CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

Mr. Harry F. Brown for petitioner.

Mr. Claude R. Branch, Special Assistant to the Attorney General, with whom Solicitor General Thacher, Assistant Attorney General Dodds and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.

MR. JUSTICE HOLMES delivered the opinion of the Court.

The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years' imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. [26] Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: "Sec. 2. That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."

Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-propelled vehicle not designed for running on rails." No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used "as a means of transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. [27] It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.

Judgment reversed.

CERTIORARI TO THE SUPREME COURT OF ILLINOIS

[42] [43] [44] Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.

Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.

Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.^[*]

[45] Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang [46] members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.

I

Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.^[1]

The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by [47] criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid.

The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.^[2]

[48] Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.^[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,^[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated [49] areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.^[5]

II

During the three years of its enforcement,^[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.^[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.^[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct [50] is prohibited, and it encourages arbitrary and capricious enforcement by police."^[9]

The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,^[10] consolidated and affirmed other pending appeals in accordance with Youkhana,^[11] and reversed the convictions of respondents Gutierrez, Morales, and others.^[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.^[13]

The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.

In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated [51] to cause harm.^[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."^[15]

We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.

III

The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."^[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt [52] that a law that directly prohibited such intimidating conduct would be constitutional,^[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.

We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.^[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).

While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct [53] protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).

On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.^[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).^[20] [54] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).^[21]

[55] There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.^[22]

[56] Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

IV

"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how [57] any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?^[23]

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.^[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.^[25] However, state [58] courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.^[26]

The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."^[27] We find this response unpersuasive for at least two reasons.

First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.^[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 [59] (1965).^[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.^[30]

Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.

Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally [60] vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).

V

The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse.

Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, [61] see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."

As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.^[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).

Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.

Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons [62] to disperse under the ordinance.^[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.

Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.

It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,^[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.^[34] It applies to everyone in the city [63] who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.

Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.

Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city [64] safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.

VI

In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."^[35] 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

Accordingly, the judgment of the Supreme Court of Illinois is

Affirmed.

Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.

I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4—015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to [65] establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 (1983). Of these, "the more important aspect of the vagueness doctrine `is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I share Justice Thomas' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peace keeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "`a standardless sweep . . . to pursue their personal predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575).

The ordinance at issue provides:

"Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a.

To "[l]oiter," in turn, is defined in the ordinance as "to remain in any one place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).

As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement [66] officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (Thomas, J., dissenting). Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4—015(c)(5) (1992).

To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.

This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree [67] with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true .. . that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them.

It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the "`presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,' " that "`intimidates residents.' " Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill . . . their traditional functions," including "preserving the public peace." See post, at 106 (Thomas, J., dissenting). Specifically, [68] Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4—010 (1992).

In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a—61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.

The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "`[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it' " (citations and internal quotation marks omitted)); New York [69] v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment.

Justice Kennedy, concurring in part and concurring in the judgment.

I join Parts I, II, and V of the Court's opinion and concur in the judgment.

I also share many of the concerns Justice Stevens expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.

We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; [70] nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose.

Justice Breyer, concurring in part and concurring in the judgment.

The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4—015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4—015(c)(1).

The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and Justice O'Connor, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for . . . ." And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature."

[71] Nor does it violate "our rules governing facial challenges," post, at 74 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) ("If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it").

Justice Scalia's examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.

[72] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment).

I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own.

This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained:

"It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted).

[73] The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.

Justice Scalia, dissenting.

The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional.

Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional.

Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated [74] in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4—015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.

The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.

I

Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.

[75] That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:

"The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power. 

. . . . .

"Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule . . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can [76] be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956).

As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):

"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."

And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):

"The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of [77] constitutional law broader than is required by the precise facts to which it is to be applied.' . . .Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."

It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?

I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish [78] that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us—whose case, after all, was the occasion for undertaking this inquiry in the first place.^[1])

As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):

"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-

[79] stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.)^[2]

This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by Stevens, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by Stevens, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan, [80] 500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).^[3] Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.^[4]

[81] I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (Scalia, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception—which, though illogical, is at least predictable. It is not à la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city.

When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:^[5] Tony, a member of the Jets criminal street gang, is standing [82] alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it,I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness.

Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using [83] the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez—who had previously admitted to the arresting officer his membership in the Latin Kings gang—was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications.

II

The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights . . . . When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) [H11501] (infringement of constitutionally protected right) [H11501] (vagueness) [H11505] (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.

But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes [84] it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally un protected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement. . . . It is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No. 6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).)

Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.

The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice Thomas recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly [85] compendia in Justice Thomas' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494, 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,^[6] and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the [86] point.^[7] It is enough for the Members of the plurality that "history . . . [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.^[8]

It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally [87] protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from Justice O'Connor's and Justice Breyer's opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on"—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver.

Justice Kennedy apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). [88] But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the follow-up explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that Justice Kennedy thinks is constitutional—as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70.

III

I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O'Connor, J., concurring in part and concurring in judgment); ante, at 69-70 (Kennedy, J., concurring in part and concurring in judgment); ante, at 72-73 (Breyer, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The [89] only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.

The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.

IV

Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz overbreadth [90] standard applied in Kolender v. Lawson, 461 U. S. 352, 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).

The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.^[9] If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the President, [91] before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I . . .command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse . . . forthwith"). See also Boos v. Barry, 485 U. S. 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific").

For its determination of unconstitutional vagueness, the Court relies secondarily—and Justice O'Connor's and Justice Breyer's concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment); ante, at 72 (Breyer, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at [92] 61, 63 (majority opinion); ante, at 68 (O'Connor, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved—after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound).

The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.^[10] Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a—69a, 71a—72a.

Second, the ordinance requires that the group be "remain[ing] in any one place with no apparent purpose." Justice O'Connor's assertion that this applies to "any person standing [93] in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"— a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83.

As for the phrase "with no apparent purpose": Justice O'Connor again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general `purpose'—even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible. " Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in any one place with no apparent purpose"—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.^[11]

The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The `no apparent purpose' standard for making [the decision to [94] issue an order to disperse] is inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to disperse— the absence of any apparent purpose—is a subjective factor. This side of the looking glass, just the opposite is true.

Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:

"In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she `shall'—order them to disperse." Ante, at 60.

Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the trade-off is worth it.^[12]

[95] Justice Breyer's concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what Justice Breyer gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra.^[13]

[96]

V

The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.

Justice O'Connor's concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "street gang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.

[97] Justice O'Connor's concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not.

* * *

The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O'Connor's concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).

But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, [98] and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation—and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.

I dissent from the judgment of the Court.

Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352, 370 (1983) (White, J.,dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way "`deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (citation omitted). I dissent.

I

The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually [99] overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence . . . is both physically and psychologically debilitating").

The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.^[1] Many [100] of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts").

Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work:

"When I walk out my door, these guys are out there . . . .

