On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
Defendant was indicted for assault with intent to commit sodomy (N.J.S.A. 2A:90-2), sodomy (N.J.S.A. 2A:143-1) and impairing the morals of a child (N.J.S.A. 2A:96-3). Prior to trial, on the prosecutor's motion, the count charging defendant with impairing the morals of a minor was dismissed because the alleged victim was over 16 at the time of the incident generating the charge. At the conclusion of the State's case the trial judge dismissed the sodomy count for failure of the State to prove penetration.
The case against defendant was submitted to the jury on the charge of assault with intent to commit sodomy and attempted sodomy as a lesser included offense thereof. The jury found defendant guilty of assault with intent to commit sodomy. As interpreted by our courts, sodomy includes anal intercourse and bestiality, but does not include fellatio or cunnilingus. See State v. Morrison , 25 N.J. Super. 534 (Cty. Ct. 1953); State v. Pitman , 98 N.J.L. 626 (Sup. Ct. 1923), aff'd 99 N.J.L. 527 (E. & A. 1924). Emission is not required. State v. Taylor , 46 N.J. 316, 334-335 (1966).
The prosecution arose from an incident which occurred on July 23, 1975 in the Township of Dover, Ocean County. The alleged victim, N., a male slightly over 16 years old, testified that he was hitchhiking at night and was picked up by defendant. N. agreed to go to defendant's home for an alleged party. They arrived at defendant's home at about 10:45 P.M. No one else was present, making N. suspicious. N. said that he told defendant he wanted to leave and that defendant then struck him on the forehead. N. said he became very scared and withdrawn. Sexual activity then took place after both partially disrobed. Defendant got on top of N., tongued his ear, put his mouth on N.'s penis, and put his penis between N.'s buttocks. N. said that after about one-half hour he ran from the house, walked to his home a mile and a half away, and went to bed. The next day N. told his mother about the episode and a complaint was made to the police.
At trial defendant, through counsel, contended that any sexual activity between the two was consensual, nonviolent, and did not include attempted anal intercourse. The trial judge ruled that proof of consent was irrelevant. Defendant asserts that he did not testify at trial because of the court's ruling on the consent issue.*fn1
Defendant's principal contention on appeal is that the trial judge erred in precluding any affirmative evidence or cross-examination on the alleged victim's consensual participation in the episode. The case was tried in September 1976 when the question of the criminality of sodomy between
consenting males over 16 years of age was controlled by State v. Lair , 62 N.J. 388, 396-397 (1973). The Supreme Court in Lair had rejected defendant's contention that the constitutional right of privacy immunizes unmarried participants in the act of sodomy from prosecution, although the court there recognized that the act was noncriminal when performed by married persons. Id. at 396. In rejecting defendant Lair's contention that constitutional considerations demanded decriminalization of private, consensual sodomy the Supreme Court stressed the legislative alternative to judicial reformation of this aspect of our penal law, stating:
We think it worth mentioning that several of the problems raised by the arguments presented upon this appeal would readily respond to appropriate legislation. We call especial attention to provisions appearing in the proposed New Jersey Penal Code submitted as part of the Final Report of the New Jersey Criminal Law Revision Commission (1971). Section 2C:14-2 is entitled "Sodomy and Related Offenses." This proposal "excludes from the criminal law all sexual practices not involving force, adult corruption of minors, or public offense . . . based on the grounds that no harm to the secular interests of the community is involved in a typical sex practice in private between consenting adult partners. This area of private morals is the distinctive concern of spiritual authorities." 2 N.J. Penal Code: Commentary, 196. The wisdom of this or of any other like proposal is, of course, purely a matter for legislative determination. [at 397-398]
A concurring opinion by Chief Justice Weintraub expressed "reservations as to the constitutionality of the application of the sodomy statute to a consensual act between adults committed in private" but concluded that "this is not the case in which to grapple with the constitutional issue" because "there was no room for a finding that the anal penetration was consented to." Id. at 399.
However, several decisions of our Supreme Court since State v. Lair, supra , convince us it has been implicitly overruled insofar as it affirms the criminality of consensual homosexual sodomy ...