Santillo v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia

GIULIO SANTILLO
OPINION
v. Record No. 0496-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge

James W. Hundley (Briglia & Hundley, P.C.,
on briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Giulio Santillo (appellant) was convicted of sodomy

involving a sixteen-year-old victim, in violation of Code

§ 18.2-361. On appeal, he contends the trial court erred in

denying his pretrial motion to dismiss the indictment because

(1) the statute violates his constitutional right to privacy and

must be narrowly construed to exclude private acts of consensual

heterosexual sodomy and (2) the statute is unconstitutionally

vague. For the following reasons, we affirm his conviction.

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 it all reasonable
inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

Appellant was charged with carnal knowledge of the victim, C.L.,

on or about March 2, 1997. 1 The evidence established that C.L.

was sixteen years old in March 1997 and had known appellant, a

close family friend, for eight years. She considered appellant

her "godfather." Appellant, fifty-nine years old at the time of

the offense, lived in Florida but stayed in the guestroom of the

victim's home when he was in town on business.

On February 24, 1997, appellant was visiting the victim's

family and he picked up C.L. from school, bought lunch for her

and took her home. While C.L. was doing schoolwork at her desk,

appellant first gave her a back massage and later told her to

lie on the bed where he rubbed her lower back inside her pants.

Appellant suggested that the child pull down her pants so that

he could massage her legs, and the victim complied. Appellant

eventually placed his fingers in the victim's vagina. The

victim remained still because appellant had "never done anything

bad" to her. The episode ended when C.L. pulled her pants up

1
The grand jury originally indicted appellant for forcible
object sexual penetration, in violation of Code § 18.2-67.2. At
trial on that charge, the Commonwealth attempted to amend the
indictment to charge appellant with carnal knowledge, in
violation of Code § 18.2-361. The trial court denied the motion
to amend, and the Commonwealth nolle prossed that charge.
Appellant was later indicted for the instant charge.

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quickly and appellant left to go to work. Appellant instructed

her not to tell anyone about what happened.

On March 2, 1997, appellant again returned to the victim's

home and entered her bedroom while she was doing her homework.

Appellant offered to give C.L. a back massage. The victim laid

down on the bed and appellant rubbed her back, moving his hands

lower and lower. The victim left the room and put on her

pajamas. When she returned, appellant again rubbed her back.

The victim said she was cold, got into bed under the covers and

picked up a book. Appellant sat beside the victim for awhile,

then began tickling her feet. He moved his hands upwards inside

the victim's "boxers." Appellant again told C.L. to relax and

that he was not going to hurt her. Appellant placed a stuffed

animal in the victim's lap. He leaned down and put his tongue

in her vagina. He tried to kiss the victim on the mouth, but

she turned away.

Appellant left the room briefly. When he returned, he had

changed clothes. He took C.L.'s hand and placed it on his

penis. She did not react. With a "mean" facial expression,

appellant walked away. He told the victim not to tell anyone.

Appellant filed a pretrial motion to dismiss the

indictment, alleging that Code § 18.2-361 was unconstitutional

as applied to him. The trial court denied appellant's motion

and ruled as follows:

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 [A]s you have originally said, you're not
asking me to find the statute
unconstitutional on its face, and I wouldn't
do that.

So, I think to some degree you've put
this case in terms of consensual
heterosexual sodomy and I'm not sure that
that's what it is . . . based on the facts
that the Commonwealth has proffered that
their evidence would show. I think there's
a big difference between the Commonwealth
not being able to show force and a party
being able to show consent.

And based on the facts that the
Commonwealth contends it would prove, I just
don't find that to be consensual
heterosexual conduct, for one thing. . . . I
don't find the statute to be
unconstitutional for the purposes of this
case.

