Neville v. State

430 A.2d 570, 290 Md. 364, 1981 Md. LEXIS 229

• Court: Court of Appeals of Maryland
• Decided: June 3, 1981
• Docket: [No. 31, September Term, 1980.] [No. 33, September Term, 1980.]
• Status: Published

Opinions

Rodowsky, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 386 infra.

These appeals in criminal cases which were consolidated for argument in this Court question the constitutionality, primarily on privacy and equal protection grounds, of the Maryland perverted practices statute. For the reasons set forth below, we affirm the convictions.

I

Appellant Howard Chester Killy, Jr. (Kelly), then age 18, was tried before a jury in the Ci rcmi Court for Anne Arundel Comity. His prosecution was initiated on the complaint of a 16-year-old female, Pat. A fi-And of Kelly, Ronald Holden (Holden), was tried jointly with Kelly.

Pat testified in substance that she was abducted at knife-point by Kelly and Holden from the Harundale Shopping Center in Glen Rumie on the afternoon of Friday, May 5, 1978. Pat said that she was taken by automobile to an abandoned nike missile site where she was raped by Holden and forced to perform fellatio on Kelly. Both Kelly and Holden took the stand and said Pat asked for a ride in their automobile. Each testified that a variety of two party and three party sexual acts were performed with Pat that afternoon, all with her consent and at her instigation. For purposes of the present appeal it is sufficient to note that Kelly testified Pat performed fellatio upon him, in the presence of Holden, outside of an old metal shed which was at one time used to store acid in connection with the former missile installation. There was also defense evidence concerning an admission made by Pat to an acquaintance that Pat picked up the two defendants and had sex with them, after which they abandoned her and that, in order to get revenge for the abandonment, Pat claimed to be the victim of forced sexual acts. Holden and Kelly testified that they left Pat at the site only after she became enraged because they disparaged the quality of her performance.

The jury found Kelly guilty of committing an unnatural and perverted sexual practice in violation of Md. Code (1957, 1976 Repl. VoL, 1980 Cum. Supp.), Art. 27, § 554.¹ Kelly was acquitted of the charges of first and second degree rape, of first and second degree sexual offenses (Art. 27, §§ 462, 463, 464 and 464A), of common law assault and battery, and of kidnapping (Art. 27, § 337).² By motion supported by an extensive legal memorandum, both filed on the day before trial on the merits commenced, Kelly attacked § 554 as violative of privacy, equal protection, and the prohibition against cruel and unusual punishment. Additionally, exception was taken by Kelly to the refusal to instruct the jury that consent was defensive to the perverted practice charge. This request was predicated on Kelly’s argument that a constitutional right of privacy applied to the facts of his case. Kelly was sentenced to one year, service of the sentence was suspended and he was placed on supervised probation for three years. The conviction was affirmed by the Court of Special Appeals. Kelly v. State, 45 Md. App. 212, 412 A.2d 1274 (1980). We granted certiorari.

The first of three questions presented by Kelly in his petition for certiorari was "[wjhether the imposition of absolute criminal liability for private, consensual sexual conduct infringes a constitutionally protected right of privacy ....” [Emphasis added.] This question encompasses, under Md. Rule 813 a, the issue of whether the admitted sexual conduct was "private” for purposes of the asserted constitutional right. Having exercised our discretion to grant Kelly’s petition and thereby to afford him a discretionary appeal, the case is treated like every other appeal with respect to the issue of "private” conduct. "And, as in every ordinary direct appeal, the rule is well established that an appellate court will normally affirm a trial court on a ground adequately shown by the record, even though that ground was not the one relied upon by the trial court.” Robeson v. State, 285 Md. 498, 503-04, 403 A.2d (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 680, 62 L. Ed. 2d 654 (1980).³

The former missile site at which ilie conduct occurred is approximately two miles south of Fort Smallwood Park and lies east of Fort Smallwood Mead which, in this area, may be considered as running north-south. Fronting on the east side of Fort Smallwood Road is a public school, described as comprised of both a lower school and an upper school. The abandoned nike facility lies behind, or east of, the public school. The distance from Fc rf Smallwood Road to the nike base was estimated to be one-quarter or from one-quarter to one-half mile. A road leads past the public school to the old military compound which is partially fenced and which is used occasionally as a dump. Kelly, Rolden and Pat parked their car near the dumping area and at the foot of a "hill” of unspecified elevation. They got out of the car and drank some beer. Each participant testified that there was a pickup track parked in the vicinity. Two men were scavenging cinder blocks and loading them in the track. Kelly estimated the pickup truck to be 60 to 70 feet from where they parked. Holden testified that the two men were close enough to enable Mm to hear their conversation.