. . . . .

"They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me . . . .

". . . I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of [101] Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript).

Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore . . . . I am scared to go out in the daytime. . . . [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified:

"I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .

. . . . .

"I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125.

Following these hearings, the council found that "criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process—the council's attempt to address these social ills—that we are asked to pass judgment upon today.

II

As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police [102] have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons—because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree.

A

We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial `guide posts for responsible decision-making' . . . that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. Glucksberg, supra, at 720-721.

The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges—as it must—that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause." Ante, at 54, [103] n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months.

The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.^[2] Vagrancy laws [104] were common in the decades preceding the ratification of the Fourteenth Amendment,^[3] and remained on the books long after.^[4]

[105] Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one—decided more than 100 years after the ratification of the Fourteenth Amendment— actually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.^[5] However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases—it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter—a doubtful proposition—it [106] does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. . . . [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid.

B

The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.

1

At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs [107] 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.^[6]

In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:

[108] "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).

See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.^[7] Even the ABA Standards for [109] Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' . . . . The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).^[8]

In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" [110] and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690, 695, 700 (1996) ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence.

The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited [111] to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form—requiring the dispersal of groups that contain at least one gang member—actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times.

In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid").

[112]

2

The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.^[9] While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.

Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted [113] meaning of the word `loiter.' " 177 Ill. 2d, at 451, 687 N. E. 2d, at 61.

Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.^[10]

The plurality also concludes that the definition of the term loiter—"to remain in any one place with no apparent purpose," [114] see 177 Ill.2d, at 445, 687 N. E. 2d, at 58—fails to provide adequate notice.^[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place . . .would know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566, 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no.

* * *

Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so— the people who will have to live with the consequences of [115] today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens, ante, at 54, elevates above all else—the "`freedom of movement.' " And that is a shame. I respectfully dissent.

[*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.

Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.

[1] The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas' dissenting opinion. Post, at 100-101.

[2] The ordinance states in pertinent part:

"(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.

"(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.

"(c) As used in this Section:

"(1) `Loiter' means to remain in any one place with no apparent purpose.

"(2) `Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

. . . . .

"(5) `Public place' means the public way and any other location open to the public, whether publicly or privately owned.

"(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.

"In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4—120 of this Code." Chicago Municipal Code § 8-4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a.

[3] As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.

[4] Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.

[5] Tr. of Oral Arg. 22-23.

[6] The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.

[7] Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).

The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among . . . experts over the causes of the decline in crime in New York City and nationally").

[8] See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).

[9] Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.

[10] Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).

[11] Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.

[12] Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.

[13] Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.

[14] "The ordinance defines `loiter' to mean `to remain in any one place with no apparent purpose.' Chicago Municipal Code § 8-4—015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451— 452, 687 N. E. 2d, at 60-61.

[15] It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.

[16] Brief for Petitioner 14.

[17] In fact the city already has several laws that serve this purpose. See, e. g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).

[18] Brief for Petitioner 17.

[19] See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice Scalia, post, at 83-86 (dissenting opinion), and Justice Thomas, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.

[20] Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the "`Slavery acts' " provided for a 2-year enslavement period for anyone who "`liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "`any runaway, stubborn servant or child' " and "`a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.' " T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in Justice Thomas' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.

[21] The freewheeling and hypothetical character of Justice Scalia's discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.

In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.

[22] The burden of the first portion of Justice Scalia's dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.

We need not, however, resolve the viability of Salerno `s dictum, because this case comes to us from a state—not a federal—court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).

Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). Justice Scalia's assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).

[23] The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an `apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.

[24] 177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the `basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a—49a.

[25] See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381, 394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).

[26] See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").

[27] Brief for Petitioner 31.

[28] In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under . . . Kentucky's statute if he fails to obey an order to move on." Ibid.

[29] "Literally read . . . this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S.,at 90.

[30] As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).

[31] This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally,may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.

[32] It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.

[33] Justice Thomas' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.

[34] Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.

[35] This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, Justice Thomas, see post, at 102-106, and Justice Scalia, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucksberg, 521 U. S. 702 (1997).

[1] In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733, 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness").

The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants . . . did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them.

[2] Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).

[3] The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.

The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.

[4] See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. denied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F. 3d 804, 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992), cert.denied, 506 U. S. 1053 (1993);Woodis v. Westark Community College, 160 F. 3d 435, 438-439 (CA8 1998); Roulette v.Seattle, 97 F. 3d 300, 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CA10 1999); Dimmitt v. Clearwater, 985 F. 2d 1565, 1570— 1571 (CA11 1993); Time Warner Entertainment Co. v. FCC, 93 F. 3d 957, 972 (CADC 1996).

[5] With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959.

[6] The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty.

[7] Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process . . . . We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39.

[8] The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg. " Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is . . . a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases).

The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58.

[9] I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery—suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet) .

[10] "Administrative interpretation and implementation of a regulation are . .. highly relevant to our [vagueness] analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v.Rock Against Racism, 491 U. S.781, 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope").

[11] Justice Breyer asserts that "one always has some apparent purpose," so that the policeman must "interpret the words `no apparent purpose' as meaning `no apparent purpose except for . . . .' " Ante, at 70. It is simply not true that "one always has some apparent purpose"—and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move.

[12] The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable—viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says . . . ." Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning.

[13] The opinion that Justice Breyer relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (Breyer, J., concurring in part and concurring in judgment).

[1] In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).

[2] See,e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprintedin 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprintedin First Laws of the State of Connecticut 206-210 (J.Cushing comp. 1982));Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J.Cushing comp. 1981));Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).

[3] See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York v. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283, 425 (1849) (opinion of Wayne, J.); Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).

[4] See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated . . . the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. I. Gen. Stat., ch. 232, § 24 (1872); Ill. Rev. Stat., ch. 38, § 270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, § 4758 (1894); Ill. Rev. Stat., ch. 38, § 270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code § 887 (1902); Pa. Stat. §§ 21409, 21410 (1920); Ky. Stat. § 4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. § 21-2409 (1964).

[5] The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270, 274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110, 127, n. 6 (1989) (plurality opinion).

[6] See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State . . . be duly kept"); Ill. Comp. Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. § 40:1379 (West 1992) ("Police employees . . .shall . . . keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force . . . is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances").

[7] For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Comp. Stat., ch. 720, § 5/251(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060, 525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, § 502 (1983); Mass. Gen. Laws, ch. 269, § 2 (1992); Mich. Comp. Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. § 45-8-102 (1997); Nev. Rev. Stat. § 203.020 (1995); N. H. Rev. Stat. Ann. §§ 644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. § 2C:33-1(b) (West 1995); N. Y. Penal Law § 240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-10(a) (1985); S. D. Codified Laws § 22-10-11 (1998); Tenn. Code Ann. § 39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994).

[8] See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places . . ."); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff . . . to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections . . .").

[9] The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v.Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, itis apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene.

