wdoherty@mit-athena.ARPA (Will Doherty) (11/13/84)
I don't know the exact reference on this information. If you want it,
call Larry Goldsmith, a reporter at Gay Community News in Boston at
617-426-4469.
A Survey of the Criminal Laws of the United States
Affecting Homosexuals
by Daniel Meyer, Esq.
(This is the third installment of Dan Meyer's survey of the criminal
laws relating to homosexuality in the various states. We continue our
review of the New England states with Massachusetts, which requires
enough discussion to carry over into the discussion next month.--Editor)
Massachusetts
Massachusetts has not by statute decriminalized consensual sexual acts
in private. It *seems*, however, to have done so by judicial decisions
that hold that, as a matter of statutory construction, the provisions of
the criminal law against "deviant" sexual acts do not apply to such acts
when committed in private between consenting adults. The word "seems"
is used because the decisions are not absolutely clear.
1. The Question Whether Consensual Sexual Acts in Private Have Been
Decriminalized.
A. The Statutes Prohibiting Deviant Sexual Acts.
The pertinent statutes are of ancient origin, as their rather archaic
language suggests, and are quoted here in full to show their extreme
vagueness and generality (except for the sodomy statute) which required
the courts, in order to save them from unconstitutionality for
vagueness, to delineate the specific acts within their purview, and
which afforded the courts the opportunity to exclude from their reach
consensual acts between adults in private.
The statutes in question are contained in Chapter 272 of the General
Laws of Massachusetts (G.L.c.272). They read as follows (with emphasis
supplied to indicate the particular language held to prohibit deviant
sexual acts):
S 16. Lascivious Cohabitation and Lewdness.
A man and woman who, not being married to each other, lewdly and
lasciviously associate and cohabitate together, or *a man or woman,
married or unmarried, who is guilty of open and gross lewdness and
lascivious behavior*, shall be punished by imprisonment in the state
prison for not more than three years or in jail for not more than two
years or by a fine of not more than three hundred dollars.
S 34. Sodomy and Buggery.
Whoever commits the abominable and detestable crime against nature
either with mankind or with a beast, shall be punished by imprisonment
in the state prison for not more than twenty years.
S 35. Unnatural and Lascivious Acts.
Whoever commits *any unnatural and lascivious act with another person*
shall be punished by a fine of not less than one hundred nor more than
one thousand dollars or by imprisonment in the state prison for not more
than five years or in jail or the house of correction for not more than
two and one half years.
S 53. Common Night Walkers, Common Railers and Brawlers, etc.
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.
B. The Cases Decriminalizing Consensual Acts in Private.
(1) Cases Under G.L.c.272, S 35.
The leading case is *Commonwealth v. Balthazar*, 318 N.E.2d 478 (Mass.
1974). There, the complainant, a woman who had accepted a ride in the
defendant's car, charged that he had compelled her by threats to commit
fellatio on him and to put her "tongue on his backside." The defendant
was convicted of committing an "unnatural and lascivious act with
another person" under G.L.c.272, S 35. He argued on appeal that the
statute was unconstitutionally vague in not specifying the particular
acts to which it applied and also that the trial judge should have
instructed the jury that consent by the victim would bar a conviction
under S 35.
The Supreme Judicial Court (SJC) affirmed the conviction holding that S
35 was not unconstitutionally vague as applied to the case because,
according to the Court, both earlier court decisions and contemporary
community standards sufficiently apprised the defendant that the
particular acts of which he was accused were considered "unnatural and
lascivious" within the meaning of S 35. "By compelling the victim to
put her mouth on his genitals and on his buttocks or anus, the defendant
sought sexual gratification in a manner which," according to the court,
"deviated from accepted conduct in the community." 318 N.E.2d at 482.
