Muir, District Judge.
Alexander Paul Brewer, a convict at the Lewisburg Federal Penitentiary, was charged with assault with intent to commit sodomy and with the act of sodomy itself,
in violation of the Pennsylvania Penal Code.
The Code is made applicable to crimes committed by prisoners in federal custody by the Assimilative Crimes Act.
The Defendant was acquitted by a jury of the assault count but was convicted on the sodomy count. Defendant moved for an acquittal n.o.v. on the sodomy conviction, challenging the constitutionality of the statute. The court denied the motion and this opinion sets forth the reasons for the denial. For purposes of the motion, considering the jury finding, the act of anal sodomy engaged in by Defendant with a fellow prisoner must be deemed consensual. The Defendant claims that he should be free to engage in sodomy in prison. Sodomy statutes may well be constitutionally suspect as to the general population. We express no opinion thereon. However, in my view, the statute is constitutional as to this inmate Defendant.
The issue raised by the Defendant's motion entails a determination of the appropriateness of the Defendant's raising the possible facial unconstitutionality of the statute as applied to a situation where its existence can be justified.
The view of sodomy as a sin goes back to the basic tenets of the Jewish faith which characterized the act as an "abomination."
The repugnance to sodomy was carried into Christian ideology and was left by the common law to the jurisdiction of the ecclesiastical courts. The 18th Century American legislatures forbade sodomy to express moral outrage at the act itself and to prevent a general deterioration of the moral fiber of the populace. The attitude of those prohibiting this so-called victimless sexual crime was that any sexual act not leading to procreation was sinful.
While there has been no Supreme Court decision on the precise issue of the constitutional validity of statutes aimed at preventing "deviant sexual conduct," the apparent trend of recent decisions would indicate that such a right among or between consenting adults does exist.
The broad "victimless" Pennsylvania sodomy statute involved in the instant case certainly cannot even claim a purpose as weighty as that of the abortion statutes struck down as unconstitutional, where harm to the fetus was brought into question.
There are several state and lower federal court cases dealing with sodomy between married couples and between homosexuals. Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970), opinion vacated in Wade v. Buchanan, 401 U.S. 989, 91 S. Ct. 1221, 28 L. Ed. 2d 526 (1971) on different grounds; U.S. v. Doe, 12 Crim. L. Rep. 2531 (D.C. Sup. Ct. 1973). As with the contraceptive cases, the court [rule] will probably apply a balancing test, weighing the purpose of the sodomy statute in expressing moral outrage at such conduct against the right of privacy and the changing motiff of sexual conduct within which deviant views should be permitted to exist.
If the simple question of adult consensual sodomy were involved, this Court might strike down the statute. However, the conduct of Alexander Paul Brewer occurred in prison, where the rationale for regulation of the conduct at issue is strong. While imprisonment results in the forfeiture of certain rights, it does not extinguish all claims to protection from unconstitutional or illegal regulation and procedure. Gittlemacker v. Prasse, 428 F.2d 1 (C.A. Third Cir. 1970), Gray v. Creamer, 465 F.2d 179 (C.A. Third Cir. 1972). Aside from the inevitable diminished right to privacy in prisons, there exists the need to regulate activities in prisons which in other settings would be unnecessary.
Prison rapes are a serious problem. The psychological effect upon the victim may be serious and may reduce the chances of rehabilitation, slim as they are under present conditions. Perhaps forward-looking legislative and administrative reforms with respect to conjugal visits will alleviate the problem of prison rape. Considering the fact that inmates are in need of protection from sexual and other assaults encountered in prison, prohibition of consensual sodomy in prison cannot be viewed as unconstitutional legislation. It is not necessary to reach the result in this case on the basis of finding an absence or near absence of a prisoner's right to privacy. The interest in preventing disorder in prison and injury to prisoners is sufficient to justify the existence of a prison regulation, or a state or federal statute, prohibiting consensual acts of sodomy between prison inmates. Two additional factors to be considered in balancing the state's interest in proscribing a prisoner's conduct against asserted constitutional rights or privileges are: (1) the threats of violence which may cause a victim to "consent" to sodomy, and as a corollary, the difficulty in proof, and (2) the very tense and potentially dangerous situation existing within the prison confines as opposed to society at large. These additional factors convince the court that "consensual" sodomy between prison inmates may be validly prohibited.
We have held in effect that the Defendant has standing to litigate the constitutionality of the sodomy statute as applied to him, but this does not, as a matter of constitutional construction, allow him to raise the question of the possible facial invalidity of the statute as applied to others.
A Defendant in a criminal action certainly has an "injury in fact," which is more than an injury to a "cognizable interest." Sierra Club v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). In other words that the Defendant is allowed to mount an attack on the constitutionality of the statute as applied to him does not also automatically enable the Defendant to prevail on his constitutional challenge simply because the statute might suffer some infirmity as to other individuals. He must establish a reason why the rule of United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960) disallowing the utilization of third party rights, should not be followed in his case.
United States vs. Raines was a 15th Amendment case holding that a defendant prosecuted in a criminal action, who was clearly involved in state action, would not be permitted to assert the rights of a hypothetical third party to invalidate the entire statute which as written was applicable to individuals involved in private acts of voter discrimination. The principle as stated is:
". . . one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional . . ." 362 U.S. at p. 21, 80 S. Ct. at p. 522.