Richard L. Balthazar v. Superior Court of The Commonwealth of Massachusetts, 573 F.2d 698, 1st Cir. (1978)

573 F.
2d 698
Richard L. BALTHAZAR, Petitioner, Appellee,

v.
SUPERIOR COURT OF the COMMONWEALTH OF
MASSACHUSETTS,
Respondent, Appellant.
No. 77-1159.
United States Court of Appeals,

First Circuit.
Argued Sept. 8, 1977.
Decided April 4, 1978.
1
Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Section, Boston,
Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky,
Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for
appellant.
Susan J. Baronoff, Boston, Mass., for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG,*

District Judge.
WOLLENBERG, District Judge.
This is an appeal from an order of the United States District Court for the
District of Massachusetts issuing a writ of habeas corpus under 28 U.S.C.
2241. The petitioner's challenge to his conviction under Mass.Gen.Laws ch.
272, 35 for having committed the "unnatural and lascivious acts" of fellatio
and oral-anal contact was sustained on the basis that the statute as applied was
unconstitutionally vague. The court held further that petitioner had exhausted
state remedies as required under 28 U.S.C. 2254 on his alternative claim that
he was entitled to a new trial to raise the defense of consent created by the
Supreme Judicial Court of Massachusetts in its decision affirming his
conviction. 1
Both of these issues are presented again on appeal. We affirm the District Court
as to the unconstitutional vagueness of the statute as applied to petitioner's

conduct. Therefore, we need not decide the second issue. Whether state
remedies had been exhausted on the claim of a right to a new trial does not
affect the power of the court in deciding a claim on which exhaustion has been
achieved. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976).
The pertinent facts of the case are undisputed. The principal witness herself
testified that she performed an act of fellatio and put her tongue on petitioner's
backside. The question we must determine is whether the statute, as applied to
these acts, was unconstitutionally vague.
The void for vagueness doctrine is rooted in notions of due process. Criminal
statutes must be sufficiently specific to give fair notice of what conduct is
proscribed. Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185
(1975); Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584
(1972); Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258
(1972); reh. denied, 406 U.S. 911, 92 S.Ct. 1604, 31 L.Ed.2d 822; United States
v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). A criminal statute
that "leaves judges and jurors free to decide, without any legally fixed
standards, what is prohibited and what is not in each particular case," Giacco v.
Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 520, 15 L.Ed.2d 447 (1966),
is also repugnant to the Due Process Clause. The vice of such a law is that it
"impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application." Grayned v. City of Rockford, 408
U.S. 104, 108-09, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); Smith v.
Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
The general rule is that constitutional challenges of vagueness must be based on

a statute's application to the particular case, the major exception being where
the exercise of First Amendment rights is involved. United States v. Mazurie,
419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Broadrick v.
Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). We so limit
our decision today to the question of whether Mass.Gen.Laws ch. 272, 35, as
applied to petitioner, gave him fair notice as required by due process standards
that his conduct, i.e., fellatio and oral-anal contact, constituted an "unnatural
and lascivious act" proscribed by criminal statute.
10
The issue before us is not whether fair notice was given that these acts, if
forced, were prohibited. The statute was limited to nonconsensual acts only in
this case. Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974).
Therefore, force was not an element of the indictment, nor was it an issue at
trial.2 Moreover, even if petitioner did have fair notice that a forced "unnatural
and lascivious act" was illegal, the question as to what forced acts were within
the statutory sweep would remain. If the set of all unnatural and lascivious acts
is unconstitutionally vague, so will be the subset of forced acts no matter how
clear the dividing line between forced and consensual acts.
11
In determining whether a given statute provides "a person of ordinary