Following the presentation of evidence at trial by the

Commonwealth, appellant renewed his motion to dismiss the

charges on constitutional grounds and additionally alleged that

the evidence was insufficient for conviction. Denying

appellant's motion, the trial judge ruled as follows:

As to the second part of the motion to
strike is [sic] that the statute as applied
here is unconstitutional and that the
statute abridges the constitutionally
protected right to privacy. A motion was
previously heard on this matter . . . and
was denied, and the argument today is that
the evidence reveals at best consensual
sexual contact between two individuals, that
the state has no interest in that and that
she, the victim, may have consented to this
contact, and therefore that there is no
overriding state interest in the activity
which occurred here in terms of heterosexual
consensual contact.

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 Again, I think that the Court is not to
strain to reach constitutional questions. I
don't think that a constitutional question
is presented here where the evidence, taken
in the light most favorable to the
Commonwealth is that there was unwanted,
non-consensual contact which occurred
between these two individuals and that the
crime charged, the sodomy statute, has been
upheld as constitutional in the Commonwealth
and has been applied even as to the context
involving married individuals.

This is not such a case. This is a
case involving a 59-year-old man and a
16-year-old victim. She has said it was
nonconsensual. I think the state would have
an overriding interest in public safety to
protect a woman from unwanted contact of
that kind. . . .

(Emphasis added).

II. CONSTITUTIONALITY

Code § 18.2-361(A), the statute under which appellant was

convicted, 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 . . . .

In assessing the constitutionality of a statute, "the

burden is on the challenger to prove the alleged constitutional

defect." Woolfolk v. Commonwealth, 18 Va. App. 840, 848, 447

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.

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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)). "'When the constitutionality of an act is challenged,

a heavy burden of proof is thrust upon the party making the

challenge. All laws are presumed to be constitutional and this

presumption is one of the strongest known to the law.'" Id. at

299, 498 S.E.2d at 454 (quoting Harrison v. Day, 200 Va. 764,

770, 107 S.E.2d 594, 598 (1959)). "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 Board of Funeral Directors and

Embalmers, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961).

A. Right to Privacy

Appellant first contends the prohibition of consensual

heterosexual sex under Code § 18.2-361 abridges his

constitutional right to privacy. 2 Before considering this

argument, we note that generally, a litigant may challenge the

2
Appellant relies on the following cases in support of the
proposition that the right to privacy protects private sexual
conduct: Carey v. Population Servs. Int’l, 431 U.S. 678 (1977);
Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Georgia,
394 U.S. 557 (1969); Loving v. Virginia, 388 U.S. 1 (1967);
Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v.
Oklahoma, 316 U.S. 535 (1942); and Pierce v. Society of Sisters,
268 U.S. 510 (1925).

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constitutionality of a law only as it applies to him or her.

See 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)), reh'g denied, 6 Va. App. 296,

368 S.E.2d 298 (1988). "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. 3 It is in

this light that we review appellant's constitutional challenge

to Code § 18.2-361. 4

The Supreme Court has recognized that the Due Process

Clause of the Fourteenth Amendment protects individuals from

state governmental interference with specific liberty interests.

3
An exception to this rule is in the area of First
Amendment challenges. See Massachusetts v. Oakes, 491 U.S. 576
(1989); Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973). The
United States Supreme Court has also allowed a facial attack on
the ground of vagueness, when the issue touches First Amendment
concerns. See Kolender v. Lawson, 461 U.S. 352 (1983).
4
Appellant concedes that he may challenge the
constitutionality of Code § 18.2-361 only as it applies to him.
At trial, counsel stated the following:

Let me first of all state that what I'm not
asking the court to do is simply declare
full force completely that this statute is
entirely unconstitutional. I'm asking you
to do what courts have done when confronted
with similar issues, a similar question, to
construe it narrowly, and to simply declare
that this statute is unconstitutional as it
applies to the criminalization of consensual
private acts of sodomy between men and women
who are of the age to consent. And that's
really what we have here.

