75 N.J. 200 (1977) 381 A.2d 333

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES SAUNDERS, DEFENDANT-APPELLANT.

The Supreme Court of New Jersey.

Argued April 26, 1977. Decided December 13, 1977.

*202 Mr. Alan Silber, Designated Counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Silber, of counsel and on the brief).

*203 Mr. Roy B. Greenman, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

The opinion of the Court was delivered by PASHMAN, J.

Defendant Charles Saunders was indicted along with Bernard Busby on charges of rape, assault with intent to rape and armed robbery. At trial both admitted to having had sexual intercourse with the two complainants, but insisted that the women had participated willingly in exchange for a promise that they would receive "reefers" (marijuana cigarettes) in return. The trial judge, on his own initiative, charged the jury that the defendants could be convicted of the "lesser included offense" of fornication (N.J.S.A. 2A:110-1) if they were found not guilty on the other counts. The jury acquitted the defendants of the charges in the indictment and convicted them of fornication.

Defendant made a timely motion for acquittal based on the alleged unconstitutionality of N.J.S.A. 2A:110-1. The trial court permitted the presentation of expert testimony and documentary evidence in support of defendant's contention that the statute was selectively enforced. Following hearings in which evidence relating to contemporary sexual habits and psychiatric views of sexual activity was introduced, the court issued an opinion upholding the constitutionality of the statute. 130 N.J. Super. 234 (Law Div. 1974). The Appellate Division affirmed, 142 N.J. Super. 287 (1976), and we granted defendant's petition for certification. 71 N.J. 502 (1976).

I

The incident precipitating this criminal prosecution occurred in Newark during the early morning hours of July 23, 1973. According to the two complainants, the defendant, Busby and a third man forcibly seized them on the street *204 as they were walking home from a bar where they had spent the evening. A brief struggle ensued culminating with the women being forced into a car and being driven to a deserted parking lot where the complainants allege they were forced to engage in sexual intercourse with the men. The women did not try to escape, allegedly because defendant and Busby were armed.

After each of the three men had engaged in sexual intercourse with both women, one of the women revealed that she was pregnant. She said that the men then became scared and quickly ejected the two women from the car, leaving them in the parking lot. The women subsequently reported the incident to a police officer who took them to the hospital. Only one woman was examined, and her medical report contained no reference to trauma in the genital area.

On cross-examination, both women admitted that they had been arrested for prostitution in the past and that they were currently under indictment for unspecified crimes. One woman denied that she had actually been engaging in prostitution when she was arrested. The other conceded that she had solicited money from men on several occasions, but denied that she had demanded any payment from the defendants or given her consent to the acts of sexual intercourse.

Both defendant and Busby testified in their own behalf. Both insisted they were driving home from New York City, where they had been visiting friends, when the two women attracted their attention by calling out to their passing vehicle. They circled the block and returned to pick up the women. Upon getting into the car, the women asked if they had any "reefers." The men decided to lie, saying that they did. Encouraged by this information, one of the women directed them to the parking lot where, after some more discussion about the reefers, she volunteered to have sexual relations with the men. Her companion also agreed, and the men proceeded to have sexual relations with each woman. *205 Both defendants flatly denied having any weapons or using any force.

According to the defendants, the women renewed their requests for some reefers, and the men finally admitted that they had been lying and had none. Enraged, the women indignantly demanded $10 for each act of sexual intercourse. The men refused to pay and the argument became more heated. It ended abruptly when the men pushed the two women out of the car and drove off.

Following this testimony, the judge informed counsel that he was considering the possibility of charging the jury with respect to the crime of fornication as a lesser included offense of rape. Defense counsel made an objection on the record, pointing out that the statute was in "disrepute" and rarely applied. The prosecutor stated that he would neither request nor oppose such a charge. He did suggest, however, that such a charge might be required by the defendant's admissions of sexual relations with the women.

The trial judge did not reveal his decision to so charge until completion of summations by both sides. Defendant's attorney objected again, and the judge replied:

Here is a situation in which there appears to be, and it is up to the jury to decide, an open admission in court of fornication, and I don't think the Court can ignore it since it is in the statute.

