For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Francis, J.
Defendants June Clark and Charles Barr were indicted and convicted after a jury trial on three charges of fornication. Miss Clark received a six months jail sentence which was suspended and she was put on probation for two years. Barr was sentenced to a total of three months imprisonment. The Appellate Division affirmed the convictions, State v. Barr, 110 N.J. Super. 365 (App. Div.), and we granted certification. 57 N.J. 132 (1970).
It is a matter of common knowledge that in these times criminal prosecutions for fornication are rare. The statute, N.J.S.A. 2A:110-1, which makes the act a misdemeanor punishable by a fine of not more than $50 or by imprisonment for not more than six months, or both, was included in our Crimes Act in 1796. Paterson's Laws 210 (1800 ed.).*fn1 The paucity of its use is indicated to some extent
by the fact that since the 1908 decision in State v. Sharp, cited in footnote 1, there seem to be only two other appellate cases arising from a fornication prosecution in our law reports, i.e., State v. Ruttberg, 87 N.J.L. 5 (Sup. Ct. 1915) and State v. Lutz, 57 N.J. 314 (1971), until the present appeal. However, we cannot accept the suggestions that the statute ought to be regarded as such a relic of ancient times, so out of tune with presently existing notions of morality, so discriminatorily administered, and so invasive of a protected zone of privacy as to require a holding that a person accused under it is denied equal protection and due process contrary to the Federal Constitution. In the absence of a factual record to show discrimination (and none is presented here), such arguments are primarily matters for legislative and not for judicial consideration. State v. Lutz, supra; State v. Barr, supra, 110 N.J. Super. at 368-369.*fn2
The circumstances out of which the indictments arose in this case are unusual and must be set forth for an understanding of the issues involved.
In July 1965, June Clark, being destitute, unmarried and the mother of two sons, one two years of age and the other three months old, applied to the Department of Welfare of the City of Paterson for financial aid. According to Miss Clark, after discussion of the matter with a representative
of the agency, she was told that before she could receive welfare benefits it would be necessary to file a bastardy complaint against Charles Barr who, she claimed, was the father of the children. In accordance with that direction, on July 7, 1965 she filed such a complaint against Barr in the Municipal Court of the City of Paterson.
Bastardy proceedings against the putative father may be instituted either by the mother of an illegitimate child or, if the child is likely to become a public charge, by the director of welfare of the municipality. N.J.S.A. 9:16-3, 9:17-2. It appears to be a common practice of municipal welfare departments throughout the State to request the mother of an illegitimate child who seeks public financial aid to bring a bastardy action against the putative father. (Obviously if she refused to do so, on its own motion the department may file the complaint in the name of the director of welfare. N.J.S.A. 9:17-2.) The purpose of the action is to establish paternity and to obtain an order of the court commanding the father to provide regular support for his child or children, thus relieving the public of that financial burden.
Although Miss Clark testified, without denial, that the welfare department ordered her to file the bastardy complaint against Barr as a condition to obtaining financial help for herself and her children, it is to be noted that under the statute initiation of such proceedings is not to be deemed "a condition precedent nor a deterrent to the granting of assistance or relief" to a person eligible therefor. N.J.S.A. 9:17-2. It is not necessary for this Court to consider the question whether Miss Clark was requested or ordered to file the bastardy complaint. No such issue is before us. The interest of welfare departments in having paternity proceedings brought in order to have the public relieved of the burden of support if possible, is understandable, and it is proper for them to seek that objective. We assume, however, that in such cases the needed financial aid is not withheld either from a mother who refuses to bring such an action, or
during the pendency of the proceeding, whether instituted by the mother or the department itself. To do so would be contrary to the clear language of the statute.
Bastardy is not a crime in New Jersey. A proceeding against a putative father is essentially a civil, not a criminal one. As indicated above, the primary objective is to compel the father who begot the illegitimate child to assume the duty of supporting it and secondarily to relieve the public of that obligation. State (F.) v. M., 96 N.J. Super. 335, 340-342 (App. Div.), certif. den. 50 N.J. 300 (1967); Leconey c. Overseer of Poor, 43 N.J.L. 406 (Sup. Ct. 1881). An adverse verdict on the issue of paternity does not establish a criminal record against the father.
Although bastardy is not a criminal offense, fornication is a crime. N.J.S.A. 2A:110-1. But as the prosecutor informs us, and as we may take notice, a criminal prosecution for fornication stemming from a bastardy proceeding is extremely rare. We may assume that once the paramount public purpose has been served by a paternity judgment and by a support order against the father, there has been little incentive for any criminal action for fornication -- at least as long as the adjudicated obligation to support is faithfully met. Moreover, both welfare authorities and criminal law enforcement agencies know that the most effective remedy for willful failure to comply with the support order is recourse to the contempt power which is designed to enforce continuing obedience by means of the imposition of substantial civil and criminal sanctions, if necessary.
It is unlikely that either the ordinary female whose necessitous circumstances impel her to seek welfare aid for her illegitimate children, or the putative father who is then brought into a civil bastardy proceeding by what the female believes is a command that she cannot ignore, realizes the incriminatory nature of the statements they make or are called upon to make. Obviously in most situations, the female, without thinking about it at all, admits the crime of fornication.
So, too, with the responsible male who, in many cases, quite freely acknowledges paternity and agrees before the municipal court to submit to an order for support. He does not think in terms of criminal inculpation. Unless both of them are represented by counsel, it seems most unlikely that in the ordinary case anyone connected with the welfare agency or the court would advise them of their possible exposure to criminal prosecution. The pertinent statute itself furnishes a clear indication of such unlikelihood. N.J.S.A. 9:17-11 provides that "upon the examination or trial [of a bastardy complaint], * * * the mother of the illegitimate child may be compelled to disclose the name of its father, and if she refuses the court * * * may * * * commit her for contempt * * *." As a consequence welfare representatives believing that the mother is compelled to name the father might well conclude that they are relieved of any duty to warn her about possible self-incrimination. However, there is no provision in either N.J.S.A. 9:16-1 et seq. or N.J.S.A. 9:17-1 et seq. which grants immunity from criminal prosecution for fornication to the mother for any inculpatory admission she makes whether the admission is compelled or made in ignorance of its possible consequences.
In this case when Miss Clark sought financial aid, the bastardy complaint reveals that she gave a written statement to the welfare board admitting voluntary sexual relations with Barr and naming him as the father of her two children. No one gave her any advice on the subject of self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The complaint, which was drawn pursuant to N.J.S.A. 9:16-3, alleged that June Clark had declared in writing that she had been delivered of two illegitimate children who were likely to become public charges of the City of Paterson. It further set forth that she had declared that Charles Barr, as a result of her sexual intercourse with him, was the putative father of the children. She swore to the complaint before the municipal court clerk
who likewise offered no information about her Fifth ...