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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Sefranka, 382
Supreme Judicial Court of Massachusetts,
Argued
Decided
Stephen R. Wainwright,
Robert M. Payton, Asst. Dist. Atty., for the
Commonwealth.
George H. Butcher, III, and Andrea L. Davis, Boston,
for the Civil Liberties Union of Massachusetts, & others, amici curiae, submitted a brief.
Before HENNESSEY, C. J., and BRAUCHER,
WILKINS, LIACOS and ABRAMS, JJ.
HENNESSEY, Chief Justice.
The defendant
Edward J. Sefranka was convicted in the Superior
Court for the
The facts
are not in dispute. As detailed in the
police report, which formed the statement of agreed facts both at trial and on
appeal, three plainclothes police officers went in separate unmarked cars to a
public rest area on Route 24. They did
so after receiving "complaints" about the rest area; the nature of
the complaints is not specified in the police report. When the police arrived, they saw several
parked cars with male occupants. The
police noted that the men would flash their parking lights at each other,
whereupon one would get out of his car, approach the other car whose lights had
been flashing, and get inside the other car; the two men would
"disappear" for a few minutes.
The police officers saw the defendant approach two cars, but there is no
evidence of his having participated in any sexual activity while at the rest
area, and the Commonwealth does not argue otherwise.
The police
officers decided that one of them should pull into the line of cars that were
flashing lights and "try (his) luck."
A while later, the defendant pulled behind the unmarked cruiser and
flashed his parking lights. After
several minutes, the police officer flashed his lights back at the
defendant. The defendant then approached
the cruiser, conversed with the officer, and invited the officer to return [382 Mass. 110] with him to his home and engage in oral copulation. The officer responded that he did not want to
leave the rest area and indicated that he preferred the sexual activity to take
place at the rest area. Replying that it
was not safe at the rest area, the defendant said, "Well, I guess I'll see
you later," got into his parked car, and drove away. He was arrested a few minutes later and
charged with being a disorderly person and a lewd, wanton, and lascivious
person, both in violation of G.L. c. 272, s 53. He was convicted of the latter charge only,
([FN2]) and appealed to the Appeals Court.
The case was transferred to this court on our own motion.
We hold
that the "lewd, wanton and lascivious persons" provision of c. 272, s
53, unless aided by appropriate judicial construction, is unconstitutionally
vague. Under the construction we shall establish in this opinion, the provision
prohibits only the solicitation or commission of a public sexual touching, in
the presence of persons who may be offended by the act. As so construed, the provision is neither
vague nor overbroad.
[1][2][3]
An essential principle of due process is that a statute may not proscribe
conduct "in terms so vague that men of common intelligence must
necessarily guess at its meaning." Connally v. General Constr. Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Grayned v. Rockford, 408 U.S. 104, 108 n.3, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). In addition to its failure to give fair
warning, a vague statute offends by its lack of reasonably clear guidelines for
law enforcement and its consequent encouragement of arbitrary and erratic
arrests and prosecutions. Papachristou v. Jacksonville, 405 U.S. 156, 162, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d 110 (1972) (striking down as
"plainly unconstitutional" Jacksonville's equivalent of s 53, before
the Supreme Court on vagrancy provisions); Grayned v.
Rockford, supra, 408 U.S. at 108‑109, 92 S.Ct.
at 2298‑2299. Further, when a
statute is capable of affecting First Amendment interests, as is true of s 53's
punishment of spoken words, the vagueness
[382 Mass. 111] doctrine demands
even greater precision that in other contexts.
Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d (1974). Grayned v.
Rockford, supra at 109 and n.5, 92 S.Ct. at 2299
(noting that "a precise statute ... assures us that the legislature has
focused on the First Amendment interests and determined that other governmental
policies compel regulation.")
[4] On the
other hand, a law is not vague if its meaning is ascertainable by reference to
similar or related statutes, or if the questioned terms have a commonly
understood meaning. See Commonwealth v.