The SJC went out of its way, however, in what was strictly speaking a
*dictum*, but a *dictum* that seems to have evolved into settled law, to
declare that, in the light of contemporary community values, "...we
conclude that S 35 must be construed to be inapplicable to private
consensual conduct of adults. We do so on the ground that the concept
of general community disapproval of specific sexual conduct, which is
inherent in S 35, requires such an interpretation. We do not decide
whether a statute which explicitly prohibits specific sexual conduct,
even if consensual and private, would be constitutionally infirm." 318
N.E.2d at 481. The court did not express any opinion on the question
whether S 34, the sodomy statute, which explicitly prohibits specific
sexual conduct but does not, to be sure, expressly prohibit such conduct
when consensual and private, could be limited by statutory construction
to exclude consensual acts between adults in private.
The SJC's declaration that S 35 is inapplicable to consensual acts in
private would seem to have supported the defendant's claim that the
trial judge erred in failing to instruct the jury that the victim's
consent would bar a conviction under that section. The SJC held,
however, that even assuming the acts in question occurred in private,
the defendant was precluded from asserting the defense of consent in the
SJC because he had failed at the trial to request such an instruction or
to take exception to the trial judge's failure so to charge.
Thereafter, the defendant sought habeus corpus in the federal courts on
the ground that S 35 was unconstitutionally vague. *Balthazar v.
Superior Court*, 428 F.Supp.425 (D.Mass. 1977), *aff'd*, 573 F.2d 698
(1st Cir. 1978). The district court granted the writ and reversed the
conviction, and was affirmed on appeal. Those decisions were based on a
finding that although the SJC had narrowed the scope of S 35 by
excluding from its reach private consensual conduct, the section was
nevertheless unconstitutionally vague at the time of the defendant's
alleged acts because its broad and general language had not been defined
specifically to apply to the conduct complained of. However, the
district court declared (428 F.Supp. at 434):
The court is not willing, however, to hold that Mass.
Gen.Laws ch. 272, S 35 is invalid today merely because
it was unconstitutional as applied to petitioner in
July of 1972. Much has transpired in the courts of
the Commonwealth since the date of the petitioner's
alleged conduct, which has lent specificity and meaning
to a once ambiguous statute. The most significant
occurrence came in *Commonwealth v. Deschamps*,
294 N.E.2d 426 (Mass.App.Ct. 1972), where fellatio was
held to constitute an unnatural act. Other recent
cases have definitively applied S 35 to specific
conduct. *Commonwealth v. LaBella*, 364 Mass. 550,
306 N.E.2d 813 (1974) (applying S 35 to cunnilingus).
Furthermore, as was previously discussed, S 35 was
significantly altered by the Supreme Judicial Court's
opinion in *Balthazar*, limiting the statute's
reach to non-consensual conduct. The clear impact
of these decisions was to put the public on notice
that S 35 forbids specific types of non-consensual
sexual conduct, including fellatio.
In *Commonwealth v. Reilly, 363 N.E.2d 1126 (Mass.App. 1977), the court,
citing *Balthazar*, squarely held that "consensual conduct in private
between adults is not prohibited by... S 35..." and that the refusal of
the trial judge so to charge constituted reversible error. *See also,
Commonwealth v. Scagliotti*, 371 N.E.2d 726 (Mass. 1977).
(2) Cases Under G.L.c.272, SS 16 and 53.
In *Commonwealth v. Templeman*, 381 N.E.2d 1300 (mass. 1978), the agreed
facts, based largely on the testimony of the victim, were that the
defendant had intercourse at home with his 16 year old stepdaughter.
According to her testimony, she has has intercourse with the defendant
on a number of prior occasions but had never participated willingly or
consented. The defendant was prosecuted for rape, for "open and gross
lewdness and lascivious behavior" under S 16 and for being a "lewd,
wanton and lascivious person in speech or behavior" under S 53. He was
acquitted of rape, but convicted under SS 16 and 53. On appeal, the
defendant argued that he was convicted on duplicitous indictments and
that the charge under S 16 should therefore be dismissed. He also urged
that the S 53 charge should be dismissed as unconstitutionally vague.