[10] For example, a 1764 Georgia law declared that "all able bodied persons . . . who shall be found loitering . . . , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond . . . found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing comp. 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants . . . . All persons who shall . . . be found loitering"); Ky. Rev. Stat., ch. CIV, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, . . . he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor").

[11] The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "`provides absolute discretion to police officers to decide what activities constitute loitering,' "ante, at 61 (quoting 177 Ill.2d, at 457, 687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] `practical effect' . . . .This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993).

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

[559] [560] [561] KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.

Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.^[*]

[562] JUSTICE KENNEDY delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

I

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

[564] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

II

We conclude the case should be resolved by determining 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. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and [565] placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

"It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.

The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

[566] In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).

The Court began its substantive discussion in Bowers as follows: "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 [567] for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. 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.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions [568] in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.

It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, [571] 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).

In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude [575] the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional [578] attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The 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. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE O'CONNOR, concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.

[581] The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.

And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).

Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

[583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.

Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.

Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" [584] "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).

A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson:

"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

[586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.

I

I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. [587] I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.

Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.

[588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.

(2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).^[1] Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").

(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.^[2]

[591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.

II

Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

"No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).

[593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).^[3] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

[594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.

I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

III

The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.

Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").

After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, [596] at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:

"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

[597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.

Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.

In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

[599]

IV

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

V

Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. [601] It is instead directed toward gay persons as a class." Ante, at 583.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

* * *

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] 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," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

JUSTICE THOMAS, dissenting.

I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

[*] Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.

Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

[1] This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.

[2] While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).

[3] The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for appellant-respondent.

Charles J. McDonough for respondent-appellant.

CONWAY, Ch. J., DYE and BURKE, JJ., concur with FROESSEL, J., DESMOND J., concurs in part and dissents in part in an opinion in which FULD and VAN VOORHIS, JJ., concur.

FROESSEL, J.

At about 3:30 P.M. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.

It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.

A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.

After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily — apparently because defendant was "stooped over" the steering wheel — the car proceeded on the sidewalk until it finally crashed through a 7¼-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.

[136] When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was "bobbing a little". To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and "within a matter of seconds the horn stopped blowing and the car did shut off".

Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared "injured, dazed"; another witness said that "he looked as though he was knocked out, and his arm seemed to be bleeding". An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: "I blacked out from the bridge".

When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed — defendant did not take the stand nor did he produce any witnesses.

From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read: "Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD-553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed."

On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a [137] resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room — according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant "on the bed", and he stated that he heard the entire conversation between them, although he did not testify as to its content.

Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had communicated to him the contents of the "pink slip". While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:

That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treatment. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment, among other things; that in the hospital they treat any patient that comes in.

He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: "I don't know. I just seen him as a patient coming into the hospital". He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant "was a patient"; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.

He also stated he never told defendant that he had any pink [138] slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.

The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.

Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.

On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took [139] an electroencephalogram during defendant's three-day stay there. The testimony of Dr. Wechter is the only testimony before the trial court showing that defendant had epilepsy, suffered an attack at the time of the accident, and had knowledge of his susceptibility to such attacks.

Defendant was indicted and charged with violating section 1053-a of the Penal Law. Following his conviction, after a demurrer to the indictment was overruled, the Appellate Division, while holding that the demurrer was properly overruled, reversed on the law, the facts having been "examined" and found "sufficient". It granted a new trial upon the ground that the "transactions between the defendant and Dr. Wechter were between physician and patient for the purpose of treatment and that treatment was accomplished", and that evidence thereof should not have been admitted. From its determination both parties have appealed.

We turn first to the subject of defendant's cross appeal, namely, that his demurrer should have been sustained, since the indictment here does not charge a crime. The indictment states essentially that defendant, knowing "that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time", was culpably negligent "in that he consciously undertook to and did operate his Buick sedan on a public highway" (emphasis supplied) and "while so doing" suffered such an attack which caused said automobile "to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk" causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law. The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a "disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment." (People v. Angelo, 246 N.Y. 451, 457.)

Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic [140] attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?

To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held (People v. Eckert, 2 N Y 2d 126, decided herewith; People v. Kreis, 302 N.Y. 894; Matter of Enos v. Macduff, 282 App. Div. 116; State v. Gooze, 14 N. J. Super. 277). To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation (see Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N.Y. 639), and there is simply no basis for comparing such cases with the flagrant disregard manifested here.

It is suggested in the dissenting opinion that a new approach to licensing would prevent such disastrous consequences upon our public highways. But would it — and how and when? The mere possession of a driver's license is no defense to a prosecution under section 1053-a; nor does it assure continued ability to drive during the period of the license. It may be noted in passing, and not without some significance, that defendant strenuously and successfully objected to the district attorney's offer of his applications for such license in evidence, upon the ground that whether or not he was licensed has nothing to do with the case. Under the view taken by the dissenters, this defendant would be immune from prosecution under this statute even if he were unlicensed. Section 1053-a places a personal [141] responsibility on each driver of a vehicle — whether licensed or not — and not upon a licensing agency.

Accordingly, the Appellate Division properly sustained the lower court's order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.

The appeal by the People (hereinafter called appellant) challenges the determination of the Appellate Division that the testimony of Dr. Wechter was improperly admitted in contravention of section 352 of the Civil Practice Act, which states that a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity".

Two questions are raised by this appeal. The first is whether a physician-patient relationship existed between Dr. Wechter and defendant, and, if so, whether the communications made by defendant to him were necessary for the doctor to act in his professional capacity. The second is whether the presence of the police guard in the doorway of the room destroys any privilege arising under section 352 and permits the doctor to testify. It is not contested that defendant, as the party asserting the privilege, bears the burden of showing its application in the present case (Bloodgood v. Lynch, 293 N.Y. 308, 314; People v. Austin, 199 N.Y. 446, 452; People v. Koerner, 154 N.Y. 355, 366; People v. Schuyler, 106 N.Y. 298, 304). He claims to have sustained the burden on the basis of appellant's own evidence previously outlined.

Appellant contends that no professional relationship arose because the doctor was sent by the district attorney to examine, not treat, the defendant, and in fact he did not treat him. The cases upon which appellant relies are readily distinguishable from the one now before us. In People v. Schuyler (supra), for example, a jail physician was allowed to testify, over an objection based on the predecessor statute to section 352 of the Civil Practice Act, to his observations of the prisoner's mental condition. There was no evidence that the prisoner was ill, or that he was attended by, treated, or required any treatment by said jail physician while in custody.

The criterion to be applied in determining whether or not a professional relationship exists was stated in People v. Austin (199 N.Y. 446, supra). The testimony of a physician describing [142] an examination of defendant in jail relating to his sanity was found admissible because there were no circumstances from which it might be inferred that the defendant "was led to accept him [the examining doctor] as a physician and consequently to disclose to him information that perhaps would not otherwise have been given" (p. 452). This rule the court derived from People v. Stout (3 Parker Cr. Rep. 670, 676).