King, 374 Mass. 5, 12‑13, 372 N.E.2d 196 (1977); Commonwealth v. Jarrett,
359 Mass. 491, 496‑497, 269 N.E.2d 657 (1971). Further, even a vague statute may be made
constitutionally definite by giving it a reasonable construction. See, e. g., Commonwealth v. A Juvenile, 368
Mass. 580, 595‑598, 334 N.E.2d 617 (1975); Alegata
v. Commonwealth, 353 Mass. 287, 303‑304, 231 N.E.2d 201 (1967).
[5] Having
in mind the above principles, we turn first to the language of the challenged
provision punishing "lewd, wanton and lascivious persons in speech or
behavior." This language, standing
alone, fails to inform a person of ordinary intelligence what conduct is
proscribed, as there is no commonly accepted understanding of the quoted terms. Cf. Commonwealth v. King, 374 Mass. 5, 12,
372 N.E.2d 196 (1974) ("prostitute" conveys a specific, commonly
understood meaning). In ordinary usage,
terms such as "lewd" and "wanton" "do not imply a
definite and specific referent, but apply broadly to conduct which the speaker
considers beyond the bounds of propriety."
Pryor v. Municipal Court for the Los Angeles Judicial Dist., 25 Cal.3d
238, 246‑247, 158 Cal.Rptr. 330, 599 P.2d 636
(1979) (attempting to define "lewd or dissolute conduct"). ([FN3])
See State [382 Mass. 112] v. Kueny,
215 N.W.2d 215, 218 (Iowa 1974) (noting such terms are effectively meaningless
today and unacceptable in criminal statutes absent an attendant definition of
the specific conduct proscribed).
([FN4])
In our
search for a clear meaning of the challenged provision, we next examine its history
and its function in light of other provisions of s 53. "Lewd, wanton and lascivious"
persons, along with the "idle" and the "disorderly," have
been punishable in this Commonwealth since at least 1699. See Commonwealth v. Templeman,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ([FNA]), 381 N.E.2d 1300 (1978); Commonwealth v. Diamond, 248
Mass. 511, 514‑515, 143 N.E. 503 (1924).
After adoption of the Massachusetts Constitution, the early provincial
laws punishing the lewd, idle and disorderly were gathered together into St.1787,
c. 54, entitled, "An Act for suppressing and punishing of rogues,
vagabonds, common beggars, and other idle, disorderly and lewd
persons." Id. From its inception, the statute was aimed at
punishing these people for their status.
See Commonwealth v. Diamond, supra at 516, 143 N.E. 503. The gravamen of the
various offenses was "being a person of the character and behavior
described," Commonwealth v. Parker, 4 Allen 313, 314 (1862), rather than
"doing a certain overt act," Commonwealth v. O'Brien, 179 Mass. 533,
534, 61 N.E. 213 (1901). Legislative
revisions since 1943 have struck from s 53 provisions punishing
"rogues," "vagabonds," and "common drunkards,"
and in 1959 "prostitution" was added to the statute as a separate
offense. See Alegata
v. Commonwealth, 353 Mass. 287, 303, 231 N.E.2d 201 (1967).
Most of
the provisions in s 53 have been attacked for vagueness. See Commonwealth v. Templeman,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNB]), 381 N.E.2d 1300
(1978), for a complete list of cases.
This court has saved many of the challenged provisions by examining
statutory[382 Mass. 113]
and case law concerning each provision to determine with specificity the
elements of the charged crime. See, e.
g., Commonwealth v. King, 374 Mass. 5, 12‑13, 372 N.E.2d 196 (1977);
Commonwealth v. A Juvenile, 368 Mass. 580, 596‑597, 334 N.E.2d 617
(1975); Commonwealth v. Brasher, 359 Mass. 550, 555, 270 N.E.2d 389 (1971).