In charging the jury, the judge defined that crime of fornication as "an act of illicit sexual intercourse by a man, married or single, with an unmarried woman." He placed the burden on the State to prove that the act occurred, but he made no reference to proof of the marital status of the complainants.

Defense counsel once again objected to the fornication charge. He disputed the court's conclusion that fornication was truly a lesser included offense of rape, since one of its elements required proof that the woman be unmarried.^[1] The *206 trial judge responded that his "recollection" was that both women had testified that they were not married. Defendant's counsel disagreed, although he was not certain. Counsel for Busby also objected on the ground that fornication was not a lesser included offense of rape.

The jury deliberated for about 20 minutes before seeking further advice from the court concerning the relationship between fornication and the other crimes.^[2] The court suggested that the jury consider the charges in descending order of gravity, starting with rape and considering fornication only if it found the defendants not guilty of the more serious offenses. At the urging of defense counsel, the judge stated that a verdict of guilty on the fornication charge would necessarily include a finding of consent by the women, precluding a conviction for rape or assault. The prosecutor made no objection to this additional clarification. Shortly thereafter, the jury returned its verdict of guilty on the two fornication counts and not guilty on all other counts.

Defendant was fined $50 and his co-defendant, who had spent seven months in jail awaiting trial, was sentenced to "time spent."

Despite undisputed evidence of widespread nonenforcement of N.J.S.A. 2A:110-1, the trial judge found an insufficient showing of selective and purposeful discrimination based on an arbitrary or invidious classification.^[3] He stated that *207 "the very nature of the crime makes enforcement difficult" and held further that defendant's conviction did not deny him equal protection or due process. 130 N.J. Super. at 241-43. Although agreeing that Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) had expanded the right of privacy to include unmarried individuals, the trial judge did not think that the decision had undermined the reasoning of this Court in State v. Lutz, 57 N.J. 314 (1971) and State v. Clark, 58 N.J. 72 (1971) upholding the constitutionality of N.J.S.A. 2A:110-1. He concluded that the State's interests in preventing venereal disease and illegitimacy were sufficiently "compelling" to justify prohibiting sexual relations by unmarried persons. Id., 130 N.J. Super. at 243-44. These interests, he felt, established a valid secular purpose which overcame any claim that the law was designed to uphold a particular religious conception of morality. Id. at 244.

The Appellate Division affirmed the decision below for substantially the same reasons, adding a reference to the United States Supreme Court's summary affirmance in Doe v. Commonwealth's Attorney for City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751, reh. den. 425 U.S. 985, 96 S.Ct. 2192, 48 L.Ed.2d 810 (1976), aff'g 403 F. Supp. 1199 (E.D. Va. 1976).

*208 II

STANDING

The State asserts that this Court should refuse to consider defendant's constitutional claims based on the selective enforcement of this statute and its infringement on the right of privacy because he has no standing to press these arguments. This contention, which was raised for the first time on appeal, rests on the general principle that a litigant as to whom application of a statute would be constitutional lacks standing to attack the statute by asserting the constitutional rights of others. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524, 529 (1960); In re Quinlan, 70 N.J. 10, 34 (1976), cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); State v. Norflett, 67 N.J. 268, 276 and n. 6 (1975); State v. Young, 57 N.J. 240, 252-254 (1970); State v. Monteleone, 36 N.J. 93, 100 (1961). The State urges also that the selective enforcement claim has no relevance to defendant's conviction because the trial court, rather than the prosecutor, placed the issue of fornication before the jury. Similarly, the State suggests that any privacy interests defendant may have are inapplicable to conduct which involved several other persons and occurred in a public place.

Unlike the United States Constitution, our State Constitution contains no provision limiting the judicial power to cases or controversies. However, this Court has recognized that rules of standing are necessary if the courts are to properly respect the legislature's prerogatives with regard to its law-making functions. In re Quinlan, supra, 70 N.J. at 34-35; Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98 (1971); Walker v. Stanhope, 23 N.J. 657, 660 (1957). The rule which limits a criminal defendant to constitutional claims related to his own conduct rests on the principle that legislative acts are presumptively valid and will not be overturned on the basis of *209 hypothetical cases not actually before the court. State v. Young, supra, 57 N.J. at 253.

