New York Law Review

Tag: Consensual Sodomy

  • People v. Uplinger, 58 N.Y.2d 936 (1983): Public Solicitation and Consensual Sodomy

    People v. Uplinger, 58 N.Y.2d 936 (1983)

    A statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is unconstitutional when the conduct it seeks to prevent (consensual sodomy) has been decriminalized.

    Summary

    The New York Court of Appeals held that a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse was unconstitutional. The court reasoned that since consensual sodomy had been decriminalized, the state no longer had a legitimate interest in punishing conduct anticipatory to that act. The majority opinion reasoned that the loitering statute was essentially a companion to the sodomy statute, and therefore, suffered the same constitutional deficiencies. The dissent argued that the statute was a valid effort to regulate public conduct and prevent harassment, regardless of the legality of the intended private act.

    Facts

    Two defendants, Uplinger and Butler, were arrested and charged under New York Penal Law § 240.35(3), which prohibits loitering in a public place for the purpose of soliciting another person to engage in deviate sexual intercourse or other sexual behavior of a deviate nature. Specific details of their conduct leading to arrest are not emphasized in the majority opinion, but the dissent notes that Butler was flagging down cars and making overt offers to sell sexual favors.

    Procedural History

    The defendants were convicted at the trial level. The cases reached the New York Court of Appeals, which reversed the convictions, holding the statute unconstitutional. The court did not provide specific details of lower court rulings.

    Issue(s)

    Whether a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is constitutional when the conduct ultimately contemplated (consensual sodomy) is no longer criminal.

    Holding

    No, because the state has no legitimate interest in punishing conduct anticipatory to an act (consensual sodomy) that is no longer criminal. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy; inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, the court perceived “no basis upon which the State may continue to punish loitering for that purpose.”

    Court’s Reasoning

    The court reasoned that the loitering statute was a companion statute to the consensual sodomy statute, which the court had previously struck down as unconstitutional in People v. Onofre, 51 N.Y.2d 476 (1980). The court in Onofre held that the state could not prohibit consensual sexual conduct between adults in private. Because the loitering statute targeted conduct intended to lead to such consensual acts, the court found it to be similarly unconstitutional. The majority opinion emphasizes that since the ultimate act is now legal, the state lacks a basis to punish actions leading up to it. The dissent strongly disagreed, arguing that the statute was a valid exercise of the state’s police power to regulate public conduct and prevent harassment. The dissent referenced the Model Penal Code, which supports statutes that prohibit public solicitation of deviate sexual relations to prevent public nuisance and harassment. The dissent also argued that the majority implicitly applied the overbreadth doctrine inappropriately and that a narrower interpretation of the statute (requiring an overt act of solicitation) would render it constitutional. The dissent argued that the statute was not vague because it sufficiently informs a person of ordinary intelligence of the prohibited conduct. The dissent further noted that the statute bears a reasonable relation to the public good by protecting individuals from harassment in public places. Ultimately, the majority focused on the decriminalization of consensual sodomy as the controlling factor, while the dissent emphasized the state’s interest in regulating public behavior.

  • People v. Onofre, 51 N.Y.2d 476 (1980): Consensual Sodomy Statute Violates Right to Privacy and Equal Protection

    People v. Onofre, 51 N.Y.2d 476 (1980)

    A state law criminalizing consensual sodomy between adults in private violates the constitutional right to privacy and equal protection.

    Summary

    The New York Court of Appeals held that Penal Law § 130.38, which criminalized consensual sodomy, was unconstitutional. The defendants were convicted under this statute for engaging in deviate sexual intercourse. The Court reasoned that the statute infringed upon the right to privacy by regulating private, consensual sexual conduct between adults. Furthermore, it violated the equal protection clause because it discriminated between married and unmarried individuals, criminalizing the same conduct for the latter while permitting it for the former without any rational basis.

    Facts

    Defendant Onofre admitted to committing acts of deviate sexual intercourse with a 17-year-old male in his home.

    Defendants Peoples and Goss were convicted after evidence showed they engaged in oral sodomy in a parked car.

    Defendant Sweat was convicted after evidence showed she committed a similar act with a male in a parked truck in a residential area.

    Procedural History

    In Onondaga County Court, Onofre’s motion to dismiss the indictment based on constitutional grounds was denied, leading to his conviction.

    In Buffalo City Court, motions to dismiss by Peoples, Goss, and Sweat, arguing the statute’s unconstitutionality, were also denied, resulting in their convictions.

    The Appellate Division, Fourth Department, reversed Onofre’s conviction, declaring the statute unconstitutional, while the Erie County Court affirmed the convictions of Peoples, Goss, and Sweat.

    The cases were consolidated before the New York Court of Appeals.

    Issue(s)

    1. Whether Penal Law § 130.38, criminalizing consensual sodomy, violates the constitutional right to privacy of adults engaging in such conduct in private?

    2. Whether Penal Law § 130.38 violates the equal protection clause by discriminating between married and unmarried persons without a rational basis?

    Holding

    1. Yes, because the statute infringes on the right of independence in making important personal decisions and engaging in conduct accordingly, absent a valid basis for state intrusion.

    2. Yes, because the statute discriminates between married and unmarried persons without any rational relationship to a legitimate state interest.

    Court’s Reasoning

    The Court grounded its decision on the right to privacy, which encompasses the freedom of conduct and personal decision-making. Citing Stanley v. Georgia, the Court highlighted the right to be free from unwarranted governmental intrusion into matters fundamentally affecting a person.

    The Court distinguished the case from People v. Shepard, which upheld the prohibition of marijuana possession, because there was no evidence presented to suggest that consensual sodomy was harmful to the participants or society.

    The Court emphasized that the right to privacy protects individual decisions about sexual intimacy by unmarried persons and the satisfaction of sexual desires in a cloistered setting. The People failed to demonstrate how banning consensual sodomy promotes public morality or protects the institution of marriage. The court noted, “Personal feelings of distaste for the conduct sought to be proscribed by section 130.38 of the Penal Law and even disapproval by a majority of the populace…may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision protected under the right of privacy drawn from the United States Constitution.”

    Regarding equal protection, the Court found no rational basis for the law’s discrimination between married and unmarried individuals. Citing Eisenstadt v. Baird, the court reiterated that differential treatment must be rationally explained. The prosecution’s justifications—protecting marriage and the rights of married persons—lacked any demonstrable connection to the statute’s proscription of consensual sodomy. The Court stated, “no showing has been made as to how, or even that, the statute banning consensual sodomy between persons not married to each other preserves or fosters marriage.”