The cases
construing the "lewd, wanton and lascivious persons" provision,
however, provide no greater degree of specificity than do the terms of the
provision standing alone. Before the
1978 case of Commonwealth v. Templeman, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNC]),
381 N.E.2d 1300 (1978), this court had dealt with charged violations of the
provision in only two cases, neither of which spelled out the elements
necessary to sustain a conviction or specified the exact nature of the criminal
speech or conduct engaged in by the defendant.
Commonwealth v. Parker, 4 Allen 313 (1862). Commonwealth v. O'Brien, 179 Mass. 533, 61 N.E.
213 (1901). Apparently, before the
separate offense of "prostitution" was added to s 53, prostitutes
were punishable as lewd, wanton and lascivious persons. See Commonwealth v. King, 374 Mass. 5, 11‑12,
372 N.E.2d 196 (1977); Commonwealth v. Diamond, 248 Mass. 511, 512, 517, 143
N.E. 503 (1924). In King, this court
noted that the Legislature failed to define the lewd, wanton and lascivious
conduct it reclassified in 1959 as prostitution. 374 Mass. at 12, 372 N.E.2d 196. Nor did the Legislature define what lewd,
wanton and lascivious conduct, if any, it declined to reclassify as
prostitution.
In
Commonwealth v. Templeman, supra, we limited the
reach of the "lewd, wanton and lascivious persons" provision in
certain material respects. We said that
the provision can be applied only to public, not private, conduct. Id. at ‑‑‑ ([FND]), 381 N.E.2d 1300.
This conclusion was in line with our reasoning in Commonwealth v.
Balthazar, 366 Mass. 298, 302, 318 N.E.2d 478 (1974), in which we held the
statutory proscription against "unnatural and lascivious acts," G.L. c. 272, s 35, inapplicable to the private, consensual
conduct of adults, ([FN5]) and in Commonwealth [382 Mass. 114] v. Scagliotti, 373
Mass. 626, 371 N.E.2d 726 (1977), which involved, as does the present case, a
defendant's offer to perform fellatio on an undercover policeman. In Scagliotti we
reversed the defendant's convictions for soliciting another to perform an
unnatural act and remanded for a new trial, because the trial judge improperly
had removed from the jury the crucial issue of "whether the defendant had
offered to commit the act in a public place." Id. at 628 ([FN6]), 371 N.E.2d 726. In addition to our requirement in Templeman that any sexual conduct punishable as "lewd,
wanton and lascivious" must be public conduct, we concluded that the
provision cannot be applied to speech or expressive conduct or to activities
involving the lawful exercise of First Amendment rights, and that it can be
used to punish defined conduct only, and not to punish status. Id. at ‑‑‑ ‑ ‑‑‑
([FNE]), 381 N.E.2d 1300. These limitations, deemed constitutionally
required, were derived from our cases construing other s 53 provisions so as to
avoid the defects of overbreadth and vagueness. See Commonwealth v. A Juvenile, 368 Mass.
580, 592, 597, 334 N.E.2d 617 (1975); Commonwealth v. King, 374 Mass. 5, 15
n.9, 372 N.E.2d 196 (1977). Nowhere in Templeman did we define in positive terms the public
conduct that could be punished as lewd, wanton and lascivious. ([FN7])
See Commonwealth[382 Mass.
115]
v. Templeman, supra at ‑‑‑ [FNf], 381 N.E.2d 1300 (Kaplan, J., concurring).
[6][7] We
thus conclude that Massachusetts decisions do not provide a clear and definite
content for the "lewd, wanton and lascivious" provision. As written and construed, the provision fails
to provide fair warning of what conduct is forbidden and hence is
unconstitutionally vague, rendering the defendant's conviction invalid. ([FN8])
For like reasons, decisions in other jurisdictions have found statutes
with wording similar to the s 53 provision unconstitutionally vague. See Morgan v. Detroit, 389 F.Supp. 922 (E.D.Mich.1975); Pryor v. Municipal Court for
the Los Angeles Judicial Dist., 25 Cal.3d 238, 158 Cal.Rptr.
