[166 NJSuper Page 227] This case comes before the court on defendant's motion to dismiss each of the counts of the five-count indictment returned against him. Indictment 308-77-M charged in the first and third counts, respectively, that defendant, then a resident at the New Jersey Neuropsychiatric
Institute in Skillman, forcibly raped Eleanor Tintle and Justine Harvey, in violation of N.J.S.A. 2A:138-1. The second count charged defendant with sodomizing Eleanor Tintle, in violation of N.J.S.A. 2A:143-1, and the fourth and fifth counts respectively charged defendant with carnal knowledge of Eleanor Tintle and Justine Harvey, inmates of an institution for feeble-minded or mentally ill women, in violation of N.J.S.A. 2A:138-2.
Defendant urges dismissal of the first and third counts on the ground that there was insufficient evidence before the grand jury to establish the use of force by defendant and lack of consent by the alleged victims. He also argues that there was no evidence of force before the grand jury with respect to count two, charging sodomy, and that consensual sodomy is protected by the constitutional right of privacy. As to the fourth and fifth counts, defendant argues that there was insufficient evidence before the grand jury to establish that Eleanor Tintle and Justine Harvey were residents of an institution for feeble-minded or mentally ill women, that N.J.S.A. 2A:138-2 denies equal protection of the law on the basis of gender, and that it denies due process of law by creating an irrebuttable presumption that female inmates of mental institutions are incapable of consenting to sexual relations. Finally, defendant contends that the statute has been selectively enforced against him, thus denying him due process of law. For the reasons discussed below, defendant's motion to dismiss the indictment is granted as to the first, second, fourth and fifth counts, and is denied as to the third count.
I. Sufficiency of Evidence Before the Grand Jury
A motion to dismiss an indictment is addressed to the sound discretion of the court, which discretion should not be exercised to grant the requested relief, except upon the "clearest and plainest ground." State v. Chandler , 98 N.J. Super. 241, 245 (Cty. Ct. 1967); State v. Weleck , 10 N.J. 355
(1952). Although an indictment is presumed valid, "a defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency." State v. Graziani , 60 N.J. Super. 1, 22 (App. Div. 1959), aff'd 31 N.J. 538 (1960).
At the beginning of its term of service the grand jury panel is instructed as follows:
While evidence as to each element of a prima facie case must thus be presented to the grand jury to support the return of an indictment, the quantum of evidence required as to each element is not great. In State v. Donovan , 129 N.J.L. 478, 483 (Sup. Ct. 1943), it was held that an indictment returned without "some evidence" to support the charges amounted to grand jury misconduct, and that such an indictment should be quashed. Although "very little evidence" will suffice, (Holt v. United States , 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910); Costello v. United States , 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956)), "where evidence is clearly lacking it is the duty of the court to set aside the charges." State v. Ferrante , 111 N.J. Super. 299, 304 (App. Div. 1970).
To withstand defendant's challenge in the instant case, the first and third counts of the indictment charging forcible rape must be supported by some evidence in the transcript of grand jury testimony, as to the essential elements of force used by defendant and nonconsent on the part of the alleged victims. See State v. Terry , 89 N.J. Super. 445, 449 (App. Div. 1965).
The grand jury transcript reveals that Eleanor Tintle, the alleged victim in the first count, did not testify. Although
Justine Harvey initially denied ever being in a place with Eleanor Tintle, she later testified that "[Eleanor] got her clothes taken off and he got her first," that "[he] told Eleanor to lay down" and that "[he] [t]ook her and fuck[ed] her." Dory Ann Funchness, an assistant at the Neuropsychiatric Institute, testified that Eleanor has reported to her that "some man had just did it to her * * * and then she said he was doing it to somebody else." Detective Marilyn Pierangeli testified that at a photographic lineup, Eleanor Tintle identified defendant and indicated that he had pulled her pants off. Joan Cunningham, Assistant Director of Residential Living at the Neuropsychiatric Institute, testified that when defendant was questioned about the incident, [he] said that he had done it to the girls." In sum, this testimony indicated only that defendant had taken an active role in the alleged act of sexual intercourse, while Eleanor Tintle had assumed a role of passivity. Such evidence cannot alone support a rational inference that force was used by defendant or that Eleanor Tintle did not consent to having sexual relations with him. Moreover, even if uncontradicted, evidence that one partner in a sexual act was aggressive while the other partner was passive, clearly could not in and of itself justify conviction on a charge of forcible rape. Because count one of the indictment was returned by the grand jury without any rational evidence of force or nonconsent in the testimony before ...