State v. Saunders
75 N.J. 200, 1977 N.J. LEXIS 274, 381 A.2d 333 (1977)
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Rule of Law:
A state statute criminalizing private, consensual sexual intercourse between adults (fornication) unconstitutionally infringes upon the fundamental right of privacy protected by both the U.S. and New Jersey Constitutions. The state's asserted interests in public health and morals are not sufficiently compelling to justify such an intrusion into personal autonomy.
Facts:
- On July 23, 1973, Charles Saunders and Bernard Busby were in a car in Newark when they encountered two women.
- According to the women, Saunders, Busby, and a third man forcibly seized them, forced them into the car, and drove them to a deserted parking lot.
- The women alleged that the men, who they claimed were armed, then forced them to engage in sexual intercourse.
- According to Saunders and Busby, the women willingly got into the car asking for marijuana cigarettes ('reefers').
- Saunders and Busby claimed the women directed them to the parking lot and voluntarily had sexual intercourse with them in exchange for the promise of reefers.
- After the sexual acts, the men admitted they had no reefers, which they claimed led to an argument where the women demanded money.
- The encounter ended when the men pushed the women out of the car and drove away.
Procedural Posture:
- Charles Saunders was indicted on charges of rape, assault with intent to rape, and armed robbery.
- At his trial in the New Jersey Superior Court, Law Division (trial court), the judge, acting on his own initiative, instructed the jury on the offense of fornication.
- The jury acquitted Saunders of rape and the other indicted charges but convicted him of fornication.
- Saunders filed a motion for acquittal, arguing the fornication statute was unconstitutional.
- After evidentiary hearings, the trial court denied the motion and upheld the statute's constitutionality.
- Saunders appealed to the New Jersey Superior Court, Appellate Division (intermediate appellate court), which affirmed the conviction.
- The Supreme Court of New Jersey (highest state court) granted Saunders's petition for certification to review the decision of the Appellate Division.
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Issue:
Does New Jersey's fornication statute, N.J.S.A. 2A:110-1, which criminalizes sexual intercourse between a man and an unmarried woman, unconstitutionally infringe upon the fundamental right of privacy?
Opinions:
Majority - Pashman, J.
Yes, the New Jersey fornication statute unconstitutionally infringes upon the fundamental right of privacy. The right of privacy, rooted in both the federal and state constitutions, has evolved to protect an individual's autonomy in making fundamental personal choices. The decision to engage in private, consensual sexual conduct is such a choice and is encompassed within the 'zone of privacy' established by cases like Griswold, Eisenstadt, and Roe v. Wade. The state's proffered justifications for the statute—preventing venereal disease, preventing illegitimacy, protecting marriage, and regulating public morals—are not compelling interests that can justify this significant intrusion. The statute is an ineffective and even counter-productive means to achieve public health goals and represents an inappropriate exercise of police power to regulate private, rather than public, morality.
Dissenting - Clifford, J.
This opinion does not directly answer the constitutional issue but argues the Court should not have reached it. The case should have been decided on the non-constitutional ground of whether fornication is a lesser included offense of rape. Adhering to the principle of constitutional avoidance is paramount, and a decision on the lesser-included-offense question could have resolved the case for the defendant without a broad constitutional ruling. The dissent suggests the parties should have been asked to submit further briefs on this procedural issue before the court addressed the constitutional question.
Concurring - Schreiber, J.
Yes, the fornication statute is unconstitutional, but this conclusion should be based on the New Jersey Constitution, not the U.S. Constitution. The majority misinterprets federal precedent; U.S. Supreme Court decisions have narrowly focused the federal right of privacy on matters of procreation and child-rearing, and have not extended it to all private, consensual sexual conduct. However, Article I, paragraph 1 of the New Jersey Constitution, which protects the 'natural and unalienable rights' to liberty and the pursuit of happiness, provides a broader, independent basis for a right of privacy that encompasses an individual's freedom to make personal decisions about private, consensual sexual activity. The statute, which is an attempt to regulate private morality based on religious concepts, violates this state constitutional right.
Analysis:
This decision marks a significant expansion of the right to privacy in New Jersey, applying it to protect the autonomy of unmarried individuals in their private sexual lives. By striking down the fornication statute, the court invalidated a long-standing 'morals' law, signaling a shift from state regulation of private morality to the protection of individual liberty. The case is notable for its reliance on the evolving federal privacy doctrine following Roe v. Wade and for the concurring opinion's robust argument for an independent, and potentially broader, right to privacy under the state constitution. This ruling aligns New Jersey with a modern jurisprudential trend that would later be affirmed nationally in Lawrence v. Texas, decriminalizing private, consensual sexual acts between adults.