The SJC held that, although S 53 can apply to sexual conduct, "...if
sexual acts for hire are not involved, there must be conduct that is
'public'..." 381 N.E.2d at 1303. Consequently, it reversed the
conviction under S 53. However, it affirmed the conviction under S 16
saying: "No argument is made that there was any error in the conviction
of 'open and gross lewdness and lascivious behavior' under G.L.c.272, S
16, except for the claim that the two indictments were duplicitous. The
history of S 16 is quite separate from that of S 53, and our cases give
adequate warning that S 16 could be applied to conduct like that of the
defendant." 381 N.E.2d at 1304. The court then cited *Commonwealth v.
Lucas*, 126 N.E.2d 804 (Mass. 1955), in which a defendant was convicted
of open and gross lewdness and lascivious behavior for committing a
sexual act in private with his daughter, less than 14 years of age, and
*Commonwealth v. Wardell*, 128 Mass. 52 (1880), in which a defendant was
convicted of open and gross lewdness and lascivious behavior for
exhibiting his "private parts" in a private house, not his own, in the
presence of an 11 year old girl and a child of 4. After citing *Lucas*
and *Wardell*, the court in *Templeman* went on to say: "Contrast
*Commonwealth v. Catlin*, 1 Mass. 8, 9-10 (consensual conduct of adults
in private)." 381 N.E.2d at 1304. In *Catlin*, the appellate court
reversed the conviction of a married man for open and gross lewdness and
lascivious behavior for lying in bed in private with a woman who was not
his wife on the ground that "...*secret and private lewdness* and
lascivious behavior...cannot in any degree support the charge in the
indictment." (Emphasis in original; 1 Mass. at 10.)
The question that concerns us is whether the affirmance of the
defendant's conviction under S 16 in *Templeman* is a holding or even an
indication that the prohibition in that section against "open and gross
lewdness and lascivious behavior" covers consensual acts between adults
in private. The following factors in the case suggest that S 16 might
be construed to cover such acts: First, the court's decision dismissing
the conviction under S 53 was a square holding that the incident
occurred in private. Second, the acquittal on the rape charge shows
that the jury found that the victim consented in fact. Third, the
victim was 16 years old and, accordingly, capable of effectively
consenting to "normal" sexual intercourse, which is all that seems to
have occurred in this case. (See G.L.c.265, S 23, and discussion below
regarding the question of consent.) Other factors, however, indicate
that the affirmance of the conviction under S 16 does not mean that
consensual acts between adults in private are within the reach of that
section: First, the primary ground for the affirmance of the S 16
conviction was that"...no argument is made that there was any error in
the conviction...except for the claim that the two indictments were
duplicitous..." 381 N.E.2d at 1304. Second, after citing *Lucas* and
*Wardell*, in which the victims were under the age of 14 and, in once
[sic] case, the defendant's daughter, the court "contrasted" the
*Catlin* case, stating that it involved "consensual conduct of adults in
private."
The opinion in *Templeman* is rather muddled. A reasonable explanation
of it seems to be that the court, without expressly saying so, was moved
by the relationship between the actor (father) and the victim (16 year
old stepdaughter) (See Model Penal Code, S 213.3(1)(b)), and that the
decision, insofar as it may hold that S 16 can apply to sexual acts in
private where there has been consent in fact, does not go beyond the
particular facts of the case, namely, a situation where the victim is
young and where, in the words of the Model Penal Code, the actor "...is
his guardian or otherwise responsible for general supervision of his
welfare..." So viewed, the holding in *Templeman* in affirming the S 16
conviction is simply that, in view of the ages and relationship of the
parties, consent in fact did not constitute effective consent as a
matter of law. The court's failure to base its decision expressly on
this ground is easily understood; for, had it done so, the defendant
could have raised the constitutional question that the broad language of
S 16 had not been defined specifically to apply to the conduct
complained of. In accord in limiting the reach of S 53 to conduct
committed in a public place is *Commonwealth v. Sefranka*, 414 N.E.2d
602 (Mass. 1980).
