[130 NJSuper Page 236] Defendant, along with a companion, was indicted for rape, armed robbery and assault with intent to rape. Defendants had picked up the two complaining witnesses at an early morning hour on Springfield Avenue,
Newark, driven to the A & P parking lot on Frelinghuysen Avenue, and engaged in sexual activities. Afterward, having ejected the girls from the car, complaints were lodged with the police by the apparently willing victims. The jury verdict indicated acceptance of the defendant's version, sketched above, and resulted in an acquittal on all counts of the indictment.
During defendant's testimony all of the elements of fornication were freely admitted and the court, on its own initiative, charged fornication as a lesser included offense in addition to charges in the indictment. The jury returned a verdict of guilty as to both defendants. Defendant Saunder's attorney made timely objection to the court's charge, contending that the fornication statute was unconstitutional under recent decisions of the United States Supreme Court. N.J.S.A. 2A:110-1 reads as follows:
Any person who commits fornication is guilty of a misdemeanor, and shall be punished by a fine of not more than $50, or by imprisonment for not more than 6 months, or both.
Following the verdict the court imposed a fine of $50 on defendant; his co-defendant, who had spent seven months in jail awaiting trial on the charges, was sentenced to "time spent." A motion for judgment of acquittal was filed and the court agreed to a hearing to challenge the constitutionality of N.J.S.A. 2A:110-1. Defendant sought the opportunity to introduce testimony in order to meet the objection to a lack of record raised by the court in State v. Clark, 58 N.J. 72 (1971). In that case our Supreme Court declined to declare the fornication statute unconstitutional in the absence of a full record. Testimony was thereafter taken on behalf of defendant Saunders which is summarized in the following paragraphs.
Morton Hunt, a free-lance author who has written several articles on psychology and human sexuality, was the first to testify. His latest book, Sexual Behavior in the 1970's, has recently been published by Playboy Press (Chicago, 1974).
He testified that since the Kinsey reports (Sexual Behavior in the Human Male (1948); Sexual Behavior in the Human Female (1953) -- as reflected in Hunt's statistics and surveys -- there has been a marked increase in "permissiveness with affection" throughout society, and that the attitude of the public has dramatically shifted to tolerance of sexual intercourse between unmarried, consenting adults. He further testified that the largest portion of the population is under 35 years of age, and that premarital intercourse is generally acceptable to them, particularly where there is some affection. He projects that in ten years it will not only be the majority opinion, but the overwhelming opinion. Hunt admitted that his questionnaire did not mention the illegality of fornication, but only asked for attitudes toward it.
Gary Skoloff has been a member of the New Jersey Bar since 1959, specializing in matrimonial law for the last seven years. He testified that in his divorce work he came across many instances of violation of the adultery and fornication statutes, and that these were brought to the attention of the matrimonial judge, either in testimony or in conferences in chambers. He knew of no instance where a judge has remanded a party for prosecution. He admitted that marital matters are bitterly contested and stated that police have tended to discourage filing of such complaints against the spouse.
Dr. Richard Green is a professor of psychiatry specializing in human sexuality. His qualifications in the field are impressive. He testified that sexual tensions, resulting from the proscription of sexual activity, whether moral or legal, result in personality problems traceable to those proscriptions. Guilt feelings and anxiety are created, with residual psychological and sexual problems that are sometimes manifested many years later.
In addition to the oral testimony of Hunt, Skoloff and Green, there was admitted, without objection, and affidavit of Linda R. Blumkin, a member of the bar of New York and
admitted to practice in the federal courts. She was awarded the LL.M. degree by Harvard University in June 1973, based on a study involving a questionnaire survey sent to 1177 chief prosecutors, members of the National District Attorney's Association, with 426 responses. The subject matter of the questionnaire was fornication and cohabitation prosecutions in their respective jurisdictions. The eight New Jersey responses indicated that in the period from 1968 to 1972 there were 16 prosecutions (nationwide: 3241). Her conclusion was that "The New Jersey pattern -- with no enforcement by most prosecutors, and some enforcement by others -- was typical of prosecutors throughout the United States. Prosecutors who enforce these laws at all tend to do so repeatedly (although with varying frequency from prosecutor to prosecutor)." She further found that enforcement activities were not directed against racial or ethnic groups in proportion to their representation in their general population. Prosecution of males exceeded that of females (New Jersey prosecuted a greater percentage of males than the national average, ten cases involving white couples with two involving black). Prosecutors favored a repeal of these statutes in a ratio of seven to one. Ms. Blumkin concluded that the majority of prosecutors apparently view fornication and cohabitation as crimes which are, in a sense, punishable by marriage. She admitted that it was impossible to secure a random sample in her survey, thus making it impossible to tell to what extent the respondents are representative of the United States as a whole.
Defendant further submitted the results of a questionnaire addressed to municipal courts and police departments in Essex County. The 14 responding clerks of municipal courts and police departments stated there were no complaints or accusations of fornication filed in the last ...