330, 599 P.2d 636 (1979); District of Columbia v. Walters, 319 A.2d 332 (D.C.),
appeal dismissed for want of a properly presented Federal question and cert.
denied, 419 U.S. 1065, 95 S.Ct. 650, 42 L.Ed.2d 661
(1974). ([FN9])
Our
conclusion that the s 53 provision is unconstitutionally vague as construed by
past decisions does not require us to invalidate the provision. As noted earlier, if a reasonable narrowing
construction to a vague statute can be supplied, this court has done so in
order to sustain its validity. We have
encountered great difficulty in attempting to [382 Mass. 116] define
specifically the conduct proscribed by the "lewd, wanton and lascivious
persons" provision. Given the
history of the provision and its apparent initial application primarily to
prostitution, now punishable as a separate offense, Commonwealth v. King, 374
Mass. 5, 11‑12, 372 N.E.2d 196 (1977), we are hard put to find sufficient
legislative indication of what distinct function the provision serves
today. See District of Columbia v.
Walters, 319 A.2d 332, 336 (D.C.1974), in which the court pronounced the
statutory provision against "lewd, obscene, or indecent act(s)" as
"so lacking in coordinates, other than its apparent application to sexual
matters, that inadequate guidance has been given us for our development of a
remedial formula for a saving construction."
We have
examined other sex‑related criminal offenses established in our
statutes. Separate proscriptions already
exist in Massachusetts against indecent exposure, G.L.
c. 272, s 53; lewd and lascivious cohabitation by a man and woman not married
to each other, c. 272, s 16; "open and gross lewdness and lascivious behaviour," c. 272, s 16; fornication, c. 272, s 18;
crimes against nature, c. 272, s 34; and unnatural and lascivious acts, c. 272,
ss 35, 35A.
The "open and gross lewdness" provision has been said to be
"closely similar" to the offense of indecent exposure, Commonwealth
v. Broadland, 315 Mass. 20, 22, 51 N.E.2d 961 (1943),
and has been applied primarily to indecent exposure in front of, and sexual
contact with, children. See Commonwealth
v. Templeman, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNG]),
381 N.E.2d 1300 (1978), and cases cited.
The "unnatural and lascivious acts" statute has been held to
include public fellatio and oral‑anal contact. Commonwealth v. Balthazar, 366 Mass. 298,
299, 302, 318 N.E.2d 478 (1974) (holding the statute inapplicable to the
private, consensual conduct of adults).
After examining all of the above statutes, and proceeding under the
reasonable assumption that the Legislature intended a comprehensive and
integrated approach, we can perceive for the challenged provision a function in
the penal law which appears to be consistent with legislative intent. None of the above statutes, with the [382 Mass. 117] possible exception of "open and gross lewdness," G.L. c. 272, s 16, deals with a public sexual touching that
does not rise to the level of a completed sexual act. Nor do these statutes encompass public
solicitations of such conduct. The
"lewd, wanton and lascivious persons" provision of s 53 thus may
serve the function of filling this gap in the criminal law.
The
California Supreme Court's opinion in Pryor v. Municipal Court for the Los
Angeles Judicial Dist., 25 Cal.3d 238, 158 Cal.Rptr.
330, 599 P.2d 636 (1979), provides some assistance in our attempt to specify
the sexually motivated public conduct punishable under the s 53 provision. The California statute at issue in Pryor
punished any person "(w)ho solicits anyone to engage in or who engages in
lewd or dissolute conduct in any public place or in any place open to the
public or exposed to public view" (emphasis deleted). Id. at 243‑244, 158 Cal.Rptr.