(3) The case under G.L.c.272, S 34.
Section 34 has been construed to forbid anal intercourse and bestiality.
*Commonwealth v. Gallant*, 369 N.E.2d 707, 714 (mass. 1977). It seems
on its face to apply broadly to all acts of anal intercourse, both
public and private. However, the SJC seems to have declared
unequivocally that adult consent is a defense to a prosecution for
sodomy in private. *Commonwealth v.Manning*, 328 N.E.2d 496 (Mass.
1975). In *Manning*, the defendant was convicted of rape, sodomy,
unnatural and lascivious acts, and assault and battery. Although the
opinion of the SJC does not cite the particular sections of the law
under which the defendant was convicted, it states that he was sentenced
to a term of 5 to 7 years on the conviction for sodomy. This means that
the sodomy conviction must have been under G.L.c.272, S 34, because SS
16, 35, and 53, the only other sections that might cover sodomy, provide
for shorter maximum terms of imprisonment.
In the appeals court in *Manning*, the defendant urged that the trial
court had erroneously excluded evidence of the complainant's poor
reputation for chastity. The appeals court reversed the conviction for
rape on the ground that the defendant's reputation for chastity was
relevant to the question of her consent, but it upheld the convictions
for sodomy and unnatural acts on the ground that the excluded testimony
bore only on the question of consent, not veracity. The SJC reversed
the convictions for sodomy and unnatural acts on the ground that if the
evidence of complainant's poor reputation for chastity had persuaded the
jury that rape did not take place and that the complainant had testified
falsely as to that, the jury might well have disbelieved the complainant
in her further uncorroborated testimony that sodomy and unnatural acts
had occurred. The Court concluded as follows (328 N.E.2d at 501):
Disposing of the case as we do, we need not go into any
phase of the defendant's second contention, that, since
our recent decision in Commonwealth v. Balthazar,
318 N.E.2d 478 (1974), interpreted the unnatural acts
statute to admit adult consent as a defense, reversal
of his conviction is now required because the excluded
evidence of the complainant's poor reputation for
chastity was directly relevant in refuting the charges
of sodomy and unnatural acts. *While the consent
defense will be open to the defendant on a retrial*, we
do not now undertake to decide whether a poor reputation
for chastity, as distinguished from a reputation
for engaging in the particular acts charged, is
admissible to show consent as a defense to a charge
of sodomy or unnatural acts. [Emphasis supplied]
C. Conclusion
It has been squarely held that the prohibition in G.L.c.272, S 35,
against "unnatural and lascivious acts" and the penalties imposed by S
35 upon "lewd, wanton and lascivious persons in speech or behavior" do
not apply where the acts in question are consensual and in private. The
exclusion of private consensual acts from the reach of S 16 ("open and
gross lewdness and lascivious behavior") and of S 34 (sodomy) is not
quite so certain but seems highly probable. On balance, it seems safe
to say that sexual acts between consenting adults in private have been
decriminalized in Massachusetts.
[Here is the second part of what I received from Larry--WD]
(This is the fourth installment of our survey of criminal laws of the
United States affecting gay men and lesbians. We continue our
discussion of the laws of Massachusetts. Next month, we will deal with
the laws of New Hampshire.--Ed.)
Massachusetts
(Part II)
II. Consent
A. The Age Below Which Actual Consent Does Not Constitute Effective
Consent. The statutes are inconsistent. GLc.265. S 23 provides:
Rape of Child. Whoever unlawfully has sexual intercourse or unnatural
sexual intercourse, and abuses a child under sixteen years of age shall,
for the first offense, be punished by imprisonment in the state prison
for life or for any term of years, or, except as otherwise provided, for
any term in a jail or house of correction, and for the second or
subsequent offense by imprisonment in the state prison for life or for
any term of years, but not less than five years.
