The interest in personal autonomy and privacy

Jay Leiderman
By: Jay Leiderman
December 21 2016

Petitioner enjoyed the right to raise the defense of personal autonomy and privacy in the bedroom.

Petitioner was denied the ability to raise his defense because of the language in People v. Giardino (2000) 82 Cal.App.4th 454 and People v. Dancy (2002) 102 Cal.App.4th 21.  This was accomplished by the reliance upon such phrases as: “Had the Legislature actually intended to require proof of the victim’s actual or hypothetical lack of consent as an element of rape of an unconscious person, it would have been simple for the Legislature to include a lack of consent element as it did in other subdivisions of Penal Code section 261. Its failure to do so is indicative of its decision that sexual intercourse with an unconscious person is a criminal sexual offense regardless of real or hypothetical consent[;]” People v. Dancy (2002) 102 Cal.App.4th 21, 35; and “Because section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication, the lack of actual consent is not an element of the crime.  Accordingly, the trial court properly denied the defendant’s request for an instruction to the contrary.” People v. Giardino (2000) 82 Cal.App.4th 454, 464.

Giardino and Dancy fail to address the constitutional right to privacy inherent in the petitioner’s acts.

Article I, section 1 of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

In many contexts, the scope and application of the California state constitutional right of privacy is broader and more protective of privacy than the federal Constitutional right of privacy, as it has been interpreted by federal courts. American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.

Although the state Constitution does not contain any explicit reference to a “right to marry,” that right is a fundamental right whose protection is guaranteed to all persons by the privacy and due process clauses of the state Constitution. In re Marriage Cases (2008) 43 Cal.4th 757, rehearing denied. “[U]nder the state Constitution, the right to marry and the right of intimate association are virtually synonymous.” Penal Code section 261, 1303.

THe right to privacy in the bedroom was established by hte Supreme Court in Lawrence v Texas

Beyond question, “[t]he present case … concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees…. [There are definite] notions of privacy surrounding the marriage relationship. [¶] We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” (Griswold v. Connecticut (1965) 381 U.S. 479, 485-486)

“With California’s adoption in 1972 of a constitutional amendment explicitly adding “privacy” to the “inalienable rights” of all Californians protected by article I, section 1 of the California Constitution — an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, “particularly as it developed beginning with Griswold v. Connecticut[, supra,] 381 U.S. 479″ (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 28) — the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause, [fn omitted] now also clearly falls within the reach of the constitutional protection afforded to an individual’s interest in personal autonomy by California’s explicit state constitutional privacy clause. (See, e.g., Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 34 [the interest in personal autonomy protected by the state constitutional privacy clause includes “the freedom to pursue consensual familial relationships”]; Valerie N., supra, 40 Cal.3d 143, 161.) [fn omitted] In Re Marriage Cases (2008) 43 Cal.4th 811.

This case is almost indistinguishable from Lawrence v. Texas (2003) 539 U.S. 558: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” [citation omitted]. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Petitioner had the right to engage in adult sexual relations with partners that gave their consent in advance to be penetrated once they were unconscious. The failure of the trial court to allow proof of this issue impinged upon his right to bring forth a defense, as he had the right, under the state and federal constitutions, to engage in consensual sexual behavior with adults.

Counsel for petitioner tried, albeit not in a manner that was perfectly articulate, and not as a motion made on constitutional grounds, to admit this defense via a special jury instruction (see exhibit 12). The defense asked the court to instruct the jury that: “When two people mutually agree to consume an intoxicating substance or substances that are known to reduce sexual inhibitions for the explicit purpose of engaging in sexual activity neither party is guilty of a sexual offense.”  The request was denied.

Accordingly, petitioner’s conviction violates his right to privacy under Article I, Section I, of the California Constitution and the penumbral right of privacy as found in the Ninth Amendment to the US Constitution.



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