In People v. Koerner (154 N.Y. 355, 365-366, supra), as in People v. Furlong (187 N.Y. 198, 208-209), testimony of physicians was admitted, but in each case the defendant was explicitly informed that the physician was not acting in his capacity as a doctor or that information obtained might be used against him in subsequent legal proceedings (see, also, People v. Leyra, 302 N.Y. 353, 363, which had an altogether different fact pattern, however).

People v. Sliney (137 N.Y. 570, 580) and People v. Hoch (150 N.Y. 291, 302-303) are consistent with the rule of the Austin and Stout cases (supra). They are additional instances where the testimony of physicians who held examinations in jails was admitted, since no evidence was adduced from which it might be found that the defendants could reasonably have regarded the physician as acting in a professional capacity towards them.

Appellant further contends that there can be no finding of physician-patient relation in this case because there is no evidence that Dr. Wechter actually treated defendant. The cases relied on by appellant are inapposite. They properly hold that where a physician does treat a person, regardless of whether it is at his request, or with his consent, the relation arises, but they do not hold the converse (Meyer v. Knights of Pythias, 178 N.Y. 63, affd. 198 U. S. 508; People v. Murphy, 101 N.Y. 126). In determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive (Grattan v. Metropolitan Life Ins. Co., 24 Hun 43, 46).

In any event, although Dr. Wechter testified that he personally did not treat defendant, he admitted that other doctors and internes in the hospital did "treat" him for Jacksonian epilepsy. He himself made that diagnosis. To say that in a hospital, where there is division of duties among the staff, the relation of physician and patient does not arise with regard to those members of the staff who do not actually treat the patient [143] is unsound. It would place upon section 352 strictures that are opposed to our oft-expressed view that the statute is to be liberally construed (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N.Y. 450, 455; Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 300; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194).

It is apparent that the information here given by the defendant was necessary for his treatment. Those cases allowing disclosure by physicians of information related to them by their patients deal with such nonprofessional matters as details of an accident entirely unrelated to treatment (Griffiths v. Metropolitan St. Ry. Co., 171 N.Y. 106; Green v. Metropolitan St. Ry. Co., 171 N.Y. 201; Gray v. City of New York, 137 App. Div. 316, 321; Travis v. Haan, 119 App. Div. 138; Benjamin v. Village of Tupper Lake, 110 App. Div. 426; De Jong v. Erie R. R. Co., 43 App. Div. 427), or facts such as a layman might observe (Klein v. Prudential Ins. Co., 221 N.Y. 449; Sparer v. Travelers Ins. Co., 185 App. Div. 861). Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.

The second question will now be dealt with. The problem here is what effect, if any, the presence of the police guard, pursuant to the orders of the district attorney, in or about the doorway of the hospital room, where he could overhear the conversation between Dr. Wechter and defendant, has upon the privilege under section 352. That section does not in so many words require that a communication be confidential or confidentially given in order to be privileged. So we turn to the cases. In Matter of Coddington (307 N.Y. 181, 187-191) (then) CONWAY, J., pointed out that Judge EARL attempted, in Edington v. Ætna Life Ins. Co. (77 N.Y. 564) to confine the statute to information of a confidential nature, but the court did not agree with him on that point. As a result of the cases that followed — Grattan v. Metropolitan Life Ins. Co. (80 N.Y. 281) and Renihan v. Dennin (103 N.Y. 573) — in the latter of which Judge EARL suggested legislation, section 836 of the Code of Civil Procedure (now Civ. Prac. Act, § 354) was amended to allow physicians in effect to testify as to nonconfidential communications of deceased patients where the privilege has been waived by persons [144] authorized by the section to do so. The language of those cases was exceedingly broad, and it was pointed out that, under the literal phraseology of code section 834, the physician was absolutely prohibited from testifying so long as the conditions of the statute were met.

Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. (154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman (183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible. A third case, Sparer v. Travelers Ins. Co. (185 App. Div. 861, 864 [1st dept.], supra), reached the same conclusion; it did not allow the testimony of a physician as to the details of an operation he performed to be received in evidence, although a medical student was present during its performance. And now the fourth department in the case at bar has impliedly held likewise in the case of a police guard. The present case falls clearly within the scope of these decisions. If anything, it presents an even stronger situation, for the guard's presence was ordered by command of the public authorities.

An opposite result is not indicated by those cases dealing with the effect of the presence of a third person upon the attorney-client privilege under section 353 of the Civil Practice Act (Baumann v. Steingester, 213 N.Y. 328; People v. Buchanan, 145 N.Y. 1, 26). The Denaro case (154 App. Div. 840, supra) expressly held that the situations were not analogous. It may be noted that the applicable statutes are not identical. Under section 353, relating to attorneys, the privilege extends only to "a communication, made by his client to him". Under section 352 relating to physicians, however, the privilege extends to "any information which he acquired in attending a patient"; since such information may be acquired from third persons — and third persons who have some definite relationship to the [145] patient are often present — the situation is not analogous to an attorney-client relationship.

Whether or not this distinction accounts for the fact that in attorney-client cases it has generally been held that the presence of a third person destroys the privilege, the cases suggest that even here there are exceptions (Baumann v. Steingester, supra, p. 332; People v. Buchanan, supra, p. 26). So if the communication was intended to be confidential, the fact that it may have been overheard by a third person does not necessarily destroy the privilege (see People v. Cooper, 307 N.Y. 253, 259, n. 3; Erlich v. Erlich, 278 App. Div. 244, 245; Richardson on Evidence [8th ed.], § 438).

The true test appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. Applying this test, we hold that under section 352, and the cases construing it, the communication by defendant to Dr. Wechter was privileged, and admission of it by the trial court was error, as correctly stated by the Appellate Division.

Defendant raises the subsidiary question that the hospital record was improperly received in evidence before the Grand Jury, and the indictment should, therefore, be dismissed. A word may be said about that. He made no motion for inspection of the minutes of the Grand Jury. We do not know what evidence was adduced there, for the Grand Jury minutes are not a part of this record. Even if we assume that the hospital record was improperly before the Grand Jury, we have no way of knowing what other evidence may have been adduced and formed a sufficient basis for the indictment. There is a presumption that an indictment is based on legally sufficient evidence (see People v. Eckert, supra; People v. Sweeney, 213 N.Y. 37, 44; People v. Sexton, 187 N.Y. 495, 512; People v. Glen, 173 N.Y. 395, 403). We cannot here rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is. Defendant should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.

Accordingly, the order of the Appellate Division should be affirmed.

[146] DESMOND, J. (concurring in part and dissenting in part).

I agree that the judgment of conviction cannot stand but I think the indictment should be dismissed because it alleges no crime. Defendant's demurrer should have been sustained.