On the other side of the Mil from the point where the participants’ car was parked is a concrete slab on which sits the rusted out metal shed outside of which and in which the sexual activity took place. To the east of the metal shed is the home of the Bolander family. It was identified as also being the Stony Creek Rod and Gun Club. This house is approximately one-half block from the metal shed. The shed is not visible from the Bolander house because the intervening area is wooded. However, a path approximately three feet wide runs from the Bolander home, past the shed, toward the public school. The shed is visible from the path. Mrs. Bolander has seen the shed while using the path to pick up her 9-year-old daughter who attends the Fort Smallwood School. Also approximately one-half block from the metal shed, but on the other side of the path from the shed, is the skeet shooting area of the rod and gun club. On the afternoon in question, Mrs. Bolander’s 9-year-old daughter and her son ⁴ were searching in the area of the skeet traps for the daughter’s mislaid wallet. The 9-year-old daughter came upon Pat after the occurrence and brought her to the Bolander home where Mrs. Bolander telephoned the police.

II

The prosecution in No. 31 was based upon visual observations by Patrolman Dean Brewer of the Westminster Police Department. Gary Earl Neville (Neville), age 42, was charged in the Circuit Court for Carroll County with indecent exposure and, under § 554, with perverted sexual practice. On Saturday, August 12, 1978, at approximately 3:00 o’clock in the afternoon, Officer Brewer observed Neville and a 27-year-old female, Susan, walking along the railroad tracks which run parallel to Railroad Avenue within the municipal limits of Westminster. The railroad tracks run generally north-south. Officer Brewer had information that Susan had been engaging in perverted practice activities. Anticipating the site to which the two might be going, he drove his marked police car to a furniture store east of, and in the vicinity of, a small wooded area which lies east of the railroad tracks. Officer Brewer proceeded on foot down an incline and took a position approximately 25 feet from a clearing in the wooded area. This clearing, which was four to five feet wide, had pieces of clothing scattered about on the ground. The wooded area was half-moon shaped. Its flat edge ran along the side of the railroad tracks for 75 to 100 feet. There were approximately 40 trees in the wooded area. It was overgrown with sticker bushes of about waist height. A number of paths ran through the wooded area to the clearing, including a path which ran from the railroad tracks. The clearing was approximately 10 to 15 feet from the railroad tracks and at an elevation approximately four feet higher than the tracks. Officer Brewer arrived at the area in advance of Neville and Susan. He observed them leave the railroad tracks, walk into the wooded area and lie down on the clothing. The officer moved to a point approximately 15 feet from the subjects and remained in a crouched or kneeling position so as not to be observed. Susan performed fellatio on Neville, after which Officer Brewer arrested both.

Neville was employed by the Rescue Mission in Westminster. While Neville and Susan were in the clearing, two men from the Rescue Mission walked down the railroad tracks to a shopping center and walked back. This route took them within 15 feet of the clearing. The railroad tracks are used by the people at the Mission. By Neville’s admission, the tracks are used by a "lot of other people ... too,” because "tilt's close to the shopping center.”

Neville was found guilty only on the perverted practices charge. He was fined $10 and costs, and payment of the fine and costs was suspended. We granted certiorari prior to the consideration by the Court of Special Appeals of Neville’s appeal.

Ill

There is no universally recognized and accepted definition of the concept of privacy in the sense in which appellants invoke it.⁵ We are not here concerned with matters relating to the confidentiality of personal information, nor exclusively with solitude, but rather with concepts of liberty of the individual which are considered to be so fundamental as to be protected from unwarranted governmental interference even though express recognition of the right is not found in the words of a written constitution. Whalen v. Roe, 429 U.S. 589, 598-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64, 73 (1977). We propose no definition here. Rather, like the scientist, we can best identify the phenomenon by the circumstances under which it has been authoritatively reported to exist after a test conducted in the laboratory of a case which applies the right to actual facts. The Supreme Court recently catalogued its decisions which implicate the right of privacy. While the catalogue is perhaps incomplete, it embraces the decisions principally relied upon by the appellants in the instant cases.

