                                                                           FILED
                                                                        April 28, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 33285-3-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOHN THOMAS MUSIC,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. -The trial court vacated John Music's 1975 conviction for sodomy,

determining that the repealed former statute was facially unconstitutional. Concluding

that it was not facially unconstitutional and that Mr. Music did not meet his obligation to

establish that the statute was unconstitutional as applied to his conduct, we reverse and

reinstate the conviction.

                               PROCEDURAL HISTORY

       A one-day crime spree on January 17, 1969, culminated in Mr. Music, then 19,

fatally shooting a 15-year-old boy who fled from an attempted robbery rather than tum

over his leather jacket. Mr. Music was convicted of murder, robbery, and three counts of

attempted robbery. The death penalty was imposed for the murder conviction. State v.

Music, 79 Wn.2d 699, 700-703, 489 P.2d 159 (1971). That sentence was vacated when

the United States Supreme Court invalidated Washington's death penalty in 1972, and
No. 33285-3-III
State v. Music


Mr. Music was resentenced to life in prison on the murder count and lesser concurrent

sentences for the other crimes. In re the Pers. Restraint of Music, 104 Wn.2d 189, 190,

704 P.2d 144 (1985); see also Music v. Washington, 408 U.S. 940, 92 S. Ct. 2877, 33 L.

Ed. 2d 764 (1972); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346

(1972).

       On November 1, 1974, while serving his sentence in the state penitentiary, Mr.

Music and several other prisoners engaged in a gang rape of another prisoner during a

movie in the prison theater. From a later description, it appears that the victim, JM, was

forced to fellate one prisoner at the same time another was anally penetrating him; this

process continued with each of the six or more prisoners engaged in the assault. Mr.

Music was convicted of one count of sodomy in April 1975, and sentenced to ten years in

prison for that crime. 1

       Mr. Music was granted parole on the murder conviction in March 2010. He then

began serving his sodomy sentence at the Airway Heights Correctional Center. On

February 23, 2015, Mr. Music filed a motion to vacate his "consensual" sodomy


       I
          Mr. Music appealed that conviction to this court, which assigned the case file no.
1557-III. His appointed counsel filed a brief in accordance with Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). There is no discussion about the
facts of the case in this court's opinion, but one of the issues noted by counsel involved a
potential argument that the evidence did not support the sodomy conviction because the
victim was forced to commit sodomy on the defendant rather than the defendant
performing the action on the victim. This court rejected the claim. See State v. Music,
No. 1557-III, slip op. at 1 (Wash. Ct. App. Mar. 12, 1976).

                                             2
No. 33285-3-III
State v. Music


conviction on the basis that the former statute was facially unconstitutional because it

violated "a substantive right and fundamental liberty." Clerk's Papers (CP) at 1.

       The motion proceeded to oral argument in the Walla Walla County Superior

Court. Mr. Music argued that all general sodomy statutes were unconstitutional on their

face under Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).

In response, the State argued that Lawrence did not extend as far as Music argued, that

prisoners had no right of sexual privacy, and that his conduct constituted rape. By letter,

the trial court ruled that the former statute was unconstitutional on its face and that the

State could have, but failed, to prosecute Music for rape.

       The State moved to reconsider, again arguing that prisoners could not engage in

consensual sexual relations and appending an affidavit from Music's defense attorney,

retired Judge Donald Schacht. The affidavit described the victim testifying to being

raped by six members of a prison motorcycle gang; he did not consent to the encounter.

The defense replied that the statute was unconstitutional on its face and that the

prosecution should have charged rape instead of sodomy. The trial court denied

reconsideration "for reasons set out in defendant's response brief." CP at 129.

       The State timely appealed to this court. The matter was considered without oral

argument.




                                              3
No. 33285-3-III
State v. Music


                                          ANALYSIS

       This case is in the peculiar posture of requiring a lengthy historical analysis of a

statute repealed four decades ago and applying that understanding to a recent seminal

case of constitutional law. After initially noting the legal standards applicable

constitutional challenges, we tum to the reach of our sodomy and rape statutes in 197 4

before considering Lawrence and its application to this case. 2

       The fundamental difference between the parties' respective arguments involves the

standard to be applied in weighing the former sodomy statute under Lawrence. In

determining the constitutionality of a statute, this court starts with a presumption that the

statute is constitutional and reviews challenges de novo. Lummi Indian Nation v. State,

170 Wn.2d 247, 257-258, 241 P.3d 1220 (2010). A party may challenge the

constitutionality of a statute as-applied in the specific context of that party's actions, or

alternatively may facially challenge that the statute as unconstitutional in all of its

applications. City ofRedmondv. Moore, 151 Wn.2d 664, 668-669, 91 P.3d 875 (2004).

