COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
DOUGLAS A. PARIS
OPINION BY
v. Record No. 2979-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Richard E. Gardiner for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Douglas A. Paris (appellant) was convicted of two counts of
carnal knowledge. On appeal, he contends that Code
§ 18.2-361(A) violates Article 1, Section 1 of the Virginia
Constitution and that the trial judge erred by refusing his
proffered jury instruction on criminal intent. For the
following reasons, we affirm appellant's convictions.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to its evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
Appellant's fifteen-year-old nephew (J.P.) came to Virginia
to spend a part of his summer vacation with appellant. J.P.
testified that between July 12 and July 28, 1998, he drank beer
given to him by his uncle until he passed out on the couch.
When J.P. awoke, his uncle was touching J.P.'s genitals and
placing J.P.'s penis in his mouth. J.P. described several
additional times during the course of his vacation when
appellant entered his bedroom and performed oral sodomy upon
him. J.P. testified that it was non-consensual, 1 but he did not
report it because he was afraid of his parents' reaction and
wanted to continue his vacation.
Appellant admitted that on at least two occasions, he
performed oral sex on his nephew. However, he testified that he
did so with the consent of J.P. 2
Counsel for appellant proffered a jury instruction that
included as an element of the offense that appellant knew his
1
On direct examination, the Commonwealth's attorney asked
J.P. what he did after the first time his uncle committed sodomy
on him. J.P. responded, "I tried to go upstairs." On
cross-examination, appellant's counsel asked J.P., "And when he
woke you up those two or three times or four times, did you tell
him to go away?" J.P. responded, "No, but I showed signs that I
didn't want it to happen."
2
We note that contrary to his testimony, in Exhibit 1, a
letter written by appellant, he admits "[he] was completely and
totally at fault" and "[he] let . . . thoughts . . . come out
against someone I was responsible for and was charged to look
after."
- 2 -
nephew did not consent "to his penis being in the mouth of the
defendant." The trial judge refused the jury instruction,
stating it was an inaccurate statement of the law. Appellant
was convicted of two counts of carnal knowledge under Code
§ 18.2-361(A).
II. CONSTITUTIONALITY OF CODE § 18.2-361(A)
Appellant first contends Code § 18.2-361(A) 3 violates
Article 1, Section 1 of the Virginia Constitution because
consensual acts of sodomy are protected thereunder. "Before
considering these arguments, we note that generally, a litigant
may challenge the constitutionality of a law only as it applies
to him or her." Coleman v. City of Richmond, 5 Va. App. 459,
463, 364 S.E.2d 239, 241-42 (1988) (citing Grosso v.
Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941)).
"That the statute may apply unconstitutionally to another is
irrelevant. One cannot raise third party rights." Id. at 463,
364 S.E.2d at 242. We therefore address appellant's argument
only as it applies to his conduct in this case.
3
Code § 18.2-361(A) provides in relevant part as follows:
If any person carnally knows in any manner
any brute animal, or carnally knows any male
or female person by the anus or by or with
the mouth, or voluntarily submits to such
carnal knowledge, he or she shall be guilty
of a Class 6 felony . . . .
- 3 -
A. Scope
Article 1, Section 1 of the Constitution of Virginia
provides as follows:
That all men are by nature equally free
and independent and have certain inherent
rights, of which, when they enter into a
state of society, they cannot, by any
compact, deprive or divest their posterity;
namely, the enjoyment of life and liberty,
with the means of acquiring and possessing
property, and pursuing and obtaining
happiness and safety. 4
4
The language of Article 1, Section 1 of the Virginia
Constitution is recognized as ideological language rather than
literal terms:
George Mason drafted the first four sections
of the Bill of Rights as a political
philosophy to set Virginia properly on her
new course. His words have survived two
hundred years with no substantial changes,
as a statement of those ideals which the
framers felt should guide the future of the
Commonwealth.
* * * * * * *
In drafting the 1971 Constitution, the
Commission on Constitutional Revision was
aware of proposals that all language not
judicially enforceable be eliminated from
the Bill of Rights. It recommended,
however, that Mason's words be retained as a
reminder of the Commonwealth's ideological
heritage: "Section 1 has often been
discussed in decisions of the
Virginia Supreme Court of Appeals, but its
language, strictly speaking, is more
exhoratory than enforceable."
