This is an appeal by defendant-appellant Goodrick, not from his conviction of assault with intent to commit the infamous crime against nature, but only the length of the fourteen year imprisonment sentence. We affirm.
Goodrick was released from a federal penitentiary in the State of Washington where he had been serving time on rape and kidnapping charges, and he immediately returned to Idaho where he met with John Watson and Watson’s ex-wife. During the night of September 3, 1978, they made a trip to Rockford, Washington, and then returned to Watson’s home in Coeur d’Alene. Goodrick then borrowed Watson’s automobile for the purpose of returning the ex-wife to her home in Post Falls, Idaho. While on that trip, he tried to force the woman to fellate him and when she protested that she was pregnant, Goodrick threatened to kick her in the stomach. The woman escaped from a moving car.
Goodrick was charged with assault with intent to commit the infamous crime against nature and grand larceny. The latter charge was later amended to embezzlement by a bailee and ultimately dropped as a result of a plea bargain. At the sentencing hearing, Goodrick received the maximum penalty, i.e., a fixed sentence of fourteen years imprisonment.
Goodrick asserts that the trial court erred and the maximum sentence which legally could be imposed was five years. We disagree.
Goodrick first asserts that I.C. § 18— 6605, prohibiting the infamous crime against nature, cannot constitutionally be applied to consenting adults of the opposite sex. The State’s position, with which we agree, is that Goodrick has no standing to raise that claim. Here, it is clearly shown that Goodrick used force and threats against his victim and hence he has no standing to challenge the application of the statute to actions of consenting adults.
It is a fundamental rule of constitutional law that when a statute can be applied to a person’s conduct without violating any constitutional provision, he will not be heard to assert that the statute might be unconstitutional if applied to other types of behavior. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). See Note, Standing to Assert Constitutional Jus Tertii 88 Harv.L.Rev. 423 (1974). That rule is particularly applicable in the face of an overbreadth claim. The doctrine has its foundation in the case or controversy limitation in the constitution and the theory that courts should deal only with the facts before them and not with a hypothetical set of facts. That restriction is not absolute and exceptions have been carved out in two areas. A party to litigation may raise third parties’ constitutional objections to a statute where third parties would be prejudiced by the outcome and they have no effective means of protecting their rights. E.g. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Where a party’s conduct clearly falls outside of constitutional protection, a challenge may be entertained when the challenged statute is facially overbroad in attempting to regulate speech or conduct protected by the First Amendment. E.g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); but cf. Broadrick v. Oklahoma supra.
Here Goodrick’s challenge falls within neither exception. No claim is made that the activity sought to be regulated is First Amendment protected speech, and further there is no showing that consenting adults charged with the infamous crime against nature would not be able to defend their alleged constitutional rights.
*813We find some division among other jurisdictions on the question of standing. Decisions holding that a party who has used force against his victim has no standing include People v. Sharp, 183 Colo. 64, 514 P.2d 1138 (1973); Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (Md.Ct.Spec.App.1972); cert. denied, 409 U.S. 1025, 93 S.Ct. 469, 34 L.Ed.2d 317 (1972); cf., State v. Pilcher, 242 N.W.2d 348 (Iowa 1976). The Arizona court in State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976), cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 267 (1976), has suggested that consenting adults would not be able to raise their own constitutional objections, but recent case law indicates that consenting adults indeed have been prosecuted for violation of state sodomy statutes. See, e.g. Carter v. State, 500 S.W.2d 368 (Ark.1973); cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974); Kelly v. State, 45 Md.App. 212, 412 A.2d 1274 (Md.Ct.Spec.App.1980); aff’d. 290 Md. 364, 430 A.2d 570 (Md.App.1981); People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (N.Y.1980). Hence, we hold that the facts of this case do not come within either of the exceptions to the required standing and Goodrick has no standing to assert the alleged overbreadth of the statute proscribing the infamous crime against nature, a statute under which he was neither charged nor convicted.
Goodrick next argues that assault with intent to commit the infamous crime against nature is a lesser included offense of the infamous crime against nature, that the penalty for a lesser included offense cannot exceed the maximum penalty authorized for the greater offense, that the maximum penalty for the infamous crime against nature is five years and, therefore, his sentence cannot exceed five years. If any of those three postulates fail, then Goodrick’s argument fails.