Defendant asserts that the instant statute, N.J.S.A. 2A:110-1, is unconstitutional on its face since it generally seeks to outlaw conduct which the State has no power to prohibit. It is important to distinguish this argument from one where a contention is made that a statute may be "invalid in its application in special circumstances or fringe areas." State v. Monteleone, supra, 36 N.J. at 99; State v. Young, supra, 57 N.J. at 252-53. Cases involving a claim that a statute is unconstitutional simply because some protected activity might conceivably be within its reach are too hypothetical to warrant review. Cf. United States v. Raines, supra, 362 U.S. at 21-22, 80 S.Ct. at 522-523, 4 L.Ed.2d at 529.

Here the situation is quite the opposite. The elements which render the defendant's conduct unprotected have little to do with the underlying purposes of the law. N.J.S.A. 2A:110-1 seeks to prohibit all sexual relations between men and unmarried women,^[4] regardless of the circumstances under which such acts occur. Thus, it is the normal application of the statute which the defendant seeks to challenge, not the "fringe" situations ordinarily involved in overbreadth attacks. We think it would be inappropriate to refuse to review the constitutionality of N.J.S.A. 2A:110-1 on the fortuitous ground that the defendant's act may have constituted a violation of other criminal statutes such as public or private lewdness. We therefore conclude that the salutary purposes of the usual rules of standing *210 should not operate in these circumstances to prevent defendant from challenging N.J.S.A. 2A:110-1 as unconstitutional on its face.

III

RIGHT OF PRIVACY

The right of privacy, upon which defendant bases his attack, is not explicitly mentioned in either the New Jersey or United States Constitutions. However, both documents have been construed to include such a right. On the federal level, the right was first recognized as being of constitutional stature by a majority of the Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). There Mr. Justice Douglas, writing for the majority, explained that a "zone of privacy" was created not by one amendment standing alone, but by several fundamental constitutional guarantees:

* * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers `in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables its citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: `The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.'

[381 U.S. at 484, 85 S.Ct. at 1681, 14 L.Ed.2d at 514-515]

Subsequent Supreme Court decisions have firmly established the constitutional nature of the right of privacy. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court found that the right of privacy encompassed a woman's decision whether or not to terminate a *211 pregnancy. 410 U.S. at 153, 93 S.Ct. at 726, 35 L.Ed.2d at 177. More recently the right has been recognized in the Court's decisions in Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed. 2d 405, 419 (1976), reh. den. 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976). In the Wade case, the Court observed that the right was hardly a "new" one, since as far back as 1891 the Supreme Court had recognized in Union Pacific R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), that "a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution." 410 U.S. at 152, 93 S.Ct. at 726, 35 L.Ed. 2d at 176.

However, the precise scope of the interests protected by the right of privacy are not easily defined. As the Court noted in Carey v. Population Services International, supra, the interests which have been held to fall within the protections of the right have been "personal" ones; they have included those "relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-53, 92 S.Ct. 1029, id. at 460, 463-65, 92 S.Ct. 1029 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)"; Carey, supra, 431 U.S. at 685, 97 S.Ct. at 2016, 52 L.Ed.2d at 684, quoting Roe v. Wade, supra, 410 U.S. at 152-53, 53 S.Ct. 705.

Although the Court in Carey observed that the "decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices," *212 (431 U.S. at 685, 97 S.Ct. at 2016, 52 L.Ed.2d at 684-85), we believe that the right of privacy is not confined to the private situations involved in each of these decisions. Indeed, the Court's references in Roe v. Wade to cases having nothing to do with such decisions should effectively dispel any such notion.^[5] While Carey certainly emphasizes the importance of a person's choice regarding whether or not to have children, it indicates that the constitutional basis for the protection of such decisions is their relationship to individual autonomy. Mr. Justice Brennan observed that such personal choices concern "the most intimate of human activities and relationships," adding that "decisions whether to accomplish or to prevent conception are among the most private and sensitive." 431 U.S. at 685, 97 S.Ct. at 2017, 52 L.Ed.2d at 685. [Emphasis added.]