The indictment charges that defendant knowing that "he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness" suffered "an attack and loss of consciousness which caused the said automobile operated by the said defendant to travel at a fast and reckless rate of speed" and to jump a curb and run onto the sidewalk "thereby striking and causing the death" of 4 children. Horrible as this occurrence was and whatever necessity it may show for new licensing and driving laws, nevertheless this indictment charges no crime known to the New York statutes. Our duty is to dismiss it.

Section 1053-a of the Penal Law describes the crime of "criminal negligence in the operation of a vehicle resulting in death". Declared to be guilty of that crime is "A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed". The essentials of the crime are, therefore, first, vehicle operation in a culpably negligent manner, and, second, the resulting death of a person. This indictment asserts that defendant violated section 1053-a, but it then proceeds in the language quoted in the next-above paragraph of this opinion to describe the way in which defendant is supposed to have offended against that statute. That descriptive matter (an inseparable and controlling ingredient of the indictment, Code Crim. Pro., §§ 275, 276; People v. Dumar, 106 N.Y. 502) shows that defendant did not violate section 1053-a. No operation of an automobile in a reckless manner is charged against defendant. The excessive speed of the car and its jumping the curb were "caused", says the indictment itself, by defendant's prior "attack and loss of consciousness". Therefore, what defendant is accused of is not reckless or culpably negligent driving, which necessarily connotes and involves consciousness and volition. The fatal assault by this car was after and because of defendant's failure of consciousness. To say that one drove a car in a reckless manner in that his unconscious condition caused the car to travel recklessly is to make two mutually contradictory assertions. One cannot be "reckless" while unconscious. One cannot while unconscious [147] "operate" a car in a culpably negligent manner or in any other "manner". The statute makes criminal a particular kind of knowing, voluntary, immediate operation. It does not touch at all the involuntary presence of an unconscious person at the wheel of an uncontrolled vehicle. To negative the possibility of applying section 1053-a to these alleged facts we do not even have to resort to the rule that all criminal statutes are closely and strictly construed in favor of the citizen and that no act or omission is criminal unless specifically and in terms so labeled by a clearly worded statute (People v. Benc, 288 N.Y. 318, 323, and cases cited).

Tested by its history section 1053-a has the same meaning: penalization of conscious operation of a vehicle in a culpably negligent manner. It is significant that until this case (and the Eckert case, 2 N Y 2d 126, handed down herewith) no attempt was ever made to penalize, either under section 1053-a or as manslaughter, the wrong done by one whose foreseeable blackout while driving had consequences fatal to another person.

The purpose of and occasion for the enactment of section 1053-a is well known (see Governor's Bill Jacket on L. 1936, ch. 733). It was passed to give a new label to, and to fix a lesser punishment for, the culpably negligent automobile driving which had formerly been prosecuted under section 1052 of the Penal Law defining manslaughter in the second degree. It had been found difficult to get manslaughter convictions against death-dealing motorists. But neither of the two statutes has ever been thought until now to make it a crime to drive a car when one is subject to attacks or seizures such as are incident to certain forms and levels of epilepsy and other diseases and conditions.

Now let us test by its consequences this new construction of section 1053-a. Numerous are the diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. Epilepsy, coronary involvements, circulatory diseases, nephritis, uremic poisoning, diabetes, Meniere's syndrome, a tendency to fits of sneezing, locking of the knee, muscular contractions — any of these common conditions may cause loss of control of a vehicle for a period long enough to cause a fatal accident. An automobile traveling at only 30 miles an hour goes 44 feet in a second. Just what is the court holding here? No less than [148] this: that a driver whose brief blackout lets his car run amuck and kill another has killed that other by reckless driving. But any such "recklessness" consists necessarily not of the erratic behavior of the automobile while its driver is unconscious, but of his driving at all when he knew he was subject to such attacks. Thus, it must be that such a blackout-prone driver is guilty of reckless driving (Vehicle and Traffic Law, § 58) whenever and as soon as he steps into the driver's seat of a vehicle. Every time he drives, accident or no accident, he is subject to criminal prosecution for reckless driving or to revocation of his operator's license (Vehicle and Traffic Law, § 71, subd. 3). And how many of this State's 5,000,000 licensed operators are subject to such penalties for merely driving the cars they are licensed to drive? No one knows how many citizens or how many or what kind of physical conditions will be gathered in under this practically limitless coverage of section 1053-a of the Penal Law and section 58 and subdivision 3 of section 71 of the Vehicle and Traffic Law. It is no answer that prosecutors and juries will be reasonable or compassionate. A criminal statute whose reach is so unpredictable violates constitutional rights, as we shall now show.

When section 1053-a was new it was assailed as unconstitutional on the ground that the language "operates or drives any vehicle of any kind in a reckless or culpably negligent manner" was too indefinite since a driver could only guess as to what acts or omissions were meant. Constitutionality was upheld in People v. Gardner (255 App. Div. 683). The then Justice LEWIS, later of this court, wrote in People v. Gardner that the statutory language was sufficiently explicit since "reckless driving" and "culpable negligence" had been judicially defined in manslaughter cases as meaning the operation of an automobile in such a way as to show a disregard of the consequences (see People v. Angelo, 246 N.Y. 451). The manner in which a car is driven may be investigated by a jury, grand or trial, to see whether the manner was such as to show a reckless disregard of consequences. But giving section 1053-a the new meaning assigned to it permits punishment of one who did not drive in any forbidden manner but should not have driven at all, according to the present theory. No motorist suffering from any serious malady or infirmity can with [149] impunity drive any automobile at any time or place, since no one can know what physical conditions make it "reckless" or "culpably negligent" to drive an automobile. Such a construction of a criminal statute offends against due process and against justice and fairness. The courts are bound to reject such conclusions when, as here, it is clearly possible to ascribe a different but reasonable meaning (People v. Ryan, 274 N.Y. 149, 152; Matter of Schwarz v. General Aniline & Film Corp., 305 N.Y. 395, 406, and cases cited).

A whole new approach may be necessary to the problem of issuing or refusing drivers' licenses to epileptics and persons similarly afflicted (see Barrow and Fabing on Epilepsy and the Law, ch. IV; Restricted Drivers' Licenses to Controlled Epileptics, and see 2 U.C.L.A. L. Rev., p. 500 et seq.). But the absence of adequate licensing controls cannot in law or in justice be supplied by criminal prosecutions of drivers who have violated neither the language nor the intendment of any criminal law.

Entirely without pertinence here is any consideration of driving while intoxicated or while sleepy, since those are conditions presently known to the driver, not mere future possibilities or probabilities.

The demurrer should be sustained and the indictment dismissed.

Order affirmed.

[365] COUNSEL

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant.

[366] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RATTIGAN, J.

Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.

Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, § 245b); count Three, with the kidnaping of Dell Ross. (Pen. Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.

After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.

At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:

Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told [367] Frey that "we have got some PIN information coming out on that."^[1] Frey replied, "Check. It's a known Black Panther vehicle.... I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.

