(dissenting).
I dissent. I do not feel that this is a proper case in which to adjudicate the constitutionality of the sodomy statute, § 40A-9-6, N.M.S.A.1953 (2d Repl. Vol. 6 1972).
First, neither trial counsel or appellate counsel raised the constitutionality of the statute. This is a sua sponte action by the majority. It is, at best, a blatant abuse of judicial power. If for no other reason my dissent would stand upon this ground alone. Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973). To decide so serious an issue, without benefit of briefing by the parties makes light of the adversary system —the very foundation of our form of jurisprudence.
Second, even had the defendant requested standing to raise the issue of the constitutionality of the statute (which he did not), time-honored principles of law would mandate the result that defendant has no such standing. The majority assign four reasons for giving defendant such standing: (1) the case involves consenting adults, (2) consenting adults are unable to assert their own rights, (3) the statute is unconstitutional on its face, and (4) fundamental rights are involved.
(1) The case does not involve consenting adults. The record is not ambiguous on the issue of mutual consent. The pros-ecutrix testified that the defendant forced her, under threat of injury and against her will, to perform three acts of oral sodomy and one act of anal sodomy. The fact that the jury acquitted the defendant of the rape charge did not mean that the jury found that the prosecutrix consented to the sodomy. The jury may have thought that she was willing to perform normal sexual intercourse but not deviant sexual intercourse. The jury may have thought that the punishment for five third degree felonies would be sufficient without adding the punishment for a second degree felony. The jury is only answerable to its own conscience. It is settled law in this jurisdiction that appellate courts will not speculate and look behind jury verdicts in criminal cases. State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969). Yet this is exactly what the majority has done. By this magic but forbidden formula they have given the defendant standing under the first assigned reason.
(2) The exception to the standing rule whereby persons who admittedly have standing are unable to assert their rights is inapplicable to the case at bar. The reason for its inapplicability is that the exception is a qualified one. It has been consistently held that the person asserting the rights o.f others must have some relationship to those others. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the persons held to have standing stood in a professional or helping relationship to those unable to assert their rights. Moreover, in Eisenstadt, the parties whose rights were being asserted were not subject to criminal liability at all. In United States v. Doe, 12 Cr.L. 2531 (D.C.Sup.Ct.1973), the persons asserting the rights of others had at least some common traits with them. There consenting adults were asserting the rights of other consenting adults. The same cannot be said here. My Brothers Sutin and Lopez may, by their opinion, have allowed one who has forcibly sodomized a child to assert the rights of consenting married adults. No relationship between defendant and those whose rights he is asserting having been shown of record, I would hold defendant ineligible to raise the issue of the statute’s unconstitutionality on behalf of the world-at-large due to the majority’s second assigned reason.
(3) and (4) The exceptions to the standing rule involving facial unconstitutionality and fundamental rights are not entirely separate. Both the majority opinion and United States v. Doe, supra, upon which the majority rely, are grounded in the cases of Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) and Bag-gett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). Historically, the procedure of declaring a statute unconstitutional without regard to the conduct of the individual litigant has been reserved for those special instances where the allegation of unconstitutionality consists of a due process claim of vagueness in combination with a violation of the First Amendment right of free speech or assembly, (see Coates v. Cincinnati, supra; Baggett v. Bullitt, supra), or perhaps where the statute in question has already been declared unconstitutional in the vast majority of its applications. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed. 2d 524 (1960). The statute herein declared unconstitutional is scrupulously specific in its language and has nothing whatsoever to do with freedom of expression. Compare Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). Further, it would be constitutional in the vast majority of its applications and the authorities cited in the majority opinion have only held similar statutes unconstitutional as applied to the single class of consenting, married adults committing the forbidden acts in private. Thus, these exceptions to the standing rule would be inapplicable.
Thirdly, the stretching of the instant case to a discussion of the right to marital privacy is a distortion of the first order.
To my mind, what we have here is a case where defendant was convicted of four counts of sodomy and one count of burglary. He appealed. His counsel very ably alleged points for reversal, which, in my opinion, would have resulted in a reversal and discharge on the burglary count (although for different reasons than those stated in the majority opinion) and a reversal and remand on at least three of the four sodomy counts due to inadequacies in the information. What the majority has done is wholly unnecessarily pulled an issue out of thin air and without even giving the state an opportunity to respond to it, decided the constitutionality of a statute whose constitutionality has never in this litigation been called into question. It has always been the policy of the .courts to avoid, if possible, constitutional issues. Huey v. Lente, supra. Under principle and authority defendant has no standing to assert the issue of constitutionality in any event.
I dissent.