To prevail on the former, the party must show a violation of a constitutional right. Id. at

669. To prevail on the latter, the party must show that no set of circumstances exists in

which the statute can be constitutionally applied. Id. (citing Wash. State Republican Party

v. Pub. Disclosure Comm'n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000)). Holding a



       2   In light of our decision, we do not address the State's laches argument.

                                               4
No. 33285-3-III
State v. Music


statute to be unconstitutional as-applied will prevent future application of that statute in

similar circumstances, while holding a statute facially unconstitutional renders it totally

inoperative. Id.

       History ofRape and Sodomy Statutes

       The statutes governing sex crimes in 1974 primarily were derived from chapter 6

of the Criminal Code of 1909, which defined a wide variety of crimes against morality

and decency. LAWS OF 1909, ch. 249, §§ 183-247. There, rape was defined as "an act of

sexual intercourse with a female not the wife of the perpetrator committed against her

will and without her consent" and was punishable by five years in prison. 3 LA ws OF

1909 ch. 249, § 183. "Sexual intercourse" was defined merely as any "sexual

penetration." Id. at 186. While the modem meanings of the terms "sexual intercourse"

and "sexual penetration" encompass a broad range of sex acts, those terms had a much

narrower meaning under the older statutes. Historically, "sexual intercourse" was purely

synonymous with the more scientific term "copulation," both referring only to the

specific act biologically capable of reproduction. 4


       3
       That law was amended by the Equal Rights Act of 1973 to be gender neutral by
making it possible for a man to be a rape victim, without redefining "sexual intercourse."
LAWS OF 1973, lstEx. Sess., ch. 154, § 122.
       4
         See State v. Snyder, 199 Wash. 298, 300-301, 91 P.2d 570 (1939); BLACK'S LAW
DICTIONARY 1541 (rev' d 4th ed. 1968) (defining sexual intercourse as "carnal copulation
of male and female"); THE OXFORD ENGLISH DICTIONARY VOL. IX 582 (1970) (defining
sexual intercourse as "copulation"); THE OXFORD ENGLISH DICTIONARY VOL. II 977-978
( 1970) (defining copulation as "the union of the sexes in the act of generation").

                                              5
No. 33285-3-III
State v. Music


       The Code of 1909 defined sodomy as having carnal knowledge of "any male or

female person by the anus, or with the mouth or tongue" and was punishable by ten years

in prison. 5 LAWS OF 1909, ch. 249, § 204. This definition explicitly encompasses only

sex acts that are outside the older meaning of "sexual intercourse." See State v. Sawyer,

12 Wn. App. 784, 785-787, 532 P.2d 654 (1975). 6 Consequently, in 1974 the legal

meanings of sodomy and rape encompassed disjoint sets of sex acts, with the rape

statutes only applying to instances of vaginal-penile intercourse and sodomy to other

forms of sexual penetration. 7 The State could not have prosecuted Mr. Music for "rape"

involving sexual conduct with a man. 8




       5The definition of sodomy also included voluntarily submitting to such carnal
knowledge, as well as bestiality and necrophilia. In 193 7, the sodomy statute was
amended to increase the maximum penalty for acts committed upon children. LA ws OF
1937, ch. 74, § 3.
       6
       Sexual intercourse with children under 18 was punished under the carnal
knowledge statute. LAWS OF 1909, ch. 249, § 184; former RCW 9.79.020 (1973); State v.
Cunday, 57 Wn.2d 122, 356 P.2d 609 (1960).
       7
        Rape was then codified at former RCW 9.79.010 (1973), while sodomy was
located at former RCW 9. 79 .100 ( 193 7).
       8
        Because they look at cases involving later revisions in the law, both parties
mistakenly believe that Mr. Music could have been tried in 1974 for rape.