Although "[t]he Constitution does not explicitly mention any right of privacy,” the Court has recognized that one aspect of the "liberty” protected by the Due Process Clause of the Fourteenth Amendment is "a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Roe v. Wade, 410 U.S. 113, 152 [93 S. Ct. 705, 726, 35 L. Ed. 2d 147] (1973). This right of personal privacy includes "the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 [97 S. Ct. 869, 876, 51 L. Ed. 2d 64] (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions "relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010] (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 [62 S. Ct. 1110, 1113-1114, 86 L. Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454 [92 S. Ct. at 1038-1039]; id., at 460, 463-465 [92 S. Ct. at 1042, 1043-1044] (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S. Ct. 438, 442, 88 L. Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S. Ct. 571, 573, 69 L. ] (1925); Meyer v. Nebraska [262 U.S. 390, 399 (1923)] [43 S. Ct. 625, 67 L. Ed. 1042].” Roe v. Wade, supra, at 152-153 [93 S. Ct. at 726]. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 [94 S. Ct. 791, 796-797, 39 L. Ed. 2d 52] (1974). [Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675, 684 (1977).]

As recently as 1976 this Court observed that it is "clear that the Supreme Court has yet to extend the right of privacy much beyond the context of intimate relationships.” Montgomery Co. v. Walsh, 274 Md. 502, 513, 336 A.2d 97, 105 (1975), appeal dismissed, 424 U.S. 901, 96 S. Ct. 1091, 47 L. Ed. 2d 306 (1976). See also Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 272, 329 A.2d 35, 41-42 (1974).

The Supreme Court’s decision in Carey6 makes plain that the Court considers it to be an open question whether the right of privacy applies to all of the combinations and permutations which can fall under the general heading of "adult sexual relations.” Following a reference to the compelling state interest test for the justification of certain state regulation and to the requirement that such a regulation must be narrowly drawn to express only the legitimate state interests at stake, as those concepts were applied in Roe v. Wade, the Court inserted the following footnote:

Contrary to the suggestion advanced in Mr. Justice Powell’s opinion, we do not hold that state regulation must meet this standard "whenever it implicates sexual freedom,” ... or "affectls] adult sexual relations,” ... but only when it "burden[s] an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision.” ... As we observe below, "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,” n.17, infra, and we do not purport to answer that question now. [Carey v. Population Services International, supra, 431 U.S. at 688 n.5, 97 S. Ct. at 2018 n.5, 52 L. Ed. 2d at 687 n.5.][⁷]

The Supreme Court’s careful limitation to the facts before it of a holding that a right of privacy applies, which is manifested in Carey, was perceived by this Court in earlier Supreme Court privacy decisions. In Montgomery Co. v. Walsh, supra, we referred to the emphasis in Roe v. Wade "that only personal rights that can be deemed 'fundamental’ or 'implicit in the concept of ordered liberty’ are included in the constitutional guarantee of personal privacy” and we refer to the language of Eisenstadt v. Baird which speaks of freedom " 'from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’” We discerned that if "these pronouncements hint that the constitutional right of privacy is of limited scope and not to be lightly applied, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), makes it explicit.” 274 Md. at 512-13, 336 A.2d at 105.

Slaton was the review of a Georgia decision which held that an injunction could issue to prohibit the exhibition in an adult movie theatre of films depicting scenes of simulated fellatio, cunnilingus and group sexual intercourse. The theatre argued, citing Stanley v. Georgia, 394 U.S. 557, 89 , 22 L. Ed. 2d 542 (1969), that state regulation of access to obscene material by consenting adults violates the constitutionally protected right to privacy enjoyed by its customers. A five member majority of the Court, referring to " 'only personal rights that can be deemed "fundamental” or "implicit in the concept of ordered liberty”,’ ” stated that this "privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing.” Slaton, supra, 413 U.S. at 65, 93 S. Ct. at 2639, 37 L. Ed. 2d at 462. In rejecting an argument seeking an expansion to Slaton’s facts of the privacy right recognized in Stanley, the Supreme Court said:

If obscene material unprotected by the First Amendment in itself carried with it a "penumbra” of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home,” which was hardly more than a reaffirmation that "a man’s home is his castle.” . . . Moreover, we have declined to equate the privacy of the home relied on in Stanley with a "zone” of "privacy” that follows a distributor or consumer of obscene materials wherever he goes. [cit. om.] The idea of a "privacy” right and a place of public accommodation are, in this context, mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a "live” theater stage, any more than a "live” performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue. [413 U.S. at 66-67, 93 S. Ct. at 2640, 37 L. Ed. 2d at 462-63.]