A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.

Lord testified that under such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."

After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "FREY: 1A, it's the same address. He has on his registration 1114-12th Street? RADIO [Lord]: Check. What's his birth date? FREY: He gave me some phony. I guess he caught on. RADIO: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. FREY: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.

Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A [368] beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)

After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.

Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.

Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.

Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk [369] area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were tussling on the rear part of my car."^[2] Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.

Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.

Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. [370] (Grier did not then, or again, see the other "civilan" he had noticed when driving west on Seventh Street.)

As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward.^[3] These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.

Gilbert DeHoyos and Thomas Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967, both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant] and I think he hit him ... he [Heanes] thought he hit him."

Defendant arrived at the emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant) had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.

Officers Frey and Heanes were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time but in an unknown order. One bullet entered in the front, and [371] exited through the back, of his left shoulder; another passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet wounds: one in his right arm, one in the left knee, one in the chest.

Three slugs were recovered: one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been fired from an automatic (Officers Frey and Heanes carried .38-caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's revolver was found.

Oakland Police Department Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings. Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges; the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.

Davis testified that a gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.

[372]

Defense Evidence

Tommy Miller gave this testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967. As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man] up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from the back of the bus (which had stopped), a police officer lying on the ground.

Gene McKinney, who was also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and gave no further testimony.

Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.

A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.

[373] Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book^[4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots." He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that — after recalling some events at Kaiser Hospital — he later "regained consciousness" at another hospital.

The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."

The Instructions Upon Unconsciousness

Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows — and the Attorney General emphasizes — that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting — by number only — specified CALJIC instructions pertaining, among other things, to self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter.^[5] At the suggestion of all counsel, the court announced that "... [A]rgument and discussion concerning [374] the proposed instruction will be had in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:

"THE COURT: Gentlemen, in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?

"MR. GARRY [defense counsel]: That is correct.

"THE COURT: Mr. Newton, you understand that? Meet with your approval?

"THE DEFENDANT: Yes, it does.

"THE COURT: Now, the attorneys for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?

"MR. GARRY: That is correct.

"THE COURT: Very well. The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval, Mr. Garry?

"MR. GARRY: Yes, Your Honor.

"THE COURT: Mr. Newton, that has been explained to you and it meets with your approval?

"THE DEFENDANT: Yes." (Italics added.)

The trial court then enumerated, with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:

"MR. GARRY: Let the record show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as an objection on our part.

"THE COURT: Well, with the exception, of course, of those which have — 322 and 322A — which you have withdrawn, 71C and 71D which, in effect, you have withdrawn, because we are giving 73B —

"MR. GARRY: Yes, Your Honor.

"THE COURT: Those are the only ones. All the other instructions, yes, [375] I have gone through all of them and they are either not given or else they are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know now what instructions the Court plans to give...."^[6]

Thereafter the trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request, the court also gave instructions on voluntary manslaughter^[7] and diminished capacity.^[8] Pursuant to the judge's intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self-defense (CALJIC 322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.

Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself.^[9] [376] Given this sequence, defendant's testimony of his sensations when shot — supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound — supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.

(1) Where not self-induced, as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness is a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303, 316-317 [78 Cal. Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal. Rptr. 156, 427 P.2d 820].) "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist — and the above-stated rule can apply — where the subject physically acts in fact but is not, at the time, conscious of acting.^[10] The statute underlying the rule makes this clear,^[11] as does one of the unconsciousness instructions originally requested by defendant.^[12] (See also People v. Roerman (1961) 189 Cal. App.2d 150, 160-163 [10 Cal. Rptr. 870] and cases cited.) Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" (e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal. Rptr. 790, 454 P.2d 686]; People v. Wilson, supra, at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore (1970) 5 Cal. App.3d 486, 488-490, 492 [85 Cal. Rptr. 194]; People v. Edgmon (1968) 267 Cal. App.2d 759, 762-763, 764 [fn. 5], [73 Cal. Rptr. 634]; People v. Cox (1944) 67 Cal. App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting. [377] (E.g., People v. Wilson, supra, at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)

(2) Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo (1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)

Defendant did not request instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." (4) But a trial court is under a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates. (People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal. App.3d 970, 977 [82 Cal. Rptr. 850].) (5) The difference between the two states — of diminished capacity and unconsciousness — is one of degree only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d 716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal. Rptr. 815, 411 P.2d 911].) (6) Moreover, evidence of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356 [46 Cal. Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v. Mosher, [378] supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.)

The error was prejudicial per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379 at p. 391; (People v. Modesto, supra, 59 Cal.2d 722 at pp. 730-731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting defendant upon a finding of justifiable homicide.^[13] Under these circumstances, it is "reasonably probable" that a result more favorable to him — i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense — would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

The Question of Invited Error

As defendant's point on the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting [379] it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not upon both.^[14]

If the trial court entertained this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550 at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p. 356.) In any event, while the deficient record^[15] does not clearly substantiate counsel's claim that the trial court forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon both defenses, upon its own motion, whether counsel correctly understood the situation or not.

A similar situation occurred, and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham, defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel" (id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4], [51 Cal. Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed [380] complaint on appeal only where "the record indicated a `deliberate' or `expressed' tactical decision by counsel to forego a particular instruction which the court is otherwise obliged to render to the jury." (People v. Graham, supra, at p. 318 (italics in the original).)

The Graham court went on to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause." (People v. Graham, supra, 71 Cal.2d 303 at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver" consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation. On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission." (Id., at pp. 319-320 [italics added].)

The self-defense instructions originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while — and not before — he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at best. As only instructions upon unconsciousness offered a complete defense (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them, is irreconcilable with "deliberate [381] tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal.2d 574 at pp. 580-581 [fn. 4 and cases cited].)

(7) The "withdrawal" of the critical instructions — to the extent that the event appears^[16] — can perhaps be ascribed to "neglect or mistake" (People v. Graham, supra, 71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" (id., at p. 320) on the part of defense counsel. Whatever the reason for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited error" doctrine does not foreclose defendant from asserting his point on the appeal. (Id., at p. 319.) Since we have sustained the point on its merits, the judgment must be reversed.

We also sustain certain other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal, we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count Three of the indictment, and (3) defendant's prior felony conviction.

Grier's Extrajudicial Statement

Henry Grier's eyewitness account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ... sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing [382] these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier by the police on the morning of the shootings, and his answer thereto:

"Q" [By the interrogating police officer] About how old was [Officer Frey's assailant]?

"A. I couldn't say because I only had my lights on, I couldn't — I did get a clear picture, clear view of his face but — because he had his head kind of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look — " (Italics added.)

Arguing to the jury, defense counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument, the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution. According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't get a clear picture, clear view of his face ..." (Italics added.)