330, 599 P.2d 636. The court held the
statute vague as construed by past cases, which had been decided at a time, no
longer prevailing, when many forms of private consensual sexual acts were
illegal in California. Id. at 253‑254,
158 Cal.Rptr. 330, 599 P.2d 636. The court then adopted a limited construction
of the statue to prohibit only the commission of conduct in public "which
involves the touching of the genitals, buttocks, or female breast, for purposes
of sexual arousal, gratification, annoyance or offense, by a person who knows
or should know of the presence of persons who may be offended by the
conduct." Id. at 244, 256‑257,
158 Cal.Rptr. 330, 599 P.2d 636. Under the court's construction, the statue
could lawfully prohibit the solicitation of such conduct only if the
solicitation occurred in public and only if the conduct itself was to be performed
in public. Id. at 257, 158 Cal.Rptr. 330, 599 P.2d 636.
[8] In
order to satisfy constitutional standards of specificity, we think a similarly
definite construction is appropriate here.
We therefore construe the "lewd, wanton and lascivious persons"
provision to prohibit only the commission of conduct in a public place, or the
public solicitation of conduct to be performed in a public place, when the
conduct committed or solicited involves the touching of the genitals, buttocks,
or female breasts, for purposes of sexual arousal, [382 Mass. 118]
gratification, or offense, by a person who knows or should know of the presence
of a person or persons who may be offended by the conduct. As so construed, the provision does not
impose generalized, indefinite behavioral standards under which the criminality
of conduct depends on the personal predilections of the judge or the jury; nor
does it invite discriminatory enforcement by police and prosecutors. Further by limiting the speech proscribed to
the solicitation of particular public sexual conduct which is itself criminal,
([FN10]) the construed provision does not reach speech protected by the First
Amendment, and hence avoids any problems of overbreadth. See Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972); Commonwealth v. A
Juvenile, 368 Mass. 580, 586, 334 N.E.2d 617 (1975).
In
summary, we hold that the "lewd, wanton and lascivious persons"
provision was unconstitutionally vague as construed by our past decisions in effect
at the time of the defendant's conviction.
Thus the conviction must be reversed, and a finding of not guilty
entered. Under the construction
established in this opinion, the statutory provision complies with
constitutional standards. ([FN11])
Judgment
reversed.
Finding
set aside.
Judgment
for the defendant.
(FN1.) General Laws, c. 272, s 53, as amended
through St.1973, c. 1073, s 20, in its entirety, reads as follows: "Common
night walkers, both male and female, common railers
and brawlers, persons who with offensive and disorderly act or language accost
or annoy persons of the opposite sex, lewd, wanton and lascivious persons in
speech or behavior, idle and disorderly persons, prostitutes, disturbers of the
peace, keepers of noisy and disorderly houses and persons guilty of indecent
exposure may be punished by imprisonment in a jail or house of correction for
not more than six months, or by a fine of not more than two hundred dollars, or
by both such fine and imprisonment."
(FN2.)
It is unclear from the record at what point the disorderly person charge was
dropped.
(FN3.)
As the Supreme Court of California noted in Pryor, "Some jurors would find
that acts of extramarital intercourse fall within (the challenged terms); some
would draw the line between intercourse and other sexual acts; others would
distinguish between homosexual and heterosexual acts. Thus one could not determine what actions are
rendered criminal by reading the statute or even the decisions which interpret
it. He must gauge the temper of the
community, and predict at his peril the moral and sexual attitudes of ... the
jury." 25 Cal.3d at 251‑252,
158 Cal.Rptr. 330, 599 P.2d 636.
(FN4.)
The imprecision of these words is seen also in their dictionary
definitions. Each of the three words is
defined with reference to the other two, as well as to further synonyms such as
"unchaste" and "lustful."
Webster's Third New Int'l Dictionary (1961) at 1301, 2575, 1274. See Commonwealth v. A Juvenile (No. 2), 6 Mass.App. 194, ‑‑‑ n.1, 374 N.E.2d 335
(1978) (Mass.App.Ct.Adv.Sh. (1978) 320, 323 n.1).
(FNA.) Mass.Adv.Sh. (1978) 2738, 2741.