A.E. Dick Howard, Commentaries on the Constitution of Virginia
58-65 (1974).
- 4 -
Appellant argues that his acts of oral sodomy on his
fifteen-year-old nephew are protected by "the enjoyment of life
and liberty" and "the pursuing and obtaining happiness" clauses
outlined above. Additionally, he contends that the protections
afforded to him by Article 1, Section 1 are broader than those
privacy rights set out in the United States Constitution. We
disagree.
"Our courts have consistently held that the protections
afforded under the Virginia Constitution are co-extensive with
those in the United States Constitution." Bennefield v.
Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311
(1996). See also Lowe v. Commonwealth, 230 Va. 346, 348 n.1,
337 S.E.2d 273, 275 n.1 (1985) (explaining that protections
under Virginia's Constitution and statutes are "substantially
the same as those contained in the Fourth Amendment"); O'Mara v.
Commonwealth, 33 Va. App. 525, 535 S.E.2d 175 (2000) (explaining
that the protection of the right to free speech is co-extensive
with federal constitutional protection). Because the rights
guaranteed by the Virginia Constitution and the United States
Constitution are co-extensive, we use the same analysis.
When the constitutionality of a statute is questioned, "the
burden is on the challenger to prove the alleged constitutional
defect." Woolfolk v. Commonwealth, 18 Va. App. 840, 848, 447
- 5 -
S.E.2d 530, 534 (1994). "Every act of the legislature is
presumed to be constitutional, and the Constitution is to be
given a liberal construction so as to sustain the enactment in
question, if practicable." Moses v. Commonwealth, 27 Va. App.
293, 298-99, 498 S.E.2d 451, 454 (1998) (quoting Bosang v. Iron
Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 441
(1898)). "It has long been established that every presumption
is to be made in favor of an act of the legislature, and it is
not to be declared unconstitutional except where it is clearly
and plainly so. Courts uphold acts of the legislature when
their constitutionality is debatable, and the burden is upon the
assailing party to prove the claimed invalidity." Peery v.
Virginia Bd. of Funeral Dir. and Embalmers, 203 Va. 161, 165,
123 S.E.2d 94, 97 (1961).
The seminal Virginia case interpreting the right to "life,
liberty and the pursuit of happiness" under both the United
States and Virginia Constitutions is Young v. Commonwealth, 101
Va. 853, 45 S.E. 327 (1903).
The word "liberty" as used in the
Constitution of the United States and the
several states, has frequently been
construed, and means more than mere freedom
from restraint. It means not merely the
right to go where one chooses, but to do
such acts as he may judge best for his
interest, not inconsistent with the equal
rights of others; that is, to follow such
- 6 -
pursuits as may be best adapted to his
faculties, and which will give him the
highest enjoyment. The liberty mentioned is
deemed to embrace the right of the citizen
to be free in the enjoyment of all his
faculties; to be free to use them in all
lawful ways; to live and work where he will;
to earn his livelihood by any lawful
calling, and for that purpose to enter into
all contracts which may be proper,
necessary, and essential to his carrying out
to a successful conclusion the purpose above
mentioned. These are individual rights,
formulated as such under the phrase "pursuit
of happiness" in the Declaration of
Independence, which begins with the
fundamental proposition that all men are
created equal; that they are endowed by
their Creator with certain inalienable
rights; that among these are life, liberty
and the pursuit of happiness.
Id. at 862-63, 45 S.E. at 328-29 (emphasis added). In a further
analysis of the scope of Article 1, Section 1 protections, the
Virginia Supreme Court stated:
However, section 1, article I, of the
Virginia Constitution is relied upon here as
having been violated by the Virginia act
[creation of the Milk Commission]. The
challenged provisions of the Virginia and
Federal Constitution are quite similar.
Both guarantee to the citizen certain
inherent rights, and, in our opinion, if the
act violates the Federal Constitution it
also will violate the Virginia Constitution.
On the other hand, if it does not offend the
Federal Constitution, then it will not
offend the Virginia Constitution.