The defense immediately moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion. Having then obtained the original October 28 police recording of Grier's statement, the defense again moved to reopen. This time, after hearing a playback of the recording, the court found that Grier had indeed said "didn't" in the context quoted above. The judge again refused to reopen, but stated that some action should be taken to provide the jury with a corrected version of the Grier statement. The court thereupon ordered that a "correction" be made in the written transcript, and that a corrected copy of the document be "sent to the Jury just in an ordinary manner without any comment or instructions." The transcript was sent to the jury with the word "did" corrected to read "didn't," but without explanation or notice of the change.

(8) Defendant contends that the trial court abused its discretion in refusing to reopen the case. The Attorney General's only argument is to the effect that defendant cannot now complain because his attorney approved the procedure followed by the trial court in sending the corrected transcript to the jury. Defense counsel did indicate his approval of the procedure [383] when the trial court proposed it, but this was after defendant's first motion to reopen had been denied and the court had indicated its intention to deny the second. At that point, counsel had the choice of approving the procedure or having no correction sent to the jury at all. Under the circumstances, he cannot be said to have waived the right to challenge the court's denial of his motions to reopen.

(9) The trial court clearly had discretion to order the case reopened (Pen. Code §§ 1093, 1094; People v. Berryman (1936) 6 Cal.2d 331, 338-339 [57 P.2d 136]; People v. Richardson (1961) 192 Cal. App.2d 166, 169 [13 Cal. Rptr. 321]), even after the jury deliberations had begun (People v. Christensen (1890) 85 Cal. 568, 570 [24 P. 888]. See Stoumen v. Munro (1963) 219 Cal. App.2d 302, 319 [33 Cal. Rptr. 305]; Annot., 87 ALR2d 849, 851 et seq.) (10) Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made (see People v. Carter (1957) 48 Cal.2d 737, 757 [312 P.2d 665]), the diligence shown by the moving party in discovering the new evidence (Fernandez v. United States (9th Cir.1964) 329 F.2d 899, 903), the prospect that the jury would accord it undue emphasis (Eason v. United States (9th Cir.1960) 281 F.2d 818, 821-822, and the significance of the evidence. (People v. Carter, supra, at p. 755.)

Reopening — and its conceivably attendant consequences in terms of further proof, argument and instructions — would have been inconvenient because of the stage of the proceedings at which defendant moved, but it was neither impossible nor unreasonable. (See People v. Carter, supra, 48 Cal.2d 737 at p. 757; Witkin, Cal. Criminal Procedure (1963) § 434, pp. 435-436 and cases cited.) Reopening was not precluded by any lack of diligence on the part of the defense,^[17] and the trial court could have minimized the possibility that the jury would overemphasize the newly discovered evidence.

Whether the new evidence — i.e., the single word change required and made in the transcript of Grier's pretrial statement — was vital and material is arguable either way. Still, Grier was the only witness who positively identified defendant as Officer Frey's assailant. (11) Whether he "did" or "didn't" see the assailant's face was material, especially in light of the [384] discrepancies in his separate descriptions of the person he claimed to have seen shooting Officer Frey. The prosecution had vigorously emphasized the word "did" in defending the credibility of Grier's in-court indentification of defendant. The latter was entitled to have the jury consider the possibility, however remote, that someone other than he (e.g., Gene McKinney, whose role in the shooting episode is obscure, under the evidence, to the point of mystery) had engaged in the fatal scuffle with the officer. The jury had indicated its interest in these matters by requesting a copy of the transcript of Grier's pretrial statement. Under all the circumstances, we conclude that the trial court abused its discretion in denying defendant's motions to reopen the case.

The Dell Ross Grand Jury Testimony

Before the grand jury which produced the indictment charging defendant, in count Three, with kidnaping Dell Ross on October 28, 1967, Ross testified in pertinent part as follows: Sitting in his parked automobile near Seventh and Willow Streets on that date, he heard several gunshots. Two men (one of them defendant, whom Ross identified to the grand jury from a photograph) entered his car. Defendant ordered him, at gunpoint, to drive the pair to a specified street corner in Oakland. Ross complied. While in his car, both men made several statements, quoted by Ross to the grand jury, which implicated defendant in the shooting episode and were highly damaging to his defense in the present prosecution.

When called by the People as a trial witness, and upon the advice of counsel (who appeared with him) Ross pleaded self-incrimination and refused to answer any questions concerning the morning of October 28, 1967. At the request of the prosecution and pursuant to Penal Code section 1324, the trial court granted him immunity and ordered him to testify. Although Ross continued to refuse upon the ground of self-incrimination, he soon indicated that he did not remember what happened on October 28 or testifying to the grand jury. Upon this basis, the prosecutor showed him a copy of the transcript of his grand jury testimony and asked whether it refreshed his memory. When Ross said that he could not read, and over defense objections, the prosecutor then read all his grand jury testimony to the trial jury.

The trial court instructed the jury that the grand jury testimony, and the defense tape recording, were admitted for impeachment only and not for the truth of the matters asserted in either. Several trial days later, upon motion by the defense, the trial court ordered stricken from the record "the entire testimony of ... [Dell Ross] ..., and all questions asked of and answers given by said witness, including papers and recordings [385] and all statements heretofore made by any counsel, or by the Court, in connection with said witness"; instructed the jury to disregard such evidence; and entered a verdict of acquittal on the kidnaping charge for the stated reason that "the evidence now before the Court is insufficient to sustain a conviction of such offense."

In light of several considerations (the trial court's order striking the Ross testimony to the grand jury, its admonition to the trial jury to disregard it, its order acquitting defendant of the Ross kidnaping, and the degree of the jury's verdict on the homicide charge), it is questionable whether the reading of the grand jury testimony was prejudicial error. It was, however, error which should not recur if defendant is retried.^[18] (12) Because of Ross's inability or refusal to recall his testimony to the grand jury, the defense had no opportunity to cross-examine him concerning that testimony. The reading thereof to the trial jury, consequently, operated to violate defendant's Sixth Amendment right of confrontation. (U.S. Const., 6th Amend.; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074]; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) (13) Nor can the action be justified as impeachment. A party's right to impeach his own witness (Evid. Code, §§ 785, 780 [subd. (h)], 769, 770) is not available where, as here, the witness has not testified against the impeaching party at all: "there is nothing to counteract," and the prior statement emerges as substantive evidence of the facts asserted in it. (People v. Newson (1951) 37 Cal.2d 34, 41 [230 P.2d 618].)

[386]

The Prior Felony Conviction

As charged in the indictment and found by the jury, defendant was convicted of a felony (assault with a deadly weapon) in 1964. He represented himself at the 1964 trial. The conviction was affirmed by this court in an unpublished decision filed in 1965 (People v. Newton (1965) 1 Crim. 4908 [certified for nonpublication]); the Supreme Court denied defendant's petition for hearing. During jury voir dire in the present prosecution, defendant moved to strike the prior conviction from the indictment, and for a protective order forbidding its "mention" at the murder trial, upon the Sixth Amendment ground that his waiver of counsel in the 1964 proceedings had been ineffective. The trial court read into the record the full appellate court decision in which the prior conviction was affirmed in 1965; stated that the appellate court had therein considered all of defendant's current contentions; and denied his motion without an evidentiary hearing.

