This case involves the validity of two accusations of sodomy against the defendant, arising out of his lascivious and highly reprehensible conduct with two female children. The conduct alleged to have been engaged in consisted in: (1) an act of fellatio forced upon one of them, and (2) other acts approaching cunnilingus , although the completed perversion does not appear to have been committed. Pleas of non vult were taken to the accusations, but study of the details of the alleged offenses in preparation for sentencing led the court to raise the question whether the acts committed come within the denouncement of our sodomy statute. While one can feel no sympathy for the perpetrator of such loathsome acts upon the persons of children, the inquiry must nevertheless be made as to whether the misconduct charged constitutes sodomy or whether its certain criminality must rest upon the interdictions of other statutes. The immediate and major concern is with the legal nature of the act of fellatio or penetration per os; it is clear that the other acts do not constitute sodomy.
Sodomy is defined in the following terms in N.J.S. 2 A:143-1:
"Sodomy, or the infamous crime against nature, committed with man or beast, is a high misdemeanor, and shall be punished by a file of not more than $5000, or by imprisonment for not more than 20 years, or both."
It is readily apparent that the statute offers no direct guidance as to the kind or kinds of acts forbidden. The enactment suffers in this respect from the great concern for delicacy that has usually marked the treatment of this crime both at common law and in legislation. The offense has always been regarded as something so base and defiling as to be dealt with only in veiled terms. Latin was the medium of expression used in common-law indictments charging sodomy, and ancient and modern precedents are in accord that such indictments and informations need not be cast in particular terms descriptive of the act committed. State v. Pitman , 98 N.J.L. 626 (Sup. Ct. 1923), affirmed on opinion, 99 N.J.L. 527 (E. & A. 1924); Honselman v. People , 168 Ill. 172, 48 N.E. 304 (Sup. Ct. 1897); People v. Williams , 59 Cal. 397 (Sup. Ct. 1881); 2 Cooley's Blackstone, p. 1377. All in all, this calculated avoidance of indelicacy has resulted in quite some obscurity and uncertainty in dealing with a most heinous crime, the seriousness of which is attested by the fact that our Legislature has prescribed such a high penalty for its commission, and that in the early days of English law burying alive or burning to death was the punishment meted out. Cooley's Blackstone, supra.
Since there appear to be no precedents in this State on the subject of inquiry, our recourse must be primarily to the common law in determining the elements of the crime. State v. Pitman, supra. Sodomy was known by that name at common law and as "the infamous crime against nature." There can be no doubt, therefore, that our legislative declaration, using the same terminology, is rooted in the commonlaw concept of sodomy, and that a fair appraisal of the legislative intendment does not take us beyond such concept. Therefore, while the case law of other jurisdictions contains much that is instructive and thought-provoking, it is obvious that their pronouncements in expansion of the common-law doctrine cannot be accepted as sound precedents. Two principles must be accorded paramount importance in resolving the present problem: (1) penal statutes must be strictly construed (State v. Mundet Cork Corporation , 8 N.J. 359
(1952); State v. Meinken , 18 N.J. Super. 188 (App. Div. 1952), affirmed 10 N.J. 348 (1952); State v. Brenner , 132 N.J.L. 607 (E. & A. 1945)); and (2) if a change in the common law is to be effected by statute, the legislative intent to accomplish the change must be clearly and plainly expressed. (Blackman v. Iles , 4 N.J. 82, 89 (1950); Carlo v. The Okonite-Callender Cable Co. , 3 N.J. 253, 265 (1949)).
There is almost complete accord among text-writers that at common law commission of the crime required penetration per anum , and that penetration per os did not constitute the offense. 1 Wharton's Criminal Law (11 th ed.), sec. 754; 3 Russell on Crimes 249; 2 Bishop's Criminal Law (7 th ed.), sec. 1191; 2 McClain's Criminal Law , 1153; 3 Burdick on Crimes, p. 293 et seq. The only text-writer cited as authority for the claim that penetration per os was sodomy at common law is Hawkins. And the argument is made to rest solely upon his statement that: "All unnatural copulations, whether with man or beast, seem to come under the notion of sodomy." (1 Hawkin's Pleas of the Crown (Leach's ed.), p. 9.). This statement alone scarcely seems sufficient foundation for the broad criminal structure that it is supposed to bear. Even were it not for the uncertainty implied by the word "seem," it is fairly inferable that the author was merely saying that the term "sodomy" was broad enough to include not only acts committed between human beings, but also those performed between human beings and animals, the specific name for which is "buggery."
Undoubtedly the "source" case on the subject is Rex v. Jacobs, Russell & Ryan's Crown Cases , 331, decided in 1817. This case is the more remarkable because it appears to be the only reported English case in which the instant inquiry was squarely raised and ruled upon. The defendant had been convicted of sodomy on evidence that the act was perpetrated in the mouth of a seven-year-old boy. It was the opinion of the judges that this did not constitute sodomy and they directed that a pardon be applied for. While one is surprised by the dearth of English case law in this field,
the explanation might lie in the fact that the exclusive nature of the crime has been generally accepted, and prosecutions for sodomy have been restricted ...