In a footnote to the foregoing passage, the Court recognized the distinction between the solitude aspects of privacy and its application to intimate relationships.

The protection afforded by Stanley v. Georgia ... is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concern with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. . .. Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage. [Emphasis supplied.]

Professor Tribe has advanced the theory that harms existing only in the mind of the beholder do not suffice to support state action which infringes on a right of privacy. In focusing on possible limits of that principle he has stated that "perhaps the most basic is that, when the affront seems offensive enough in relation to the importance of the choice to the person making it, the community may require at least that the choice be made in some less obtrusive way — at home, perhaps, or a nudist camp, but not on the main street at high noon.” L. Tribe, American Constitutional Law 984 (1978). See also Richards, Unnatural Acts and The Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281, 1333-34 (1977).

A possible vehicle for addressing directly the intersection of state power and personal sexual conduct was presented to the Supreme Court in the appeal from Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), a decision of a three judge district court⁸ which sustained the constitutionality of the Virginia sodomy statute. The challenge was by male plaintiffs who averred, inter alia, that the statute unjustifiably invaded their rights of privacy when applied to active and regular homosexual relations with another adult male, consensually and in private. They sought to enjoin allegedly threatened prosecution for violation of that law. The district court decision was summarily affirmed. 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976).

It is clear from the foregoing review that there is no holding by the Supreme Court that the right of privacy applies to conduct of the typo prohibited by Md. Code, Art. 27, § 554. Petitioner Kelly, however, contends that the rationale of the Court’s privacy decisions to date necessarily leads to the conclusion that "private consensual sexual conduct” is constitutionally immunized from criminal liability. Neville asserts that § 554 is unconstitutional "as applied to consenting adults of the opposite sex acting in private.” ⁹ While the questions presented in the petitions for certiorari have characterized the conduct here as being "private,” and while that characterization may well be properly applied to the locations here involved in other contexts, the private nature of particular conduct in a given location for constitutional right of privacy purposes is a matter of degree determined by all of the circumstances. Here, where the conduct, even if consensual, is fellatio, and even if we assume, argwmdo, that constitutional personal autonomy could under some circumstances protect that sexual act, we do not believe that constitutional personal autonomy prohibits enforcement of § 554 under the facts of the present cases.

After the Griswold decision, criminal statutes which flatly and in terms without exception prohibit fellatio have been frequently challenged on privacy grounds. The clear majority of consensual fellatio cases which have considered arguments based on personal autonomy have looked to the location and other circumstances to determine if any right of privacy could apply. The argument has been rejected in Connor v. Hutto, 516 F.2d 853, 855 (8th Cir.), cert. denied, 423 U.S. 929, 96 S. Ct. 278, 46 L. Ed. 2d 257 (1975) ("The 'right of privacy’ rationale stressed by appellant has not been extended by the [Supreme] Court to include the right to engage in the conduct for which appellant was convicted here, namely, sodomy in a car parked on a public highway.”); Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. denied, 416 U.S. 905, 94 S. Ct. 1610, 40 L. Ed. 2d 110 (1974) (11 p.m. in car parked on the well lighted lot of a public rest and tourist information facility adjacent to an interstate highway); Connor v. State, 253 Ark. 854, 490 S.W.2d 114, appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230 (1973) (same facts as Connor v. Hutto, supra); People v. Baldwin, 37 Cal. App. 3d 385, 112 Cal. Rptr. 290 (1974) (3:40 a.m. in public restroom within view of a plain clothes policeman); People v. Parker, 33 Cal. App. 3d 842, 109 Cal. Rptr. 354 (1973) (professional actors filming pornographic movies); People v. Drolet, 30 Cal. App. 3d 207, 105 Cal. Rptr. 824 (1973) (live performance at San Francisco night club); Stewart v. United States, 364 A.2d 1205 (D. C. App. 1976) (1:15 a.m. along a bank of the C&O Canal near 30th and M Streets, (N.W.); United States v. Buck, 342 A.2d 48 (D. C. App. 1975) (1:30 a.m. in a public wooded area at 29th Street and Pennsylvania Avenue, N. W.); United States v. McKean, 338 A.2d 439 (D. C. App. 1975) (in cubicles of a "health club”; immaterial whether doors of cubicles were open or closed because of the nature of the particular establishment); Harris v. United States, 315 A.2d 569 (D. C. App. 1974) (en banc) (same "health club” as in McKean, supra, held to be a disorderly house open to the public because membership could be obtained with minimum formality and modest fees); and State v. Jarrell, 24 N.C. App. 610, 211 S.E.2d 837, cert. denied and appeal dismissed, 286 N.C. 725, 213 S.E.2d 724 (1975) (public restroom in public park). We hold that Md. Code, Art. 27, § 554 was constitutionally applied to each petitioner. Each petitioner engaged in this intimate sexual activity during daylight hours in a place which was out of doors, which was in a well populated community, and which was equally as accessible to uninvited other persons as it was to petitioner.¹⁰