                                             6
No. 33285-3-III
State v. Music


       The rape statute lost its narrow reach in 1975 when the legislature broadened the

definition of "sexual intercourse" to include the sex acts previously defined as sodomy. 9

LAWS OF 1975, 1st Ex. Sess., ch. 14, § 1. In that same session, the legislature enacted a

comprehensive new criminal code that repealed the sodomy statute. LAWS OF 1975, 1st

Ex. Sess., ch. 260, § 9A.92.010(209). However, the repealed laws remained effective

into the next year. LA ws OF 1975, 1st Ex. Sess., ch. 260, § 9A.92.020. Consequently,

from September 7, 1975 until July 1, 1976, the new rape law and the old sodomy law

were both in effect. That fact led to this court addressing-and rejecting-an argument

that the new rape law implicitly repealed the sodomy statute by extending rape to cover

substantially the same conduct as sodomy. State v. Levier, 16 Wn. App. 332, 333-334,

555 P.2d 1003 (1976). This court concluded that the sodomy statute covered a broader

range of conduct than the rape statute did. Id. at 334.

       At the time of Music's sexual encounter with JM on November 1, 1974, sodomy

was the only offense that applied to the actions described by JM. Rape was inapplicable

because the 1974 incident did not involve male-female copulation outside of the marital


       9
         "Sexual intercourse" (a) has its ordinary meaning and occurs upon any
penetration, however slight, and (b) also means any penetration of the vagina or anus
however slight, by an object, when committed on one person by another, whether
such persons are of the same or opposite sex, except when such penetration is
accomplished for medically recognized treatment or diagnostic purposes, and (c) also
means any act of sexual contact between persons involving the sex organs of one
person and the mouth or anus of another whether such persons are of the same or
opposite sex. LAWS OF 1975, 1st Ex. Sess., ch. 14, § 1.

                                             7
No. 33285-3-III
State v. Music


relationship. The sodomy statute was applicable to both men 10 and women and was the

only method of prosecuting non-consensual anal or oral penetration.

       Lawrence v. Texas

       In Lawrence, Texas officers had entered a private house in response to an allegation

of a weapon being fired and discovered the petitioners engaged in anal intercourse with

each other. 539 U.S. at 562-563. The two men were prosecuted under the Texas deviant

sexual intercourse statute that prohibited oral and anal sexual contact between two persons

of the same sex. Id. at 563. The United States Supreme Court ultimately granted certiorari

to determine if the Texas statute violated either the equal protection or due process clauses,

and to decide whether Bowers v. Hardwick 11 should be overruled. Id.

       The five justice majority opinion resolved the case on due process grounds,

framing the issue as "whether the petitioners were free as adults to engage in the private

conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth

Amendment to the Constitution." 12 Id. at 564. The majority concluded that their case




       10
         Since there was no non-marriage element, sodomy was the only means of
prosecuting a husband who anally or orally assaulted his wife. The non-marriage element
was removed from our rape statutes by Laws of 1983, ch. 118.
       II   478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
       12
         Justice O'Connor concurred in the result, finding the Texas statute violated the
equal protection clause. 539 U.S. at 579-585.

                                              8
No. 33285-3-III
State v. Music


law showed "an emerging awareness that liberty gives substantial protection to adult

persons in deciding how to conduct their private lives in matters pertaining to sex." Id. at

572. The majority overruled Bowers after criticizing the narrow scope of the issue

addressed by that opinion: "whether the Federal Constitution confers a fundamental right

upon homosexuals to engage in sodomy." Id. at 566 (quoting Bowers, 478 U.S. at 190).

Lawrence recognized that the narrow issue in Bowers "discloses the Court's own failure

to appreciate the extent of the liberty at stake." Id. at 567. Those interests were far more

involved than Bowers recognized:

      To say that the issue in Bowers was simply the right to engage in certain
      sexual conduct demeans the claim the individual put forward, just as it
      would demean a married couple were it to be said marriage is simply about
      the right to have sexual intercourse. The laws involved in Bowers and here
      are, to be sure, statutes that purport to do no more than prohibit a particular
      sexual act. Their penalties and purposes, though, have more far-reaching
      consequences, touching upon the most private human conduct, sexual
      behavior, and in the most private of places, the home. The statutes do seek
      to control a personal relationship that, whether or not entitled to formal
      recognition in the law, is within the liberty of persons to choose without
      being punished as criminals.
               This, as a general rule, should counsel against attempts by the State,
      or a court, to define the meaning of the relationship or to set its boundaries
      absent injury to a person or abuse of an institution the law protects. It
      suffices for us to acknowledge that adults may choose to enter upon this
      relationship in the confines of their homes and their own private lives and
      still retain their dignity as free persons. When sexuality finds overt
      expression in intimate conduct with another person, the conduct can be but
      one element in a personal bond that is more enduring. The liberty protected
      by the Constitution allows homosexual persons the right to make this choice.