This view of the right of privacy is consistent with the approach taken by this Court in our recent decision in In re Quinlan, supra. There we held, as a matter of State constitutional law, that this important right was broad enough to encompass the freedom to make a personal choice as to the continuance of artificial life-support mechanisms. *213 Though Chief Justice Hughes noted for the Court that the right of privacy had theretofore been primarily associated with decisions involving contraception and family life, he also found that its underlying concern was with the protection of personal decisions, and that it might be included within "the class of what have been called rights of `personality.'" 70 N.J. 38, n. 7. Our Quinlan decision could not have been predicated on privacy grounds if the class of cognizable privacy interests was limited to personal decisions concerning procreative matters.

Any discussion of the right of privacy must focus on the ultimate interest which protection the Constitution seeks to ensure — the freedom of personal development. Whether one defines that concept as a "right to `intimacy' and a freedom to do intimate things," or "a right to the `integrity' of one's personality,'" see Henkin, "Privacy and Autonomy," 74 Colum. L. Rev. 1410, 1419 (1974), the crux of the matter is that governmental regulation of private personal behavior under the police power is sharply limited. As Mr. Justice Brandeis stated so eloquently in his dissent in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most valued by civilized men.

[277 U.S. at 478, 48 S.Ct. at 572, 72 L.Ed. at 956.]

See also Wade, supra, 410 U.S. at 211, 93 S.Ct. at 757, 35 L.Ed.2d at 187 (Douglas, J., concurring).

We conclude that the conduct statutorily defined as fornication involves, by its very nature, a fundamental personal choice. Thus, the statute infringes upon the right of privacy. Although persons may differ as to the propriety *214 and morality of such conduct and while we certainly do not condone its particular manifestations in this case, such a decision is necessarily encompassed in the concept of personal autonomy which our Constitution seeks to safeguard.

We recognize that the conduct prohibited by this statute has never been explicitly treated by the Supreme Court as falling within the right of privacy. In fact, we note that this question has been specifically reserved by the Court. See Carey, supra, 431 U.S. at 688, 97 S.Ct. at 2018, 52 L.Ed.2d at 687, n. 5. But see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 and n. 15, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446, 463 (1973). Nevertheless, our decision today is consistent with the tenor and thrust of the Court's more recent decisions. As we stated earlier, the Court in Carey and Wade underscored the inherently private nature of a person's decision to bear or beget children. It would be rather anomalous if such a decision could be constitutionally protected while the more fundamental decision as to whether to engage in the conduct which is a necessary prerequisite to child-bearing could be constitutionally prohibited. Surely, such a choice involves considerations which are at least as intimate and personal as those which are involved in choosing whether to use contraceptives. We therefore join with other courts which have held that such sexual activities between adults are protected by the right of privacy.^[6]See State v. Pilcher, 242 N.W.2d 348 (Sup. Ct. Iowa 1976).

*215 In limiting the reach of the privacy right in our recent Lutz and Clark decisions, we relied upon concurring opinions of Mr. Justice Goldberg and Mr. Justice White in the Supreme Court's holding in Griswold which were keyed to the intimacy of the marital relationship. One year after our decisions in Lutz and Clark, the Court decided Eisenstadt v. Baird, supra, which held for the first time that the right of privacy afforded the marital relationship extended to the individual as well. The Court declared:

[T]he marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with a separate individual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 405 U.S. at 453, 92 S.Ct. at 1038, 31 L.Ed.2d at 362.

Eisenstadt proved to be a stepping stone to the far more expansive concept of individual autonomy which the United States Supreme Court established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Wade and its progency have defined the "liberty" protected by the Fourteenth Amendment as safeguarding an individual's freedom to decide certain matters without unwarranted governmental interference or compulsion, regardless of marital status or family relationships. See, e.g., Carey v. Population Services International, supra; Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); cf. Whalen v. Roe, supra. Our conclusion that the view of privacy enunciated in Lutz and Clark is now untenable finds confirmation in the Court's recent pronouncement in Carey that

Griswold may no longer be read as holding that a State may not prohibit a married couple's use of contraceptives. Read in light of its progency, the teaching of Griswold is that the Constitution protects *216 individual decisions in matters of childbearing from unjustified intrusion by the State.

[431 U.S. at 687, 97 S.Ct. at 2018, 52 L.Ed.2d at 686; emphasis supplied.]

In emphasizing the progression from Griswold to