Kelly asserted at oral argument that the issue of whether his conduct was private was not tried and decided by the trial court. Md. Rule 885. The contention is not supported by the record. In his memorandum in support of his motion for dismissal, Kelly argued that the missile base was a "secluded spot, far off the beaten path” so that the parties had a reasonable expectation of privacy. The motion was denied.

Neville additionally advanced at oral argument a contention based on his acquittal of a companion charge of indecent exposure arising out of the same incident. He had argued to the trial court that the indecent exposure charge should fall as a matter of law because the conduct did not occur in a public place. The trial court, sitting non-jury, acquitted Neville on the indecent exposure count by reference to Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 579-80 (1957). It reasoned that an essential element of the crime of indecent exposure was that the exposure must be seen or be likely to be seen by a casual observer and then held that Officer Brewer, who was "required to literally stalk the Defendant... was not a 'casual observer’ as defined in Messina.” ¹¹ At the same time the trial court rejected Neville’s argument based on a constitutional right of privacy. Even if it is assumed that the facts in Neville’s case did not establish all of the elements of indecent exposure, the legislatively created crime of perverted practice under § 554 does not, by its terms, include an element relating to the type of place where the conduct must occur in order for it to be statutorily prohibited. A greater degree of circumstances of privacy than is presented here would be required in order to support the private conduct element of an argument that Neville’s fellatio was not criminal under § 554 because it was the exercise of a constitutionally protected right of personal autonomy.

Similarly, because § 554 makes it a violation of the criminal law of Maryland to place one’s sexual organ in the mouth of any other person, whether the act is voluntary or involuntary is immaterial at the statutory level of analysis. Gooch v. State, 34 Md. App. 331, 367 A.2d 90 (1976), cert. denied, 280 Md. 735 (1977). Kelly argues that the trial court erred in refusing to instruct the jury that consent on the part of Pat was defensive to the charge that he violated § 554. The foundation for this requested instruction necessarily lies in Kelly’s constitutional argument which would prevent literal application of § 554 to sexual conduct which is the exercise of rights of personal autonomy between consenting persons in private. Inasmuch as the claimed constitutional right would not apply to the circumstances in Kelly’s case, even if the fellatio were consensual,¹² there was no error in refusing the requested instruction.

Kelly next contends that § 554 is facially unconstitutional because of overbreadth. It is said that the statute by its terms can embrace private sexual activity between consenting adults, a result said to be beyond the police power of the State as limited by due process. Kelly submits that this Court should either strike down § 554 in its entirety, or construe § 554 so as to exclude from its application sexual conduct of consenting adults in private. Even if we were to assume that § 554 could not constitutionally be applied in certain situations, that is not a basis for voiding it in whole or in part where, as here, it is validly applied to the facts before the court. Statutes prohibiting oral sodomy, which could be read to include conduct between consenting adults, have not been struck down where the statute was validly applied to the defendant because his conduct was not in private,¹³ or took place in prison,¹⁴ or was with a minor¹⁵ or was accomplished by force.¹⁶

Neville’s argument that he was only engaged in a form of birth control is a variation on the scenario of copulation during political dialogue in Times Square and is not applicable to the circumstances of his case.

