For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Schreiber and Handler. For affirmance -- Justices Mountain and Clifford. The opinion of the Court was delivered by Pashman, J. Schreiber, J., concurring. Clifford, J., dissenting. Justice Mountain joins in this opinion. Schreiber, J., concurring in the result.
Defendant Charles Saunders was indicted along with Bernard Busby on charges of rape, assault with intent to rape and armed robbery. At trial both admitted to having had sexual intercourse with the two complainants, but insisted that the women had participated willingly in exchange for a promise that they would receive "reefers" (marijuana cigarettes) in return. The trial judge, on his own initiative, charged the jury that the defendants could be convicted of the "lesser included offense" of fornication (N.J.S.A. 2A:110-1) if they were found not guilty on the other counts. The jury acquitted the defendants of the charges in the indictment and convicted them of fornication.
Defendant made a timely motion for acquittal based on the alleged unconstitutionality of N.J.S.A. 2A:110-1. The trial court permitted the presentation of expert testimony and documentary evidence in support of defendant's contention that the statute was selectively enforced. Following hearings in which evidence relating to contemporary sexual habits and psychiatric views of sexual activity was introduced, the court issued an opinion upholding the constitutionality of the statute. 130 N.J. Super. 234 (Law Div. 1974). The Appellate Division affirmed, 142 N.J. Super. 287 (1976), and we granted defendant's petition for certification. 71 N.J. 502 (1976).
The incident precipitating this criminal prosecution occurred in Newark during the early morning hours of July 23, 1973. According to the two complainants, the defendant, Busby and a third man forcibly seized them on the street
as they were walking home from a bar where they had spent the evening. A brief struggle ensued culminating with the women being forced into a car and being driven to a deserted parking lot where the complainants allege they were forced to engage in sexual intercourse with the men. The women did not try to escape, allegedly because defendant and Busby were armed.
After each of the three men had engaged in sexual intercourse with both women, one of the women revealed that she was pregnant. She said that the men then became scared and quickly ejected the two women from the car, leaving them in the parking lot. The women subsequently reported the incident to a police officer who took them to the hospital. Only one woman was examined, and her medical report contained no reference to trauma in the genital area.
On cross-examination, both women admitted that they had been arrested for prostitution in the past and that they were currently under indictment for unspecified crimes. One woman denied that she had actually been engaging in prostitution when she was arrested. The other conceded that she had solicited money from men on several occasions, but denied that she had demanded any payment from the defendants or given her consent to the acts of sexual intercourse.
Both defendant and Busby testified in their own behalf. Both insisted they were driving home from New York City, where they had been visiting friends, when the two women attracted their attention by calling out to their passing vehicle. They circled the block and returned to pick up the women. Upon getting into the car, the women asked if they had any "reefers." The men decided to lie, saying that they did. Encouraged by this information, one of the women directed them to the parking lot where, after some more discussion about the reefers, she volunteered to have sexual relations with the men. Her companion also agreed, and the men proceeded to have sexual relations with each woman.
Both defendants flatly denied having any weapons or using any force.
According to the defendants, the women renewed their requests for some reefers, and the men finally admitted that they had been lying and had none. Enraged, the women indignantly demanded $10 for each act of sexual intercourse. The men refused to pay and the argument became more heated. It ended abruptly when the men pushed the two women out of the car and drove off.
Following this testimony, the judge informed counsel that he was considering the possibility of charging the jury with respect to the crime of fornication as a lesser included offense of rape. Defense counsel made an objection on the record, pointing out that the statute was in "disrepute" and rarely applied. The prosecutor stated that he would neither request nor oppose such a charge. He did suggest, however, that such a charge might be required by the defendant's admissions of sexual relations with the women.
The trial judge did not reveal his decision to so charge until completion of summations by both sides. Defendant's attorney objected again, and the judge replied:
Here is a situation in which there appears to be, and it is up to the jury to decide, an open admission in court of fornication, and I don't think the Court can ignore it since it is in the statute.
In charging the jury, the judge defined that crime of fornication as "an act of illicit sexual intercourse by a man, married or single, with an unmarried woman." He placed the burden on the State to prove that the act occurred, but he made no reference to proof of the marital status of the complainants.
Defense counsel once again objected to the fornication charge. He disputed the court's conclusion that fornication was truly a lesser included offense of rape, since one of its elements required proof that the woman be unmarried.*fn1 The
trial judge responded that his "recollection" was that both women had testified that they were not married. Defendant's counsel disagreed, although he was not certain. Counsel for Busby also objected on the ground that fornication was not a lesser included offense of rape.