GLc.272, S 35A provides:
Unnatural, etc., Acts with Child Under Sixteen. Whoever commits any
unnatural and lascivious act with a child under the age of sixteen shall
be punished by a fine of not less than one hundred dollars nor more than
one thousand dollars or by imprisonment in the state prison for not more
than five years or in jail or the house of correction for not more than
two and one half years, and whoever over the age of eighteen commits a
second or subsequent offence [sic] shall be sentenced to imprisonment in
the state prison for a term of not less than five years.
GLc.272, S 4 provides:
Enticing to Unlawful Intercourse. Whoever induces any person under
eighteen of chaste life to have unlawful sexual intercourse shall be
punished as provided in the preceding section. [I.e., imprisonment for
not more than three years or fine not to exceed one thousand dollars, or
both.]
The general provisions of law defining "minority" and "majority" provide
that a person under 18 is a minor and becomes an adult at 18 (GLc.4, S
7, defs. 48-51). Relying on these general provisions and apparently on
the Supreme Judicial Court's (SJC) use of the word "adults" in *C. v.
Balthazar*, the court in *C. v. Fleurant*, 372 N.E.2d 542 (Mass.App.
1978), held that "minors," i.e., persons under 18, are presumed to be
incapable of giving consent to unnatural and lascivious acts and that,
therefor, where all the victims of the various offenses for which the
defendant was convicted were under 18, it was not necessary to reach the
question whether the acts were committed in private. As the prosecution
was under GLc.272, S 35A (the only penal statute cited in the opinion),
it is strange that the court held 18 to be the "age of consent" because
S 35A only prohibits the proscribed conduct with person under 16. The
court did not mention S 4, which prohibits inducing persons under 18 to
have unlawful sexual intercourse. But in a prosecution under that
section it would have to be proved that the victims were "of chaste
life," an unlikely situation these days.
In *C. v. Zeitler*, 389 N.E.2d 423 (Mass.App. 1979), a prosecution under
GLc.272. S 35, the court was faced with the question whether a person 16
or 17 years old can consent to an "unnatural act." The court declared
(at 427-28):
It is clear that a person under the age of sixteen
cannot give such consent (GLc. 272. S 35A) and that a
person who has attained the age of eighteen can.
GLc.4, S 7, forty-ninth... Despite our holding in
*C. v. Fleurant*... a majority of the panel are of the
belief that there is a serious question as to
whether it is the law that a person between sixteen
and eighteen who can consent to any of the panoply of
acts which constitute sexual intercourse...can also
consent to those acts which have been or may be
classified as 'unnatural and lascivious' under
GLc.272. SS 35 and 35A..."
The court certified this question to the SJC prior to a retrial of the
case. The defendant's prosecution under S 35 was thereafter dropped,
the case motted, and the question left unanswered.
B. Other Circumstances Under Which Actual Consent Does Not
Constitute Effective Consent.
1. Persons Under the Influence of Drugs. It seems reasonably
certain that the actual consent of a person under the influence of drugs
or intoxicants administered by the actor would not constitute effective
consent, pursuant to GLc. 272, S 3 (which includes a penalty of
imprisonment for no more than three years in the state prison or two and
one half years in the house of correction, or fine of not more than one
thousand dollars, or by both).
2. Persons Under the Control of [sic--or] Domination of Others.
No statute or cases have been found dealing explicitly with whether the
actual consent to a sexual act of a victim who is under the control or
domination of the actor (e.g., prisoner and guard) constitutes effective
consent. However, the decision in *C. v. Templeman, supra*, seems best
explained as a holding, not expressly articulated, that the actual
consent of the defendant's 16 year old step-daughter to sexual
intercourse with him was not effective consent because of his dominant
position with respect to her. (see Part I. Section B. para. 2. above)
In what other areas the courts may hold that actual consents are
ineffective where the consenting victim is under the domination of the
actor is a matter of speculation.
