State v. Bateman

547 P.2d 6, 113 Ariz. 107, 1976 Ariz. LEXIS 241
CourtArizona Supreme Court
DecidedMarch 10, 1976
Docket3360-PR, 3392-PR
StatusPublished
Cited by61 cases

This text of 547 P.2d 6 (State v. Bateman) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bateman, 547 P.2d 6, 113 Ariz. 107, 1976 Ariz. LEXIS 241 (Ark. 1976).

Opinions

HAYS, Justice.

We accepted the petitions for review in these cases to determine whether ARS § 13-651 and § 13-652 proscribing sodomy and lewd and lascivious acts are constitutional. The acts complained of took place between two married individuals in one case, State v. Bateman, and 'between two individuals, one married but not to the other, single person, in the second case, State v. Callaway. Mearion Ray Bateman and Willie Edward Callaway were each convicted of one count of sodomy and one count of lewd and lascivious acts. Bate-man renewed a prior motion to dismiss, arguing that the statutes were unconstitutional, and this motion was granted. The State appealed in that case, and the defendant appealed in the other case. The Court of Appeals affirmed the trial judge’s order dismissing the case against Bateman and reversed the conviction of Callaway. State v. Bateman, 25 Ariz.App. 1, 540 P.2d 732 (1975); State v. Callaway, 25 Ariz.App. 267, 542 P.2d 1147 (1975). The opinions of the Court of Appeals are vacated. We consolidated the petitions for purposes of deciding these issues.

I. STANDING

The first issue is the standing of Bateman and Callaway, hereinafter referred to as the defendants, to challenge these statutes as unconstitutional. The jury in the case against Bateman was instructed that consent is a defense to the acts alleged. The jury in Callaway was not. In both cases, the question of consent of the other person was raised and was a valid issue from the records before us.

If the defendants are not given the standing to raise the question of the constitutionality of these statutes as they pertain to consenting adults, they would be prohibited from raising consent as a defense to their alleged criminal activities. This is unlike the situation of a defendant asserting the rights of a purely hypothetical third party to invalidate an entire statute correctly applied as to him. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed. 2d 524 (1960). This is more in accord with an exception to the Raines doctrine that the individual may assert a right that cannot otherwise be raised and protected. United States v. Brewer, 363 F.Supp. 606 (M.D.Pa.1973), aff'd, 491 F.2d 751. Bateman and Callaway have standing to raise the issues presented in this case.

II. FREEDOM OF EXPRESSION

One of the contentions raised is that the statutes violate the constitutional right of freedom of expression established by the First Amendment. We have been cited to no case and have ourselves found none to establish that the sexual behavior of the kind alleged is within the ambit of the First Amendment. To the contrary are United States v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 1968), and Raphael v. Hogan, 305 F.Supp. 749 (S.D.N.Y.1969), in which cases conduct was combined with speech more possibly connected with the protection accorded by the amendment. This is not a situation in which the statutes threaten a fundamental right. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed. 2d 185 (1975).

III. VOID FOR VAGUENESS

No one is required at the risk of his liberty to speculate as to the meaning of penal statutes. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). An offense must be defined in terms that men of average intelligence understand. Lovelace v. Clark, 83 Ariz. 27, 315 P.2d 876 (1957). The defendants attack ARS § 13-651 and § 13-652 as contrary to this principle.

The Due Process Clause requires only that the law give sufficient [110]*110warning that men may conform their conduct to its dictates. Rose v. Locke, supra. The term “crime against nature” has been in use for centuries See 4 Blackstone, Commentaries 215-216. It is no more vague than many- other terms used to define criminal conduct and it is, in fact, used in a substantial number of jurisdictions. Rose v. Locke, supra. That term and the term “lewd and lascivious acts” have been often defined by this court. State v. Mortimer, 105 Ariz. 472, 467 P.2d 60 (1970); State v. Wayman, 104 Ariz. 125, 449 P.2d 296 (1969); State v. Alkhowarizmi, 101 Ariz. 514, 421 P.2d 871 (1966); Lovelace v. Clark, supra; State v. Potts, 75 Ariz. 211, 254 P.2d 1023 (1953); Faber v. State, 62 Ariz. 16, 152 P.2d 671 (1944); State v. Farmer, 61 Ariz. 266, 148 P.2d. 1002 (1944); State v. Poole, 59 Ariz. 44, 122 P.2d 415 (1942); Weaver v. Territory of Arizona, 14 Ariz. 268, 127 P. 724 (1912). When a statute has been interpreted in terms of identifiable conduct, meaning has been added to the statute and claims of vagueness will be judged in that light. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). Previous applications of a statute to a set of facts precludes a constitutional attack on the basis of vagueness. Wainwright v. Stone, supra. It can be easily determined what constitutes lewd and lascivious activity and sodomy in this state. See Rose v. Locke, supra. The challenge to the statutes on this basis is without merit.

IV. RIGHT TO PRIVACY

Justice Harlan wrote a well-reasoned dissent in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), which set forth the right to privacy and which was followed by the majority of the court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). These cases concerned the distribution of contraceptive devices for the use of married couples. In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the right of privacy of Griswold was established as the right of the individual, single or married. The right exists within the context of the intimate sexual relations between consenting adults in private, Eisenstadt v. Baird, supra; Griswold v. Conn., supra; child-bearing, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973); Eisenstadt v. Baird, supra; Griswold v. Conn., supra; child-rearing, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

V. VOID FOR OVERBREADTH

The Arizona statutes are attacked as reaching both married and unmarried persons, and both consenting and nonconsenting adults. The former has been discussed above, and, true, the latter distinction does not appear facially from the statutes. However, statutes do not stand alone.

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Cite This Page — Counsel Stack

Bluebook (online)
547 P.2d 6, 113 Ariz. 107, 1976 Ariz. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bateman-ariz-1976.