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Substantive due process "protects those fundamental rights and

liberties which are, objectively, deeply rooted in this Nation'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, 721 (1997) (citations and internal quotations

omitted). Additionally, substantive due process claims require

"a careful description of the asserted fundamental liberty

interest." Id. (citations and internal quotations omitted).

Therefore, in a due process case, the Court looks to the

"Nation's history, legal traditions, and practices." Id. at

710.

While the Supreme Court has spoken in terms of "substantive

due process" and "fundamental rights" in determining whether

there exists a right to privacy in a specific case, it has

consistently expressed its reluctance to expand these notions

and, therefore, the protection of the Due Process Clause.

[W]e ha[ve] always been reluctant to expand
the concept of substantive due process
because guideposts for responsible
decisionmaking in this unchartered area are
scarce and open-ended. By extending
constitutional protection to an asserted
right or liberty interest, we, to a great
extent, place the matter outside the arena
of public debate and legislative action. We
must therefore exercise the utmost care
whenever we are asked to break new ground in
this field, lest the liberty protected by
the Due Process Clause be subtly transformed
into the policy preferences of the Members
of this Court.

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Id. at 720 (citations and internal quotations omitted). These

concerns have prompted the Court to maintain focus on its proper

role when reviewing legislative enactments.

Traditionally, the types of interests recognized under

substantive due process include those rights that are so central

to an individual's freedom that "neither liberty nor justice

would exist if [they] were sacrificed." Bowers v. Hardwick, 478

U.S. 186, 191-92 (1986) (citations omitted). In a long line of

cases, the Supreme Court has held that various privacy rights,

including 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); Eisenstadt v. Baird, 405 U.S. 438 (1972)

(distribution of contraceptives); Stanley v. Georgia, 394 U.S.

557 (1969) (obscene reading material in the private home);

Loving v. Virginia, 388 U.S. 1 (1967) (marriage); Griswold v.

Connecticut, 381 U.S. 479 (1965) (use of contraceptives by

married persons); Rochin v. California, 342 U.S. 165 (1952)

(bodily integrity); Prince v. Massachusetts, 321 U.S. 158 (1944)

(family relationships); Skinner v. Oklahoma, 316 U.S. 535 (1942)

(procreation); Pierce v. Society of Sisters, 268 U.S. 510 (1925)

(right to educate children).

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 In Bowers, 478 U.S. 186, the Supreme Court reviewed these

right to privacy cases when considering the constitutionality of

Georgia's anti-sodomy statute. Hardwick was charged with

violating the Georgia statute criminalizing sodomy by committing

that act with another adult male in the bedroom of respondent's

home. Although the district attorney decided not to present the

matter to the grand jury, Hardwick filed suit in federal court,

challenging the constitutionality of the statute as it applied

to consensual sodomy. See id. at 187-88.

Upholding the constitutionality of Georgia's sodomy

statute, the Court specifically limited the respondent's

challenge to the statute as applied to consensual homosexual

sodomy. The Court "express[ed] no opinion on the

constitutionality of the Georgia statute as applied to other

acts of sodomy." Id. at 188 n.2.

This case does not require a judgment on
whether laws against sodomy between
consenting adults in general, or between
homosexuals in particular, are wise or
desirable. It raises no question about the
right or propriety of state legislative
decisions to repeal their laws that
criminalize homosexual sodomy, or of state-
court decisions invalidating those laws on
state constitutional grounds. The issue
presented is whether the Federal
Constitution confers a fundamental right
upon homosexuals to engage in sodomy and
hence invalidates the laws of the many
States that still make such conduct illegal
and have done so for a very long time.

Id. at 190 (emphasis added).