The jury deliberated for about 20 minutes before seeking further advice from the court concerning the relationship between fornication and the other crimes.*fn2 The court suggested that the jury consider the charges in descending order of gravity, starting with rape and considering fornication only if it found the defendants not guilty of the more serious offenses. At the urging of defense counsel, the judge stated that a verdict of guilty on the fornication charge would necessarily include a finding of consent by the women, precluding a conviction for rape or assault. The prosecutor made no objection to this additional clarification. Shortly thereafter, the jury returned its verdict of guilty on the two fornication counts and not guilty on all other counts.
Defendant was fined $50 and his co-defendant, who had spent seven months in jail awaiting trial, was sentenced to "time spent."
Despite undisputed evidence of widespread nonenforcement of N.J.S.A. 2A:110-1, the trial judge found an insufficient showing of selective and purposeful discrimination based on an arbitrary or invidious classification.*fn3 He stated that
"the very nature of the crime makes enforcement difficult" and held further that defendant's conviction did not deny him equal protection or due process. 130 N.J. Super. at 241-43. Although agreeing that Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) had expanded the right of privacy to include unmarried individuals, the trial judge did not think that the decision had undermined the reasoning of this Court in State v. Lutz, 57 N.J. 314 (1971) and State v. Clark, 58 N.J. 72 (1971) upholding the constitutionality of N.J.S.A. 2A:110-1. He concluded that the State's interests in preventing venereal disease and illegitimacy were sufficiently "compelling" to justify prohibiting sexual relations by unmarried persons. Id., 130 N.J. Super. at 243-44. These interests, he felt, established a valid secular purpose which overcame any claim that the law was designed to uphold a particular religious conception of morality. Id. at 244.
The Appellate Division affirmed the decision below for substantially the same reasons, adding a reference to the United States Supreme Court's summary affirmance in Doe v. Commonwealth's Attorney for City of Richmond, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh. den. 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976), aff'g 403 F. Supp. 1199 (E.D. Va. 1976).
The State asserts that this Court should refuse to consider defendant's constitutional claims based on the selective enforcement of this statute and its infringement on the right of privacy because he has no standing to press these arguments. This contention, which was raised for the first time on appeal, rests on the general principle that a litigant as to whom application of a statute would be constitutional lacks standing to attack the statute by asserting the constitutional rights of others. United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524, 529 (1960); In re Quinlan, 70 N.J. 10, 34 (1976), cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976); State v. Norflett, 67 N.J. 268, 276 and n. 6 (1975); State v. Young, 57 N.J. 240, 252-254 (1970); State v. Monteleone, 36 N.J. 93, 100 (1961). The State urges also that the selective enforcement claim has no relevance to defendant's conviction because the trial court, rather than the prosecutor, placed the issue of fornication before the jury. Similarly, the State suggests that any privacy interests defendant may have are inapplicable to conduct which involved several other persons and occurred in a public place.
Unlike the United States Constitution, our State Constitution contains no provision limiting the judicial power to cases or controversies. However, this Court has recognized that rules of standing are necessary if the courts are to properly respect the legislature's prerogatives with regard to its law-making functions. In re Quinlan, supra, 70 N.J. at 34-35; Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98 (1971); Walker v. Stanhope, 23 N.J. 657, 660 (1957). The rule which limits a criminal defendant to constitutional claims related to his own conduct rests on the principle that legislative acts are presumptively valid and will not be overturned on the basis of
hypothetical cases not actually before the court. State v. Young, supra, 57 N.J. at 253.
Defendant asserts that the instant statute, N.J.S.A. 2A:110-1, is unconstitutional on its face since it generally seeks to outlaw conduct which the State has no power to prohibit. It is important to distinguish this argument from one where a contention is made that a statute may be "invalid in its application in special circumstances or fringe areas." State v. Monteleone, supra, 36 N.J. at 99; State v. Young, supra, 57 N.J. at 252-53. Cases involving a claim that a statute is unconstitutional simply because some protected activity might conceivably be within its reach are too hypothetical to warrant review. Cf. United States v. Raines, supra, 362 U.S. at 21-22, 80 S. Ct. at 522-523, 4 L. Ed. 2d at 529.
Here the situation is quite the opposite. The elements which render the defendant's conduct unprotected have little to do with the underlying purposes of the law. N.J.S.A. 2A:110-1 seeks to prohibit all sexual relations between men and unmarried women,*fn4 regardless of the circumstances under which such acts occur. Thus, it is the normal application of the statute which the defendant seeks to challenge, not the "fringe" situations ordinarily involved in overbreadth attacks. We think it would be inappropriate to refuse to review the constitutionality of N.J.S.A. 2A:110-1 on the fortuitous ground that the defendant's act may have constituted a violation of other criminal statutes such as public or private lewdness. We therefore conclude that the salutary purposes of the usual rules of standing
should not operate in these circumstances to prevent defendant from challenging N.J.S.A. 2A:110-1 as unconstitutional on its face.