IV

The equal protection contention of Kelly is twofold. He says that his conviction is discriminatory vis-á-vis married persons. Both he and Neville also argue that the absence from Maryland law of a criminal sanction for fornication makes § 554 invalid.

The outline of the argument based on comparison to married persons is that § 554 makes criminal oral sex between persons who are lawfully married to each other but that such a prohibition violates their privacy rights.¹⁷ This, in turn, is claimed to result in two classes of persons under the statute, married persons who may not be prosecuted, and unmarried persons who are subject to prosecution. Such a distinction, Kelly states, is offensive to equal protection.¹⁸

This argument in essence asks us to read into § 554 an exception based upon one line of cases, only to invalidate the statute, as so construed, under another line of cases. However, we perceive no violation of equal protection. Were a married couple to be prosecuted for engaging in perverted practice at a place and under circumstances similar to those of Kelly’s case, we are satisfied, for the reasons stated in Part III of this opinion, that marriage would not be a defense and that any possible right of privacy which the couple might otherwise have would not apply. There is no deprivation of equal protection of the law if "all persons who are in like circumstances or affected alike are treated under the laws the same ....” Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 60, 300 A.2d 367, 383 (1973).

It is further asserted that petitioners’ rights to equal protection are violated by § 554 because a person who fornicates, under circumstances otherwise similar to those here, is not subject to criminal prosecution for that sexual conduct. We consider first the standard for review. Neville rests on the rational relation test. Kelly seeks strict scrutiny and, only alternatively, a rational basis test. Inasmuch as we have already held that no fundamental right of privacy was infringed in these cases, the basis for contending for a strict scrutiny standard is lacking. After argument in the instant cases Attorney General of Maryland v. Waldron was decided, 289 Md. 683, 426 A.2d 929 (1981). There Judge Digges distilled from the Supreme Court decisions and elucidated for this Court a third category of equal protection analysis which requires a fair and substantial relation between the statute under consideration and the legitimate objective of the police power for which it was enacted. This standard applies "when important personal rights, not yet held to merit strict scrutiny but deserving of more protection than a perfunctory review would accord, are affected by a legislative classification,” in which case "a court should engage in a review consonant with the importance of the personal right involved.” Id. at 713, 426 A.2d at 946. The relatively open fellatio in these cases can hardly be the exercise of an important personal right.

The rational relation test applies. Under that test, "[t]he distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.” McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739, 745 (1969). The Supreme Court "has made clear that a legislature need not 'strike at all evils at the same time or in the same way’ . .. .” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715, 725, 66 L. Ed. 2d 659, 670 (1981) (quoting Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S. Ct. 570, 571,79 L. Ed. 1086 (1935)). One valid objective of a perverted practices or sodomy statute is the protection of public morality. Note, The Constitutionality of Laws Forbidding Private Homosexual Conduct, 72 Mich. L. Rev. 1613, 1631 (1974); see also Paris Adult Theatre I v. Slaton, supra, 413 U.S. at 59-60 [93 S. Ct. at 2636, 37 L. Ed. 2d at 458] ("[t]here is a 'right of the Nation and of the States to maintain a decent society. ...’ Jacobellis v. Ohio, 378 U.S. 184, 199 [84 S. Ct. 1676, 1684, 12 L. Ed. 2d 793] (1964) (dissenting opinion [of Chief Justice Warren])”). No more is required for § 554 to be valid than that the General Assembly could reasonably have concluded that where the sexual activity is fellatio as contrasted with vaginal copulation, there is a greater risk of a member of the public being affronted by coming upon a quick and casual sexual liaison in a place equally as accessible to the uninvited and unwilling viewer as to the participants.

Petitioners’ argument is much like one which has been advanced in marihuana cases where defendants have argued that equal protection of the laws has been denied because a legislative body has not also proscribed possession or use of alcohol or tobacco. The argument has regularly been rejected on the ground that a legislative body is free to recognize degrees of harm, and may confine its restrictions to instances where it determines the need for them is clearest. E.g., United States v. Bergdoll, 412 F. Supp. 1308, 1313 (D. Del. 1976); Ravin v. State, 537 P.2d 494, 512 (Alaska 1975); State v. Renfro, 56 Hawaii 501, 542 P.2d 366, 369-70 (1975); Ill. NORML, Inc. v. Scott, 23 Ill. Dec. 303, 66 Ill. App. 3d 633, 383 N.E.2d 1330, 1336 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898, 905 (1969); State ex rel. Zander v. District Court, 591 P.2d 656, 661 (Mont. 1979) and State v. Smith, 93 Wash. 2d 329, 610 P.2d 869, 876, cert. denied, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980).