C. Consent Under the Assault Statutes.
It is clear that the terms "unnatural sexual intercourse," "unnatural
and lascivious acts" and "unlawful sexual intercourse" as used in
GLc.265. S 23 and in c.272, SS 35A and 4, include sodomy, fellatio,
cunnilingus, mouth to anal contact and "other intrusions [other than
"normal" vaginal intercourse] of a part of a person's body or other
object into the genital or anal opening of another person's body." (See:
*C. v. Gallant*. 369 N.E.2d 707. 712. 714 (Mass. 1977); *C. v. Manning*,
328 N.E.2d 496, 497, 499 (Mass. 1975); *C. v. Deschamps*, 294 N.E.2d 426
(Mass. 1972); *C. v. LaBella*, 306 N.E.2d 813 (mass. 1974); *C. v.
Balthazar*, 318 N.E.2d 478, 482 (Mass. 1974); *C. v. LaMay*, 369 N.E.2d
1036 (Mass.App. 1977).) Whether those terms as used in those statutes
include other acts deliberately committed for sexual gratification, such
as the touching of genital areas (hereinafter called "sexual contacts"),
is not clear. The court in *C. v. Zeitler* stated (389 N.E.2d at 427)
that only the acts listed above fall within the terms "unnatural and
lascivious" acts. It is uncertain whether the same result would be
reached in a case of sexual contacts between persons of the same sex.
Whether such sexual contacts fall within the scope of GLc. 265, S 23 or
c.272. SS 35, 35A, or 4, it appears that one who commits a sexual
contact upon another in the absence of effective consent is guilty of
assault and battery under c.265. SS 13A (Assault and Assault and
Battery), 13B (Indecent Assault and Battery on Child Under Fourteen),
13F (Indecent Assault and Battery on Mentally Retarded Person) or 13H
(Indecent Assault and Battery on Person Aged Fourteen or Older). These
crimes are variously punishable by imprisonment for periods of two and a
half to five years, or, in the case of S 13A, by a fine of not more than
$500.
In *C. v. Burke*, (Mass., 11/22/83, not yet reported), the defendant was
prosecuted under S 13B and found guilty of assault and battery upon a
female child under age 14. The District Court, faced with what it
considered the novel issue of whether evidence of the child's consent
should be admitted as material upon retrial, reported this question to
the SJC, among others: "Is lack of consent an element of the offense of
indecent assault and battery on a child under the age of fourteen years
proscribed by...S 13B..?" In responding, the SJC summarized the law as
follows: (1) A physically harmful or potentially harmful touching is
always a battery, and consent is immaterial; (2) A non-harmful touching
is a battery only if there was no consent; (3) In a prosecution for
assault and battery for a non-harmful touching, the Commonwealth bears
the burden of proving absence of consent; (4) S 13B does not establish
age 14 as the "age of consent" below which actual consent is immaterial
because ineffective, but merely provides a penalty for the nonconsensual
touching of a person under 14 more severe than that provided for the
nonconsensual touching of a person 14 or over; (5) The capacity of the
alleged victim to consent is a question of fact to be determined by the
trier of fact. In making such a determination, the age of the child is
crucial, but other factors, such as intelligence, maturity and
experience may be considered.
Assuming that these principles would apply in a prosecution under S 13F
for indecent assault and battery on a mentally retarded person, a nice
question remains: Would proof of mental retardation in any degree be
sufficient, *ipso facto*, to establish the alleged victim's incapacity
to consent effectively, or would it remain for the trier of fact to
weigh the degree of mental retardation along with other relevant factors
in determining the question whether actual consent was effective?
*Burke* suggests that the alleged victim's capacity to consent
effectively should be determined by the trier of fact on the basis of
all relevant factors.
The rule stated in *Burke* is well illustrated in *C. v. Appleby*, 402
N.E.2d 1051 (Mass. 1980), in which it was held that actual consent of a
sexual partner to an act of violence in an S&M relationship does not
protect the actor from liability for assault and battery. In *Appleby*,
the defendant, one of two male sexual partners, hit his partner with a
riding crop and, upon complaint of the victim, was prosecuted for
assault and battery. The defense was that the act was a sexual act in
private to which the victim had consented and was therefore lawful under
*Balthazar*. In affirming the conviction, the SJC held (402 N.E.2d at
1060-61): "The fact that violence may be related to sexual activity (or
may even be sexual activity to the person inflicting pain on another as
[the defendant] testified) does not prevent the State from protecting
its citizens against physical harm. The invalidity of the victim's
consent to a battery by means of a dangerous weapon would be the same,
however, whether or not the battery wa related to sexual activity."