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 Noting that proscriptions against homosexual sodomy have

"ancient roots," the Court in Bowers concluded that homosexual

sodomy was not a fundamental liberty. Id. at 192-93. It also

detected no relationship between homosexual activity and

previously protected privacy rights concerning the "family,

marriage, or procreation." Id. at 191. The Court rejected the

notion that "any kind of private sexual conduct between

consenting adults is constitutionally insulated from state

proscription." Id. 5

In the instant case, appellant seeks to extend the

recognized right to privacy to cover an individual who engages

in heterosexual sodomy. However, under the circumstances of

this case, we hold that appellant's actions were not within the

ambit of any constitutionally protected zone because they did

not involve sexual relations between two consenting adults.

Viewed in the light most favorable to the Commonwealth, the

evidence established that appellant acted without the consent of

the sixteen-year-old victim. Specifically, the victim testified

she was "uncomfortable" with appellant's advances and at one

point she tried to "avoid the whole thing." She indicated that

5
Indeed, the Supreme Court has said that it has not yet
decided whether lawful, private, sexual conduct is sheltered
from state interference by the Constitution. In Carey, 431 U.S.
678, the Court noted that it "has not definitely answered the
difficult question whether and to what extent the Constitution
prohibits state statutes regulating (private consensual sexual)
behavior among adults, . . . and we do not purport to answer
that question now." Id. at 689 n.5.

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she could "feel" what appellant was doing but that she was not

looking at him. During the second encounter, the victim was not

thinking about what appellant was doing; rather she "was just

looking forward." On two separate occasions, appellant

instructed the victim not to tell anyone about what occurred.

Given the nature of the relationship of these parties and the

attendant circumstances, we agree with the trial court's

determination that appellant's actions constituted "unwanted,

non-consensual contact" with the victim and that his actions do

not reach the level of constitutional protection. Because we

hold the evidence established that the relations in this case

were non-consensual, we decline to decide the constitutionality

of Code § 18.2-361, as it applies to heterosexual acts between

two consenting adults.

In Bowers, the Court found it significant that "[n]o

connection between family, marriage, or procreation on the one

hand and homosexual activity on the other hand ha[d] been

demonstrated . . . ." Id. at 191. Similarly, appellant has

failed to demonstrate any connection between one of the

enumerated fundamental rights and the actions he now alleges are

constitutionally protected. In this case, it would be

outrageous to sanction the advances of a fifty-nine-year-old man

who took advantage of his position of trust with the young

victim and her family. This is not the "privacy" protected by

either the Due Process Clause or the Griswold line of cases.

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Rather, appellant’s conduct falls squarely within Justice

Stevens' assertion that "[s]ociety has every right . . . to

prohibit an individual from imposing his will on another to

satisfy his own selfish interests." Bowers, 478 U.S. at 217

(Stevens, J., dissenting); see also State v. Temple, 222 N.W.2d

356, 357 (Neb. 1984) ("The assertion that the [sodomy] statute

in the present instance permits an unwarranted invasion of

privacy is unconvincing. The performance of oral copulation

with a four-year-old child, as here, is an act which, if

sanctioned, would be conducive to contributing to the

delinquency and immorality of children. It is within the

purview of the state's police power to prohibit public

immorality and this is a subject in which there is a definite

state interest."). Accordingly, we conclude appellant has

failed to establish that Code § 18.2-361 is unconstitutional as

applied to his actions in the instant case. 6

6
Appellant's reliance on Lovisi v. Slayton, 539 F.2d 349
(4th Cir. 1976), aff'g, 363 F. Supp. 620 (E.D. Va. 1973), is
misplaced. While the Fourth Circuit noted that married couples
"remain protected in their expectation of privacy within their
own bedroom," the Lovisi court concluded that the "federal
protection of privacy dissolve[d]" when the defendants welcomed
other individuals in their private bedroom. Id. at 351.
Additionally, while the court recognized in dicta that the right
of privacy might preclude the prosecution of married parties who
engage in heterosexual sodomy, it clarified in an addendum to
its decision that the right to privacy was "probably" limited to
the marital relationship. Id. at 352 (citing Doe v.
Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199
(E.D. Va. 1975), aff'd, 425 U.S. 901 (1976)).
In the instant case, as we have previously noted,
appellant's conduct was both "non-consensual" and not "acts