Id.


                                             9
No. 33285-3-III
State v. Music


       Finally, the majority concluded with the observation that its opinion did not

address minors, public conduct, prostitution, or those "who might be injured or coerced

or who are situated in relationships where consent might not easily be refused." Id. at

578. Instead, that 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." Id. The due process clause

prohibited the State from "making their private sexual conduct a crime." Id.

       Application

       With these historical forays, both recent and distant, in mind, it finally is time to

apply this history to the arguments presented. The trial court concluded that the former

sodomy statute was facially unconstitutional under Lawrence. We disagree that

Lawrence cast its nets so widely.

       First, Lawrence itself emphasized that it only addressed consensual, adult same

sex relationships. It expressly exempted statutes involving minors, non-consensual

relationships, public conduct, prostitution, and relationships involving injury. Id.

Second, Lawrence addressed a very narrow statute that expressly applied only to same

sex relationships. Id. at 563. In contrast, Washington's sodomy statute does not appear




                                             10
No. 33285-3-III
State v. Music


to have historically been used to prosecute consenting adults; instead, it appears the

statute was used in cases of assaultive conduct, frequently involving children. 13

       Accordingly, we conclude that Lawrence recognizes a personal liberty interest in

consensual adult sexual behavior. It does not forbid sodomy prosecutions for non-

consensual, public, or adult-child relationships. The reading of Lawrence urged by Mr.

Music effectively treats that case as extending constitutional protections to specific

sexual actions rather than according human dignity to private adult sexual relationships.

       Lawrence does not support a facial challenge to Washington's former sodomy

statute. That statute was the sole means of addressing certain forms of sexual abuse that

the former rape statutes did not reach. The former statute also addressed criminal conduct

that Lawrence expressly exempted from its holding; it was not addressed solely to

consensual adult behavior. Since the former sodomy statute applied to criminal conduct

beyond that invalidated in Lawrence, it is not facially invalid. Moore, 151 Wn.2d at 669.




       13
         See, e.g., State v. Harp, 13 Wn. App. 239, 534 P.2d 842 (1975) (male defendant
anally raped female victim); State v. Sawyer, 12 Wn. App. 784, 532 P.2d 654 (1975) (adult
forced 10-year-old girl to fellate him); State v. Paradis, 72 Wn.2d 563, 434 P.2d 583 (1967)
(adult had consensual sex with a 14-year-old boy); State v. Holbrook, 66 Wn.2d 278, 401
P.2d 971 (1965) (adult sodomizing young boys); State v. Little, 149 Wash. 38, 270 P. 103
(1928) (carnal knowledge of a female child under 18); State v. Beaudin, 76 Wash. 306, 136
P. 137 (1913) (defendant committed sodomy on his 2-year-old daughter). Our review of
over 100 published sodomy cases did not reveal any convictions stemming from private
actions between consenting adults.

                                             11
No. 33285-3-III
State v. Music


      Thus, for Mr. Music to prevail here he needed to establish that the statute was

unconstitutional as applied to his behavior. Although he alleged that his sexual encounter

with JM was consensual, he made no effort to prove that point and the trial court did not

enter any findings in support of that argument. In contrast, the evidence presented by the

State through newspaper clippings and the affidavit of an attorney who recalled the

victim's testimony indicated that Mr. Music engaged in non-consensual sexual contact

that likely would be addressed under our modem rape statutes.

      We conclude that Mr. Music did not establish that he was prosecuted for a

consensual adult same sex relationship that is protected by Lawrence. 14 We reverse the

order vacating the 1975 sodomy conviction.

      Reversed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:




      14
          We therefore need not address the question of whether Lawrence applies to the
prison setting.

                                            12