III. Privacy
No statute has been found defining what is public and private, but the
cases are illuminating. The SJC stated the rule in general terms as
follows:
The rationale of GLc.272. S 35 is to prevent the
open flouting of community standards regarding sexual
matters... The statutory object is to prevent the
possibility that the defendant's conduct might give
offense to persons present in a place frequented by
members of the public for reasons of business,
entertainment or the like... However, the statute is
not designed to punish persons who desire privacy
and who take reasonable measures to secure it... The
essential query is whether the defendant intended
public exposure or recklessly disregarded a
substantial risk of exposure to one or more persons...
Conduct is not established as public merely because
another person observes the conduct... The
Commonwealth must prove that the likelihood of being
observed by casual passersby must have been
reasonably forseeable by the defendant, or stated
otherwise, that the defendant acted upon an
unreasonable expectation that his conduct would
remain secret. [*C. v. Ferguson*, N.E.2d 1365, 1367
(Mass. 1981)]
In *Ferguson*, the defendant on a very cold night picked up a woman in
his car and drove to the rear of a dark, public parking lot where the
woman performed consensual fellatio upon him. Police who observed the
pick-up followed the defendant into the parking lot, shone a flashlight
into the car, and arrested both persons. The defendant was convicted
under S 35 or committing an unnatural and lascivious act. After
reviewing in detail the evidence bearing on the question whether the
defendant should reasonably have forseen that the conduct might be
observed by casual passersby, the SJC concluded that the prosecution had
failed to prove its case and gave judgement for the defendant. Three
justices dissented. They agreed that "it is incumbent upon the
Commonwealth to prove that the act occurred in a public place," but
suggested "that there can be no reasonable expectation of privacy in a
case like this where an automobile maneuvers in an urban area," and
added "that the defendants similarly situated in future cases, may not
take much comfort from the instant case, since it seems clear...that the
majority opinion is suggesting that the Commonwealth could have made
its case with a few easily provable, added facts." 422 N.E.2d at 1369.
In *C. v. Scagliotti*, 371 N.E.2d 726 (Mass. 1977), the defendant was
convicted of the common law crime of soliciting a person to commit a
felony, namely, an unnatural and lascivious act with another person
under S 35. The events took place in a "mini-movie" theater that
exhibits sexually explicit films in small cubicles. The defendant
entered a cubicle where a detective was standing and offered to perform
an "unnaturla act." The cubicle accommodated two persons, and when its
door was closed a red light warned other persons not to enter. In
reversing the conviction and remanding the case for a new trial, the SJC
held that the trial judge had erred in instructing the jury that the
cubicle was a public place as a matter of law, and declared:
A consensual unnatural act must be committed in a
public place in order to be punishable under...S 35...
The public nature of the consensual act is an
essential element to be proved by the prosecution...
[The] testimony [on the issues of whether the cubicle
in fact afforded privacy] was susceptible to
conflicting interpretations, and where inferences
might be drawn from the testimony upon a certain
point, the question must be submitted to the jury...
371 N.E.2d at 727.
IV. Solicitation
The defendant in *C. v. Scagliotti* was convicted of soliciting another
to commit an unnatural and lascivious act under S 35. The SJC stated
the issue before it to be simply "whether the defendant had offered to
commit the act in a public place," and it held that if a jury found that
the defendant's offer was to commit the act in a private place, the
defendant could not be convicted.