V

Finally, petitioner Kelly invokes the prohibition against cruel and unusual punishment of the Eighth Amendment of the United States Constitution and argues that Art. 27, § 554 violates two of its aspects. First, Kelly, citing Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), contends that the amendment’s substantive limitations on what may be made criminal forbid punishing private sexual expression. The Supreme Court, however, has admonished that this prong of the eighth amendment is "one to be applied sparingly,” Ingraham v. Wright, 430 U.S. 651, 667, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711, 728 (1977), lest courts become the ultimate arbiters of the standards of criminal responsibility. Moreover, Robinson’s interpretation of the cruel and unusual punishment clause has not been applied beyond the facts of that case. There the Supreme Court held that a statute that made it a crime to "be addicted to the use of narcotics” inflicted cruel and unusual punishment. Subsequently, in Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254, rein denied, 393 U.S. 898 (1968) a plurality of the court held that a chronic alcoholic could be convicted for public drunkenness consistent with the eighth amendment’s proscriptions. Robinson was said to prohibit punishment only for "mere status” and in the absence of some actus reus. Id. at 532-33, 88 S. Ct. at 2154, 20 L. Ed. 2d at 1267-68. The State here has not attempted to punish "mere status,” but has imposed a sanction for behavior it deems harmful or offensive to the sensibilities of a large segment of the community. This it is entitled to do under the Eighth Amendment to the United States Constitution.

Second, Kelly, who was placed on three years supervised probation after the imposition of one year imprisonment was suspended, also contends that exposure to ten years imprisonment (the maximum imprisonment under § 554) for committing a perverted practice is grossly disproportionate to the severity of the crime and therefore is cruel and unusual under U.S. Const, amend. VIII. See Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910). In Delnegro v. State, 198 Md. 80, 89-90, 81 A.2d 241, 246 (1951) this Court disclaimed "any right to oppose the judicial power against the legislative power to define crimes and to fix their punishment, except where the power of the Legislature encounters in its exercise a constitutional prohibition, and in such a case an imperative duty is invoked.” In Kelly’s case the actual punishment imposed was well below the statutory maximum and affords no basis for relief. Streat v. State, 239 Md. 694, 211 A.2d 709 (1965); Apple v. State, 190 Md. 661, 668, 59 A.2d 509, 512 (1948).

For the foregoing reasons the judgments are affirmed.

Judgment of the Circuit Court for Carroll County in No. 31, Neville v. State, affirmed.

Appellant to pay the costs.

Judgment of the Court of Special Appeals in No. 33, Kelly v. State, affirmed.

1 . The statute in pertinent part provides:

Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.

2 . Holden was likewise convicted only on the perverted practice charge, but has not appealed.

3 . Similarly in No. 31, Neville v. Slate, the question presented in the petition for certiorari was whether "Article 27, § 554 [is] unconstitutional as applied to consenting adults of the opposite sex acting in private.”

4 . There are two other Bolander children in addition to the 9-year-old daughter. Their ages were 13 and 15 at the time of trial. The record does not disclose the age of the son referred to.

5 . As briefed and argued, appellants’ arguments are predicated upon the Constitution of the United States. No special argument is advanced based upon provisions of the Constitution or Declaration of Rights of Maryland.

6 . Carey invalidated a New York statute which made it criminal for any person to sell or distribute contraceptives to persons under 16, for one other than a licensed pharmacist to distribute contraceptives to persons 16 or over and for anyone, including licensed pharmacists, to advertise or display contraceptives.

7 . The court obviously took pains to insert the above-quoted disclaimer. Footnote 17 referred to appears in part IV of the opinion. Only four Justices joined in part IV. However, the above-quoted note, which is partially duplicative of note 17, is inserted in part III of the opinion in which 6 Justices joined.

8 . Opinion by Senior Circuit Judge Bryan, joined by District Judge Lewis, with District Judge Merhige dissenting.

