation, motherhood, childbearing and the family have been held “fundamental” by the Supreme Court and, hence, have been encompassed within the protected rights of privacy.³ We may thus assume that the marital intimacies shared by the Lovisis when alone and in their own bedroom are within their protected right of privacy. What they do in the privacy of the marital boudoir is beyond the power of the state to scrutinize. The question we face, however, is whether they preserve any right of privacy when they admit others to observe their intimacies.

Married couples engage in acts of sexual intimacy. That they do is no secret. Though they converse with friends or write books about their sexual relations, recounting in explicit detail their own intimacies and techniques, they remain protected in their expectation of privacy within their own bedroom. State law protects them from unwelcome intruders, and the federal constitution protects them from the state in the guise of an unwelcome intruder.

What the federal constitution protects is the right of privacy in circumstances in which it may reasonably be expected.⁴ Once a married couple admits strangers as onlookers, federal protection of privacy dissolves. It matters not whether the audience is composed of one, fifty, or one hundred, or whether the onlookers pay for their titillation. If the couple performs sexual acts for the excitation or gratification of welcome onlookers, they cannot selectively claim that the state is an intruder. They possess the freedom to follow their own inclinations in privacy, but once they accept onlookers, whether they are close friends, chance acquaintances, observed “peeping Toms” or paying customers, they may not exclude the state as a constitutionally forbidden intruder.

The answer to the question when the right of privacy is lost cannot turn upon numbers, preserved, if there is one onlooker or two, but not if there are three, or preserved if there are ten, but not if there are eleven. Nor should it turn upon the fact that the onlookers, however many, are not only passive observers but are participants themselves in sexual activity, some of it with one or more of the partners to the marriage. In either such event, the married couple has welcomed a stranger to the marital bedchamber, and what they do is no longer in the privacy of their marriage.

The presence of the onlooker, Dunn, in the Lovisis’ bedroom dissolved the reasonable expectation of privacy shared by the Lovisis when alone. Hence, we affirm the district court’s refusal to issue the writ.

AFFIRMED.

ADDENDUM

After this opinion was prepared and circulated, but before it was filed, the Supreme Court summarily affirmed a decision of a statutory three-judge court dealing with this same statute as applied to adult homosexuals alleging that they were engaged in homosexual activity in private. Doe v. Commonwealth’s Attorney for City of Richmond, E.D.Va., 403 F.Supp. 1199, affirmed,-U.S. -, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976).

In upholding the statute as applied to homosexual acts between two consenting adults in private places, the Supreme Court necessarily confined the constitutionally protected right of privacy to heterosexual conduct, probably even that only within the marital relationship. At least it reinforces our conclusion that the oral sexual activity of the Lovisis in the presence of Dunn and a camera was not within the area of the constitution’s protection.

1 . Section 18.1-212. Crimes against nature. — If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years.

2 . Dunn testified for the prosecution. His participation in the incident, however, resulted in his deportation to his native Jamaica.

3 . Cf. Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); id., at 460, 463-465, 92 S.Ct. 1029 (White, J. concurring); Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Loving v. Virginia, 388 U.S. 112, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

4 . Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 & n. 15, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Roe v. Wade, 410 U.S. 113, 154-155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Parker, 33 Cal.App.3d 842, 109 Cal.Rptr. 354, 358 (1973); Chesebrough v. State, 255 So.2d 675, 679 (Fla. 1971).