(FNB.) Mass.Adv.Sh. (1978) 2738, 2740‑2741.
(FNC.) Mass.Adv.Sh. (1978) 2738.
(FND.) Mass.Adv.Sh. (1978) at 2744.
(FN5.)
We reached our conclusion in Balthazar on the basis of recent cases expanding
free speech and privacy rights in sex‑related areas, and "in light
of our own awareness that community values on the subject of permissible sexual
conduct no longer are as monolithic" as they were in past decades. 366 Mass. at 301‑302, 318 N.E.2d 478.
(FN6.)
The defendant in the present case offered to commit the sexual act in the
privacy of his own home, and not in any public place.
(FNE.) Mass.Adv.Sh. (1978) at 2743‑2744.
(FN7.) The Templeman
opinion did refer, without comment, to a statement by the Appeals Court that
the terms describe "a type of person who commonly engages in or is willing
to engage in sexual conduct which is repugnant to prevailing moral
standards." Templeman,
376 Mass. at ‑‑‑, 381 N.E.2d 1300 (Mass.Adv.Sh. (1978) at 2742), quoting Commonwealth v. A
Juvenile (No. 2), 6 Mass.App. 194, ‑‑‑,
374 N.E.2d 335 (1978) (Mass.App.Ct.Adv.Sh. (1978) 320, 323). The Commonwealth, both in its brief and in
oral argument, used similar language to justify the defendant's conviction
under the statute. To the extent that
this definition allows punishment for a person's status rather than for
particular conduct, it is constitutionally impermissible. See Commonwealth v. Templeman,
supra, 376 Mass. at ‑‑‑, 381 N.E.2d 1300 (Mass.Adv.Sh. (1978) at 2743); Commonwealth v. King, supra,
374 Mass. at 15 n.9, 372 N.E.2d 196. To
the extent, moreover, that the definition allows punishment for private,
consensual sexual conduct of adults, it runs counter to our holdings protecting
from criminal prosecution such conduct of a noncommercial nature. See Commonwealth v. Balthazar, 366 Mass. 298,
302, 318 N.E.2d 478 (1974); Commonwealth v. Scagliotti,
373 Mass. 626, 628, 371 N.E.2d 726 (1977).
FNf. Mass.Adv.Sh. (1978)
at 2746.
(FN8.) In the view we have taken of this case,
we need not determine whether, as the Commonwealth contends, the defendant's
solicitation of oral sex constituted "fighting words," for even
"fighting words" may not be punished under an unconstitutionally
vague statute. See, e. g., Plummer v.
Columbus, 414 U.S. 2, 3, 94 S.Ct. 17, 38 L.Ed.2d 3
(1973).
(FN9.) When statutes with similar phraseology
have been held not vague, it has been because the words were paired with other
statutory terms providing a meaningful context, see Anderson v. State, 562 P.2d
351, 357 (Alaska 1977), and cases cited in District of Columbia v. Walters,
supra, 319 A.2d at 335, or because the statute has been construed to cover
sexual acts, or solicitations of sexual acts, which if accomplished would be
criminally punishable. See, e. g.,
District of Columbia v. Garcia, 335 A.2d 217, 221‑222 (D.C.1975). The Commonwealth's reliance on Garcia is
hence misplaced.
(FNG.) Mass.Adv.Sh. (1978)
2738, 2744‑2745.
(FN10.) Cf. Commonwealth v. King, 374 Mass. 5,
10, 12, 372 N.E.2d 196 (1977) (defining prostitution as including both the
performance of indiscriminate sexual acts for hire and the solicitation or
agreement to perform such acts). The
case before us addresses noncommercial sexual solicitation and activity only,
and does not limit the offense of prostitution, punishable under a separate
provision of s 53.
(FN11.) We note that even when judged under
the narrowing construction adopted in this opinion, the defendant's speech and
conduct falls outside the statutory prohibition. No public sexual conduct took place; nor did
the defendant solicit any such conduct.