9 . The differences in the scope of the claimed right as expressed by the present petitioners highlight some of the factual variations that may arise. These include the type of sexual conduct, the legal status of each participant, the number of the participants, their sex and their legal relationship, if any, to one another, in addition to the place where the conduct occurred.

10 . We need not address the State’s argument, applicable to Kelly, which is based upon the presence of Holden and on the opinion of a divided en banc court in Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied sub nom. Lovisi v. Zahradnick, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976). In that case habeas corpus relief was denied to a husband and wife who engaged in fellatio in the bedroom of their home in the presence of an invited male third party who had responded to the couple’s magazine advertisement. It was held that the presence of the onlooker dissolved the couple’s reasonable expectation of privacy. But see Eichbaum, Lovisi v. Slayton: Constitutional Privacy and Sexual Expression, 10 Colum. Human Rights L. Rev. 525, 537-38 (1978-79), and Note, 'The Marital Right of Privacy Does Not Protect a Husband and Wife Performing Sodomy in the Presence of a Third Person, 45 Geo. Wash. L. Rev. 839 (1977).

11 . The indecent exposure charge is not before us and we express no opinion on this application of Messino.

12 . By assuming, arguendo, a federal constitutional right of privacy applicable under some circumstances to fellatio, we do not imply, from the facts or arguments in Kelly’s case, any opinion as to a minimum age at which a person might first become constitutionally protected to engage in this particular sexual conduct.

13 . People v. Baldwin, supra; Stewart v. United States, supra; Harris v. United States, supra; United States v. McKean, supra; United States v. Buck, supra and State v. Jarrell, supra. See also Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970), vacated on other grounds, 401 U.S. 989, 91 S. Ct. 1221, 28 L. Ed. 2d 526 (1971) as to one plaintiff arrested for sodomy in a public rest room.

14 . United States v. Brewer, 363 F. Supp. 606 (M.D. Pa.), aff’d mem., 491 F.2d 751 (3d Cir. 1973), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 40 L. Ed. 2d 768 (1974); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (Ct. App. 1971). See People v. Frazier, 256 Cal. App. 2d 630, 64 Cal. Rptr. 447 (1967).

15 . State v. Worthington, 582 S.W.2d 286 (Mo. App. 1979); Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969).

16 . Swikert v. Cady, 381 F. Supp. 988 (E.D. Wis. 1974), aff’d mem., 513 F.2d 635 (7th Cir. 1975); People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973); State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976); State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977); Jones v. State, 55 Wis. 2d 742, 200 N.W.2d 587 (1972); and Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, 28 L. Ed. 2d 643, reh. denied, 403 U.S. 912, 91 S. Ct. 2203, 29 L. Ed. 2d 690 (1971). See also Byrd v. State, 65 Wis. 2d 415, 222 N.W.2d 696 (1974).

17 . A number of courts have held, or strongly implied, that the general prohibition of a perverted practices or oral sodomy statute cannot be applied to consenting married persons acting with each other in private, based on the constitutional right of privacy. See Lovisi v. Slayton, supra; Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847, 89 S. Ct. 132, 21 L. Ed. 2d 118 (1968); Doe v. Commonwealth’s Att’y for City of Richmond, supra; Dixon v. State, 256 Ind. 266, 268 N.E.2d 84 (1971); State v. Elliott, 89 N.M. 305, 551 P.2d 1352 (1976); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979), appeal dismissed, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980); Canfield v. State, 506 P.2d 987 (Okla. Cr. App. 1973), appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230, reh. denied, 414 U.S. 1138 (1974); Warner v. State, 489 P.2d 526 (Okla. Cr. App. 1971); State v. Mattera, R.I., 415 A.2d 176 (1980); State v. Santos, R.I. , 413 A.2d 58 (1980); Lee v. State, 505 S.W.2d 816 (Tex. Cr. App. 1974); Turner v. State, 497 S.W.2d 593 (Tex. Cr. App. 1973); Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, 28 L. Ed. 2d 643 (1971).

18 . The highest courts of at least two states have struck down on equal protection grounds an oral sodomy statute which on its face excluded from the prohibition persons married to each other. People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert. denied, 49 U.S.L.W. 3864 (U.S. May 19, 1981) (Nos. 80-1634, 80-1710); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980).