intelligence with fair notice that his contemplated conduct is forbidden," United
States v. Harriss, 347 U.S. at 617, 74 S.Ct. at 812, or gives "sufficient warning
that men may conduct themselves so as to avoid that which is forbidden," Rose
v. Lock, 423 U.S. at 50, 96 S.Ct. at 244, courts traditionally have relied on the
common usage of statutory language, judicial explanations of its meaning, and
previous applications of the statute to the same or similar conduct. See id. In
Rose v. Locke the Supreme Court considered and rejected a charge of
vagueness aimed at a Tennessee statute proscribing "crimes against nature" as
applied to cunnilingus. The Courts relied on previous pronouncements by the
Tennessee courts that the statute would be given a broad interpretation and
emphasized that there was a recognized common law meaning of the phrase
"crimes against nature." The Court considered the continued use of the phrase
in many jurisdictions and stated that "anyone who cared to do so could
certainly determine what particular acts have been considered crimes against
nature, and there can be no contention that the respondent's acts were ones
never before considered as such." Id. This is the framework of analysis that we
will use.
12
The District Court in the case at hand considered whether one who cared to
could determine what 35 was meant to proscribe. It concluded that the
common usage of "lascivious" was "tending to arouse sexual desire," and the
common usage of "unnatural acts" was "crimes against nature," which is
covered by another statute, Mass.Gen.Laws ch. 272, 34.3 This fundamental
ambiguity was not cured by judicial limitation. In Commonwealth v. Dill, 160
Mass. 536, 36 N.E. 472 (1894), a precursor statute to 35 was construed to
include "any mode of unnatural copulation" not coming within the definition of
sodomy as usually understood. But the court never explained what "unnatural
copulation" was, nor applied the term to the conduct in question. Even if it can
be said with certainty that the legislature intended to retain this distinction
between the narrow meaning of sodomy, to be proscribed by 34, and all other
forms of unnatural copulation, to come within the rubric of 35, it cannot be
said that the conduct in question falls squarely within one of those categories.
"Unnatural copulation," like "unnatural acts," at the time of petitioner's
conviction remained without a commonly accepted meaning. The leading case
to follow Dill stated that the words "unnatural and lascivious" signify "irregular
indulgence in sexual behavior, illicit sexual relations, and infamous conduct

which is lustful, obscene, and in deviation of accepted customs and manners."
Jaquith v. Commonwealth, 331 Mass. 439, 120 N.E.2d 189, 192 (1954). This
definition does not cure the ambiguity and the cases in other jurisdictions cited
by respondent do not clarify the internal ambiguity of the Massachusetts
statutory scheme.4 The District Court was rightly concerned that the use of
constantly shifting community standards, as the test of what conduct falls
within the terms of a criminal statute, places the public "at its peril to anticipate
a judicial pronouncement that public standards of morality have changed."
Balthazar v. Superior Ct. of Comm. of Mass., 428 F.Supp. 425 (D.C.1977).
13
It cannot be said that references to similar statutes and judicial determinations

in other jurisdictions make it fairly ascertainable that the Massachusetts statute
was applicable to petitioner's conduct.5 In Harris v. State, 457 P.2d 638 (Alaska
1969), the language "unnatural carnal copulation" was held to be too vague as
applied to homosexual anal intercourse. State v. Sharpe, 1 Ohio App.2d 425,
205 N.E.2d 113 (1965), held "unnatural sex act" vague as applied to sodomy.
Such statutes have also been applied to widely dissimilar forms of conduct. See,
e. g., Jellum v. Cupp, 475 F.2d 829 (9th Cir. 1973) (holding "unnatural conduct
contrary to the course of nature" vague as applied to forcing a woman to the
ground and urinating on her); Koa Gora v. Territory of Hawaii, 152 F.2d 933
(9th Cir. 1946) (deciding that "lascivious conduct" was properly applied to
laying "hands on private parts" of another). In light of the diversity of conduct
that could conceivably be covered by the terms "unnatural" and "lascivious"
and the fact that there are certainly acts that are less natural and more
universally condemned than Balthazar's conduct (for instance a range of sadomasochistic behavior), Balthazar could reasonably believe that the statute was
aimed at other acts than his.
14
Criminal statutes involving morals legislation often give rise to difficulties in

the description of proscribed conduct. This is caused by the common practice
of including subjective terminology, such as "offensive," "indecent," and
"unnatural" rather than explicit descriptions of the prohibited acts. This is
particularly true in statutes that involve sexual matters. The failure to specify
particular conduct stems partly from the concern that some conduct might not
be reached by a statute drafted too narrowly, and partly from a hesitancy to use
sexually explicit words. See, e. g., Jacquith v. Commonwealth, 331 Mass. at
443, 120 N.E.2d at 192. Forward-looking jurisdictions have expressly rejected
the antiquated notion that the penal code should not clearly define such acts.
District of Columbia v. Walters, 319 A.2d 332 (D.C.App.1974); see also State
v. Rhinehart, 70 Wash.2d 649, 424 P.2d 906 (1967). The Supreme Judicial
Court of Massachusetts itself recognized in deciding Balthazar that the words of
the statute standing alone no longer had a generally understood significance.

Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974). By
excluding consensual adult conduct from the statute they implied that this
conduct was no longer "in deviation of accepted customs and manners" under
the Jacquith standard.
15
In light of the fact that the language of the statute at the time of petitioner's
conduct had no well defined, well understood and generally accepted meaning,
and that it had not been defined with sufficient particularity by judicial
construction or applied to petitioner's conduct, we hold Mass.Gen.Laws ch.
272, 35 vague as applied. We recognize that subsequent decisions narrowing
the definition of conduct proscribed by 35, Commonwealth v. Balthazar,
supra, and applying 35 to fellatio, Commonwealth v. Deschamps, 1
Mass.App. 1, 294 N.E.2d 426 (1972), render the statute sufficiently precise to
survive a constitutional vagueness attack as applied today to the same conduct.
16
Affirmed.
17
LEVIN H. CAMPBELL, Circuit Judge (dissenting).
18
I strongly disagree with the court's opinion insofar as it suggests that Balthazar
and the public generally lacked fair notice that nonconsenting fellatio and
oral/anal sex acts were proscribed. In Jacquith v. Commonwealth, 331 Mass.
439, 120 N.E.2d 189 (1954), the statute was judicially construed to forbid
"illicit sexual relations, and infamous conduct which is lustful, obscene, and in
deviation of accepted customs and manners." Surely nonconsenting fellatio and
oral/anal sex acts come within that definition if any conduct does. Indeed, one
can venture to suggest that any sane person would know that such
nonconsensual acts were forbidden, just as he would known that highway
robbery, piracy and murder are forbidden. Since the Massachusetts Supreme
Judicial Court has limited the statute to nonconsensual acts, and since, so
limited, it is certainly constitutional as the court concedes, see Rose v. Locke,
423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975), I find much of the court's
rationale puzzling.
19
The difficulty here, as I see it, is not that defendant would not know that to
force a person to engage in such unnatural sex acts was criminal. Rather the
difficulty is that his counsel and the judge were not in a position when the case
was tried to know that non-consent was an essential element of the offense, the
Supreme Judicial Court not yet having spoken. Accordingly, the judge did not
instruct the jury to this effect, and defense counsel did not, we are told, defend
explicitly on the ground of consent. It is thus possible that the jury which
acquitted defendant of assault convicted him under the unnatural acts statute
without finding that he forced the victim. I realize that the Supreme Judicial
Court considered and rejected this possibility, but it seems to me that the record
does not warrant its confidence in this regard. It is fundamental that an accused
is entitled to know in advance the elements of the offense so that he can prepare
a defense, and that he go to the jury on proper instructions. I therefore believe
that fundamental fairness requires that defendant be afforded a new trial. But I
see no need to vacate the conviction, and bar reprosecuting as the court does in
affirming the district court.
Of the Northern District of California, sitting by designation
That issue had been raised in the state courts by a motion for a rehearing before
the Supreme Judicial Court and, at the behest of the District Court, by a motion
for a new trial to the Superior Court. It was thus decided that the state court had
been given an opportunity to consider the claim and that the doctrine of
exhaustion, based on principles of comity, did not require further application to
the state courts
No evidence was presented on the question of consent. Conflicting testimony

was given on the nature and extent of force allegedly used. Petitioner was
acquitted of assault with a dangerous weapon, Mass.Gen.Laws ch. 265, 15B
The District Court relied on definitions of the terms found in Webster's Third
New International Dictionary (1971) and Black's Law Dictionary, 4th ed.
(1968)
The Maine case relied on by respondents, State v. Cyr, 135 Me. 513, 198 A.
743 (1938), is not apposite because Maine was construing a "crime against
nature" statute rather than an "unnatural and lascivious acts" statute. Since
Massachusetts has both statutes, another state's interpretations of one cannot
clarify the meaning of the other
The two cases ruling that an unnatural and lascivious acts statute was not vague
as applied to oral sex, Thomas v. State, 326 So.2d 413 (Fla.1976); State v.
Lemire, 115 N.H. 526, 345 A.2d 906 (1975), were both decided long after
Balthazar did his deed

Richard L. Balthazar v. Superior Court of The Commonwealth of Massachusetts, 573 F.2d 698, 1st Cir. (1978)

Uploaded by

Copyright:

Available Formats

Richard L. Balthazar v. Superior Court of The Commonwealth of Massachusetts, 573 F.2d 698, 1st Cir. (1978)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Richard L. Balthazar v. Superior Court of The Commonwealth of Massachusetts, 573 F.2d 698, 1st Cir. (1978)

Uploaded by

Copyright:

Available Formats

573 F.

Richard L. BALTHAZAR, Petitioner, Appellee,

United States Court of Appeals,

Susan J. Baronoff, Boston, Mass., for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG,*

WOLLENBERG, District Judge.

as to the unconstitutional vagueness of the statute as applied to petitioner's

The general rule is that constitutional challenges of vagueness must be based on

In determining whether a given statute provides "a person of ordinary

indulgence in sexual behavior, illicit sexual relations, and infamous conduct

It cannot be said that references to similar statutes and judicial determinations

Criminal statutes involving morals legislation often give rise to difficulties in

the statute standing alone no longer had a generally understood significance.

LEVIN H. CAMPBELL, Circuit Judge (dissenting).

Of the Northern District of California, sitting by designation

No evidence was presented on the question of consent. Conflicting testimony

You might also like