In *C. v. Sefranka*, 414 N.E.2d 602 (Mass. 1980), the defendant was
convicted of being a "lewd, wanton and lascivious person in speech or
behavior" in violation of c.272. S 53. The undisputed facts were that
the defendant, who had parked his car in a rest area of a public road,
approached a plainclothes detective in an unmarked car in the rest area,
and invited the officer to return with him to his house for oral
copulation. The officer refused to leave the rest area indicating that
he wanted the sexual activity to take place there. The defendant said
it was not safe at the rest area and drove away, and was arrested soon
after. The SJC reversed the conviction on the ground that the "lewd,
wanton and lascivious persons" provision "was unconstitutionally vague
as construed by our past decision in effect at the time of the
defendant's conviction." It construed the 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, 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." 414 N.E.2d at 608.
It should be noted, however, that the provision of S 53 prohibiting
"common night walkers, both male and female" was held to cover the
solicitation of one who is abroad at night of people to have "illicit
sexual intercourse" without in any way excluding the solicitation of
acts to be conducted in private in the earlier case of *Thomas v. C.*,
243 N.E.2d 821 (Mass. 1969). Such pertinent facts as whether Thomas was
convicted on the basis of one, a few or many solicitations, and whether
the acts solicited were to be performed in private, do not appear from
the opinion. Since the decision in *Balthazar*, it seems unlikely that
one could be convicted as a common nightwalker for one public
solicitation for the commission of a sexual act in private where no
compensation is to be paid by one party to the other (see section on
prostitution, below).
Also notable is *Riegle v. Terrazzi*, 417 N.E.2d 1227 (Mass.App. 1981),
in which a reporter for Gay Community News (Boston) sought a preliminary
injunction against a police campaign to suppress sexual activity in the
men's room of the Boston Public Library. The reporter alleged that the
police had engaged in provocative sexual activity to entrap people, and
that when plaintiff stood outside the men's room to get information for
a news story, the police had ordered him away on threat of arrest. The
Appeal Court affirmed the denial of injunctive relief, stating that the
record furnished no basis for finding abuse of discretion by the police.
The court stated, however, that upon a more complete record "there later
may be presented questions concerning a proper balance between (a)
protecting the access of Gay Community News to information of obvious
interest to its readers, and (b) proper police operations to suppress
what may be either criminal activity (GLc.272, S 16) or an ongoing
nuisance." The court indicated that an adequate presentation of
evidence ought to include "(a) the extent of any nuisance created by
users of, or by misconduct in, the men's room of the Library; (b) any
specific misconduct, such as entrapment or provocation, or other
inappropriate behavior, by the police...; (c) whether... reporters
could proceed with their operations without obstruction or embarrassment
of proper police operations;... (d) any unreasonable harm to Riegle or
his employer." 417 N.E.2d at 1229.
V. Prostitution
The only statute that deals with prostitution is the provision of
GLc.272, S 53 penalizing "common night walkers," prostitutes, etc. In
*C. v. King*, 272 N.E.2d 196 (Mass. 1977), female prostitutes convicted
under this section appealed alleging the statute unconstitutionally
discriminated against women because female prostitutes were prosecuted
while male prostitutes and male customers of prostitutes were not. The
SJC affirmed the conviction on the ground that S 53 applies to male
prostitutes as well as female prostitutes and that there was no evidence
in the record of discriminatory enforcement. It concluded that the law
did not punish persons who hire or seek to hire another to engage in
sexual activity but held that this did not violate the defendants'
constitutional right to equal protection because "S 53 was designed to
attack merely one phase of the problem," and "the legislature may select
one phase of one field and apply a remedy there, neglecting others." 372
N.E.2d at 203-04.
VI. Penalties. Penalties under those statutes which remain enforceable
are as discussed in connection with each statute.
[NOTE: Gay Community News reporter Larry Goldsmith informs me that since
this document was originally written, the SJC wrote an opinion upholding
c.272, S 14 (adultery): *C. v. Judith Stowell*. The SJC also apparently
ruled in favor of Burke in *C. v. Burke* (indecent assault and battery
on child under 14-- G.L.c.265, S 13B).]