BRIEF OF JORGE LOPES,
IN OPPOSITION TO STATE'S PETITION FOR WRIT OF CERTIORARI
AND IN SUPPORT OF HIS CROSS-PETITION FOR WRIT OF CERTIORARI T
THE PROVIDENCE COUNTY SUPERIOR COURT
STATE OF RHODE ISLAND v. JORGE LOPES
The defendant, Jorge Lopes, was charged with four counts of first
degree sexual assault, pursuant to R.I. Gen. Laws section 11-10-1 after a series of sexual
encounters with the complaining witness, Shirley Charney. The witness testified that she
accompanied the defendant to his residence as a result of fear and coercion and that once
there the defendant induced her through force and/or intimidation to submit to vaginal
intercourse, anal intercourse, and two acts of oral intercourse. The defendant testified
that three of the acts described by the witness had occurred but that the witness had
consented to all three. The jury's verdict found the defendant not guilty on all four
counts of first degree sexual assault; BUT, the defendant was found guilty on two
counts under the charge of Abominable and Detestable Crime Against Nature pursuant to R.I.
Gen. Laws section 11-10-1.
Section 11-10-1 provides that:
Every person who shall be convicted of the abominable and detestable
crime against nature, either with mankind or with any beast, shall be imprisoned not
exceeding twenty (20) years nor less than seven (7) years.
While consent is a valid defense to a charge of first degree sexual
assault, it is not a defense to a charge of crime against nature under 11-10-1. Following
the jury's verdict, the defendant filed a motion to arrest judgement pursuant to Rule 34
of the Rules of Criminal Procedure. The defendant argued on that motion that 11-10-1
unconstitutionally infringes on his right to privacy, to the extent that it prohibits
private, non-commercial, consensual sexual acts, such as those involved here. The
defendant also argued that the "discriminatory application" of 11-10-1 to
unmarried persons and not to married persons violated the Equal Protection Clauses of the
State and Federal Constitutions.
11-10-1 v. Right to Privacy
The defendant argued that 11-10-1, is unconstitutional. He acknowledged
such justifications for such laws such as interest in reserving public morality,
preventing violence, and preserving the integrity of marriage: but, he also pointed out
that these reasons were insufficient to continue to justify such laws in the majority of
courts and legislatures of other states. Fewer than half of the states retain statutes
like 11-10-1. The defendant urges the court to follow the trend of the majority of
jurisdictions and to strike down the application of 11-10-1 to this case.
Cases the defendant cited as examples of modern trend in this area:
Schochet v. State
Post v. State
People v. Onofre
State v. Pilcher
The court's consideration of this issue is governed by the decision of
the R.I. Supreme Court in State v. Santos. Santos involved facts strikingly
similar to those presented here. In the Santos challenge the court reviewed the
privacy decision of the U.S. Supreme Court, including:
Carey v. Population Services International
Doe v. Commonwealth's Attorney
Roe v. Wade
Eisenstadt v. Bair
Griswold v. Connecticut.
In the Santos decision, the court concluded that "we do not
believe that the decision of unmarried adult to engage in private consensual sexual
activities is of such fundamental nature or is so implicit in the concept of ordered
liberty to warrant its inclusion in the guarantee of personal privacy."
The Santos decision was handed down more than thirteen years
ago. The defendant urges the court to follow the contrary authority of other
jurisdictions. The court would not accept. If the Supreme Court were to consider the
privacy issue in light of recent legal and social trends, it would moderate its prior
positions possibly as a matter of state law. However, in the absence of such action, Santos
remains the controlling law in the jurisdiction and requires rejection of defendant's
privacy argument in this case.
11-10-1 v. Equal Protection clause
The defendant also argues that the "discriminatory
application" of 11-10-1 to unmarried persons and not to married persons violates the
Equal Protection Clauses of the State and Federal Constitutions. The Equal Protection
Clause is called into play when statutes are not universally applicable. Although the
clause does not deny the states the power to treat different classes of persons in
different ways, it does prohibit them from legislating different treatment on the
basis of criteria that is wholly unrelated to the objective of the statute. The dissimilar
treatment of different classes must be rationally related to a legitimate interest. A
statute may not infringe on the right to privacy but it may violate the Equal Protection
Clause if it treats similarly situated persons dissimilarly.
The statute at issue appears to concern itself primarily with moral
concerns. The question is whether married and unmarried persons are similarly or
dissimilarly situated with respect to the morality of sexual acts. The defendant used the
example of Eisenstadt where the court concluded that married and unmarried persons
cannot be dissimilarly situated with respect to moral behavior to support his argument. Eisenstadt
overturned the distribution on the ban of distribution of contraceptives to unmarried
persons, but not to married persons. The legislature's ability to implement this purpose,
however, was limited by the decision in Griswold v. Connecticut which protected the
right of married people to use contraception. Accordingly, the statute was made applicable
only to unmarried persons.
In Eisenstadt the court concluded that married and unmarried
persons cannot be said to be dissimilarly situated with respect to moral behavior. It is
not rationally related to the moral purpose of the law. As one court has stated,
to suggest that deviate acts are heinous if performed by unmarried
persons but acceptable when done by married persons lacks even a rational basis, for
requiring less moral behavior of married persons than is expected of unmarried persons is
without basis in logic. If the statute regulated sexual acts so affecting others that
proscribed by law would be justified, than they should be proscribed for all people, not
just the unmarried.
On its face, section 11-10-1 appears to comply with the dictates of
equal protection. It contains no exceptions for married persons. The Supreme Court
held that it was intended to make unlawful "all unnatural sexual copulation";
but, it is apparent in this court that in light of constitutional precedents, the section
could not constitutionally be applied to married persons because it would violate the
right to privacy inherent in the marital relationship. In the Griswold
decision, it was made abundantly clear that a prohibition against certain sexual acts
could not be applied against married persons.
Upon careful considerations of Supreme Court precedents, the court
concluded that section 11-10-1 could not be applied to married couples. Although this
issue is not directly before the court, it is critical to the defendant's equal protection
challenge. For, under the Equal Protection Clause, if the statute cannot constitutionally
be applied to married persons, it cannot be applied to unmarried persons, who are
similarly situated with respect to the purposes of the statute. Therefore, the court
concluded that, notwithstanding the Supreme Court I s decision in Santos, Eisenstadt,
when read in conjunction with Griswold, indicates the application of section
11-10-1 to unmarried persons is violative of the Equal Protection Clause.
While the ultimate result in this case is contrary to the result
reached in Santos, it does not conflict with that decision because the court did
not consider the equal protection issue in that case. This decision is also consistent
with the decision of courts in other jurisdictions which have considered equal protection
challenges to statutes like 11-10-1.
Lastly, the court is urging state legislature to consider repealing
11-10-1 in order to bring Rhode Island into line with the majority of states. This would
also avoid the dilemma of the lesser included offense request in first degree sexual
For the forgoing reasons, this court found that it improperly
instructed the jury to consider section 11-10-1 in this case. Defendant's motion for
arrest of judgement is therefore granted and this court need not reached the
constitutionality of the sentence provided for in 11-10-1.
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