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 B. Vagueness

Next, appellant contends the statute is unconstitutionally

vague as applied to private acts of heterosexual oral sex. He

argues that while Code § 18.2-361 makes it unlawful for any

person to "carnally know[ ]" another "in any manner" "by or with

the mouth," the meaning of these broad terms is not self-evident

and is subject to reasonable dispute. Accordingly, appellant

reasons, the statute does not adequately give fair notice to

ordinary citizens of what actions are proscribed as unlawful.

He also contends these ambiguous terms permit discriminatory

enforcement. We disagree.

A penal statute is unconstitutionally void-for-vagueness if

it does not "define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,

357 (1983). The vagueness doctrine recognizes that legislatures

encounter "practical difficulties in drawing criminal statutes

both general enough to take into account a variety of human

conduct and sufficiently specific to provide fair warning that

certain kinds of conduct are prohibited." Colten v. Kentucky,

407 U.S. 104, 110 (1972). As a result, penal statutes need only

define crimes to "'a reasonable degree of certainty.'" Woolfolk

between adults" and, therefore, does not rise to a level of
constitutional protection.

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v. Commonwealth, 18 Va. App. 840, 850, 447 S.E.2d 530, 535

(1994) (quoting Boyce Motor Lines v. United States, 342 U.S.

337, 340 (1952)).

We hold that Code § 18.2-361 is not unconstitutionally

vague either on its face or as applied to appellant. The

statute makes it unlawful for any person to "carnally know[ ]

any male or female person by the anus or by or with the mouth."

Code § 18.2-361(A) (emphasis added). The term "carnal

knowledge" has been construed to include "any sexual bodily

connection, not simply sexual intercourse." Shull v.

Commonwealth, 16 Va. App. 667, 669, 431 S.E.2d 924, 925 (1993),

aff'd, 247 Va. 161, 440 S.E.2d 133 (1994). Carnal knowledge

"with the mouth" is another term for cunnilingus, see Ryan v.

Commonwealth, 219 Va. 439, 441 n.2, 247 S.E.2d 698, 700 n.2

(1978), and carnal knowledge "by the mouth" indicates fellatio.

See Ashby v. Commonwealth, 208 Va. 443, 444, 158 S.E.2d 657, 658

(1968), cert. denied, 393 U.S. 1111 (1969); see also Lankford v.

Foster, 546 F. Supp. 241, 249 n.11 (W.D. Va. 1982) (defining

"sodomy with the mouth" as cunnilingus and "sodomy by the mouth"

as fellatio). 7

In the instant case, we hold that Code § 18.2-361 is

sufficiently clear to inform both citizens and law enforcement

officers of what acts constitute carnal knowledge "by or with

7
Additionally, Code § 18.2-361 defines sodomy as
"cunnilingus, fellatio, annallingus, or anal intercourse."

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the mouth." The statute clearly provides that the acts

prohibited involve contact between the mouth and the genitals,

including heterosexual oral sex. "If the terms of the statute,

when measured by common understanding and practices,

sufficiently warns a person as to what behavior is prohibited,

then the statute is not unconstitutionally vague." Stein v.

Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238, 241 (1991);

see also Parker v. Commonwealth, 24 Va. App. 681, 684, 485

S.E.2d 150, 153 (1997) (The vagueness doctrine requires "that

laws give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act

accordingly."). Under this standard, the statute provides

adequate notice of the unlawful conduct.

We also hold that Code § 18.2-361 is not unconstitutionally

vague as applied to appellant. The language of the statute gave

him reasonable notice that his conduct, performing cunnilingus

on a sixteen-year-old victim, was unlawful. This type of

conduct is within the clear ambit of Code § 18.2-361.

For the foregoing reasons, we affirm appellant's

conviction.

Affirmed.

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