Reynolds v. Milk Comm., 163 Va. 957, 963, 179 S.E. 507, 509
(1935).
- 7 -
The United States and Virginia Constitutions provide for
substantive due process which "protects those fundamental rights
and liberties which are, objectively, deeply rooted in this
[n]ation's history and tradition, . . . and implicit in the
concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed." Washington v.
Glucksburg, 521 U.S. 702, 720-21 (1997) (citations and internal
quotations omitted). In addressing due process concerns, the
Court looks to the "[n]ation's history, legal traditions, and
practices." Id. at 710.
In Bowers v. Hardwick, 478 U.S. 186 (1985), the Supreme
Court of the United States defined the types of interests that
are protected under a due process analysis. They are rights
without which "neither liberty nor justice would exist if [they]
were sacrificed." Id. at 191-92. The Supreme Court has held
that various privacy rights, such as marriage, use of
contraceptives, abortion, and child-rearing, are fundamental
rights protected by the Constitution. See Carey v. Population
Servs. Int'l, 431 U.S. 678 (1977) (use of contraceptives); Roe
v. Wade, 410 U.S. 113 (1973) (abortion); Loving v. Virginia, 388
U.S. 1 (1967) (marriage); Griswold v. Connecticut, 381 U.S. 479
(1965) (use of contraceptives by married persons); Prince v.
Massachusetts, 321 U.S. 158 (1944) (family relationships);
- 8 -
Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation); Pierce
v. Society of Sisters, 268 U.S. 510 (1925) (right to educate
children).
In the instant case, appellant seeks to extend the right to
privacy as well as the right to "happiness" to cover an
individual who engages in oral sodomy, consensual or not, with a
minor who is also a relative. Such conduct was not contemplated
by the drafters of Article 1, Section 1 of the Virginia
Constitution.
In Santillo v. Commonwealth, 30 Va. App. 470, 517 S.E.2d
733 (1999), we held that sodomy does not fall into any
constitutionally protected area when the conduct involved a
minor. The facts in this case parallel those of Santillo,
except that Santillo dealt with an adult godfather and a minor
female godchild and the instant case involves an adult uncle and
minor nephew. The facts, reviewed in the light most favorable
to the Commonwealth, establish in both cases that the minor
victim was dependent on the perpetrator, did not explicitly
agree with the conduct, and trusted the perpetrator, who was
closely involved with the victim's family. On these facts, we
hold that appellant's actions in the instant case are not within
the parameters of any constitutionally protected area. As in
Santillo, the appellant has failed to establish that Code
§ 18.2-361(A) is unconstitutional as applied to him.
- 9 -
III. JURY INSTRUCTION
Appellant next contends the trial court erred in refusing
his proposed jury instruction, 5 which required as an element of
the offense "that the Commonwealth prove beyond a reasonable
doubt that the defendant knew [the victim] did not consent."
The trial court refused the instruction, finding it to be an
inaccurate statement of the law. We agree.
The language of Code § 18.2-361(A) requires proof only that
appellant intended to "carnally know" his nephew by mouth. The
statute does not require proof that the defendant knew the
victim did not consent. The intentional commission of the act
is the sole element that must be proven.
Appellant relies on Parrish v. Commonwealth, 81 Va. 1
(1884), for the proposition that all felony offenses implicitly
require criminal intent even if the statute fails to state it.
Code § 18.2-361(A) requires only that appellant intend the
5
Appellant's proposed jury instruction provided in part:
The defendant is charged with a crime
against nature. The Commonwealth must prove
beyond a reasonable doubt each of the
following elements of that crime:
1) the penis of [J.P.] penetrated into
the mouth of the defendant;
2) [J.P.] did not consent to his penis
being in the mouth of the defendant; and
3) that defendant knew that [J.P.] did
not consent to his penis being in the mouth
of the defendant.
- 10 -
illegal act be committed. That is the specific scienter
required by Parrish. The defendant's knowledge of the victim's
lack of consent is not a part of the mens rea requirement.
Thus, we hold the trial court properly refused the proffered
jury instruction because it constituted an inaccurate statement
of law.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
- 11 -