Without intimating any view thereon, we assume, only for the purpose of this discussion, that assault with intent to commit the infamous crime against nature is a lesser included offense of the infamous crime against nature and assume also that the maximum penalty for infamous crime against nature is five years imprisonment. We then examine Goodrick’s assertion that the penalty for a lesser included offense cannot exceed the maximum penalty authorized for the greater offense. That contention is grounded in the Eighth Amendment’s ban on cruel and unusual punishments. Other jurisdictions have somewhat divided on this question. Two state courts have held that the penalty for a lesser included offense cannot exceed the maximum penalty authorized for the so-called greater offense. Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815 (Ind.1968); Application of Cannon, 203 Or. 629, 281 P.2d 233 (1955). In those jurisdictions their state constitutions contain provisions requiring all penalties to be proportionate to the offense. Idaho has no such constitutional provision. See Idaho Const., Art. 1, § 6, prohibiting cruel and unusual punishments. Although the decisions of the Indiana and Oregon courts purported to rely also on the Eighth Amendment to the United States Constitution, we believe such parts of the decisions are incorrect in light of recent United States Supreme Court precedent. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). See also Hutto v. Davis, - U.S. -, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982).
Roberts v. Collins, 544 F.2d 168 (4th Cir. 1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 368 (1977), held that the Eighth Amendment, coupled with the decision in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), required penalties for lesser included offenses to be no greater than the maximum penalty for the greater offense because it held that penalties must be proportionate to the offense. The court relied upon an earlier Fourth Circuit decision of Hart v. Coiner, 483 F.2d 136 (1973), cert. denied, 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974). We find Roberts v. Collins, supra, to be no longer persuasive.
*814In Rummel v. Estelle, supra, the United States Supreme Court effectively invalidated the Hart v. Coiner decision. In both Rummel and Hart a defendant had been convicted of his third of three relatively minor felonies and been sentenced to life imprisonment under the state recidivist statute. The United States Supreme Court in Rummel held that such a penalty did not violate the Eighth Amendment, a holding contrary to Hart, and stated that the standard of review in such cases is whether the penalty is “grossly disproportionate” to the offense rather than the stricter proportionality standard employed by the Fourth Circuit. Rummel v. Estelle, 445 U.S. at 271, 100 S.Ct. at 1138.
In Rummel the Court noted that outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. The Court described the Weems decision as one of those exceedingly rare cases 1 and concluded that the length of a sentence imposed is “purely a matter of legislative prerogative.” Rummel, supra, 100 S.Ct. at 1139; see also Crutchfield v. Commonwealth, 248 Ky. 704, 59 S.W.2d 983 (Ky.1933); State v. Dietz, 264 Minn. 551, 119 N.W.2d 833 (Minn.1963). Hence, we disagree with Goodrick’s assertion that the Eighth Amendment to the United States Constitution requires proportionality and prohibits a greater penalty for a lesser included offense than the maximum penalty authorized for a greater offense.
Goodrick also relies upon State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964). That decision is inapposite to the instant case. There the defendant was charged with a greater offense, but convicted after trial of a lesser offense. Also, the Court construed the penalty provision as fixing a shorter sentence for the lesser offense and so was not faced with the question posed in the instant case. Hall does not stand for the proposition that the Eighth Amendment is violated whenever a greater penalty is authorized for a lesser offense.
Finally, we note that there are instances in which an assault with intent to commit the crime against nature can be more brutal than the act itself. Cf., Simms v. State, 288 Md. 712, 421 A.2d 957 (Md.App.1980). We decline to circumscribe the discretion of the state in prosecuting such crimes.
The sentence imposed by the district court is affirmed.
McFADDEN and DONALDSON, JJ., concur. BAKES, C. J., concurs in the result.. The Court’s decision in Weems did not rest solely on the length of the sentence, but also on the provisions of the Phillipines’ cadena temporal. Those provisions included hard and painful labor with chains on the ankle and wrist of the offender, a prohibition on visits by friends or relatives, loss of marital and parental authority and property rights, and, after twelve years of such confinement, the offender was required to obtain written permission to change his domicile. 217 U.S. at 366, 30 S.Ct. at 548. Rummel v. Estelle, 445 U.S. at 273, 100 S.Ct. at 1138-39.