(14) Where a prior conviction is constitutionally invalid because the accused was deprived of his Sixth Amendment right to counsel or did not effectively waive it, utilization of the conviction in a subsequent prosecution to support his guilt, enhance his punishment, or impeach his testimonial credibility, is constitutional error. (Burgett v. Texas (1967) 389 U.S. 109, 114-116 [19 L.Ed.2d 319, 324-326, 88 S.Ct. 258]; People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal. Rptr. 457, 430 P.2d 15].) When he raises the issue in the subsequent prosecution by moving to strike the prior or by denying it (upon constitutional grounds in either instance), the trial court must hold a hearing outside the presence of the jury and make a relevant finding based upon evidence there presented. (People v. Coffey, supra, at pp. 217-218.) The required hearing must be conducted even if the issue arises during the trial, so long as the objection is asserted before the case is submitted to the jury. (People v. Curtis (1969) 70 Cal.2d 347, 359-361 [74 Cal. Rptr. 713, 450 P.2d 33].)

The People contend that defendant's motion to strike was invalid on procedural and formal grounds. We need not here set forth the details of the motion as challenged by the Attorney General in this regard; they are intricate, and are unlikely to recur if defendant again mounts a constitutional attack upon the 1964 conviction. It suffices to say that we reject the Attorney General's procedural and formal objections to the motion, and that, fairly read with the declaration by counsel which was filed in support thereof, the motion unmistakably advanced the claim that the 1964 trial court had permitted defendant to represent himself at the assault trial without inquiring into his ability to do so. (15) Recent decisions establish [387] that such inquiry is required before a waiver of counsel can be accepted by a trial court. (E.g., People v. Carter (1967) 66 Cal.2d 666, 672 [58 Cal. Rptr. 614, 427 P.2d 214]; People v. Armstrong (1969) 274 Cal. App.2d 297, 303 [79 Cal. Rptr. 223].) While defendant's motion and its supporting declaration were drafted inartfully and in obvious haste, they presented a reasonably "clear allegation" by defendant "to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented." (Original italics.) (People v. Coffey, supra, 67 Cal.2d 204 at p. 215 [quoting People v. Merriam (1967) 66 Cal.2d 390, 397 (58 Cal. Rptr. 1, 426 P.2d 161)].)

The People also argue that defendant's Sixth Amendment point, as addressed to the 1964 conviction, was resolved against him on the 1965 appeal. We disagree: the 1965 decision noted that he had waived counsel by insisting upon representing himself at the assault trial, but the point now advanced — that his waiver of counsel was ineffective for lack of an appropriate inquiry by the trial court in 1964 — was neither raised nor resolved on the former appeal. (16) As the right to assistance of counsel at the former trial "applies retrospectively without regard to time" (People v. Coffey, supra, 67 Cal.2d 204 at p. 214) for purposes of the present case, the trial court erred in failing to conduct an evidentiary hearing upon defendant's motion to strike. (Id., at pp. 214-218.)

(17) In the motion, defendant also attacked the prior conviction upon the Fifth Amendment ground that the 1964 trial court permitted him to testify (he being unrepresented by counsel) without advising him of his right not to do so. (See People v. Wells (1968) 261 Cal. App.2d 468, 481 [68 Cal. Rptr. 400]; People v. Glaser (1965) 238 Cal. App.2d 819, 828-829 [48 Cal. Rptr. 427].) Because of the inadequacy of defendant's showing, on the motion, that he was unaware of his right not to testify at the 1964 trial (see People v. Glaser, supra, at pp. 832-833), we perceive no error in the trial court's denial of his motion with respect to his Fifth Amendment point. (We do not hold as the law of the case that he is precluded from asserting the point again. The problem may not present itself; a ruling by the trial court on his Sixth Amendment point may render it moot.)

Defendant has made certain other contentions which warrant discussion because of the prospect that his prosecution will continue. First among these are his arguments challenging the validity of his indictment by the grand jury and the manner in which the trial jury was selected. (He raised both questions with pretrial motions, which the trial court denied.)

[388]

The Validity of Defendant's Indictment

(18) Contrary to defendant's first several contentions relative to his indictment by the grand jury, we hold as follows: (1) The laws of this state which permit a prosecutor to proceed against an accused by way of either information or grand jury indictment, at the prosecutor's option (Cal. Const., art. I, § 8; Pen. Code, §§ 682, 737), are constitutional. (People v. Flores (1969) 276 Cal. App.2d 61, 65-66 [81 Cal. Rptr. 197].) (19) (2) Defendant was not, by reason of the grand jury proceedings which produced his indictment, unconstitutionally denied the procedural rights which would have been available to him at a preliminary examination. (People v. Flores, supra.) (20) (3) The California statutes controlling the selection of grand jurors (Pen. Code, § 894 et seq.) are constitutional. (Turner v. Fouche (1970) 396 U.S. 346, 353-355 [24 L.Ed.2d 567, 575-576, 90 S.Ct. 532]; Carter v. Jury Commission (1970) 396 U.S. 320, 329-337 [24 L.Ed.2d 549, 557-561, 90 S.Ct. 518]; Smith v. Texas (1940) 311 U.S. 128, 130-131 [85 L.Ed. 84, 86-87, 61 S.Ct. 164].)

Grand Jury Selection

Defendant next contends that the above-cited grand jury selection statutes, as applied in Alameda County, resulted in unconstitutional discrimination against young persons, low income groups and black persons.^[19] According to the evidence produced upon his pretrial motion in this regard, the membership of the grand jury which indicted him was drawn from among persons who had been nominated to the grand jury by each of the county's 20 superior court judges. (Pen. Code, § 903.4.) The presiding judge of the superior court (for 1967) testified that he had selected his three nominees from among his personal acquaintances. There was no evidence of the selection practices followed by other judges in connection with the 1967, or any other, grand jury.

(21) The constitutional standards controlling the selection of grand jurors are the same as for petit jurors. (Pierre v. Lousiana (1939) 306 U.S. 354, 362 [83 L.Ed. 757, 762, 59 S.Ct. 536].) (22) They must be selected in a manner which does not systematically exclude, or substantially underrepresent, the members of any identifiable group in the community. (Whitus v. Georgia (1967) 385 U.S. 545, 548-552 [17 L.Ed.2d 599, 602-605, 87 S.Ct. 643] Hernandez v. Texas (1954) 347 U.S. 475, 476-478 [389] [98 L.Ed. 866, 869-870, 74 S.Ct. 667]; People v. White (1954) 43 Cal.2d 740, 749-753 [278 P.2d 9]). (23) Such "purposeful discrimination," however, "may not be assumed or merely asserted"; it must be proved (Swain v. Alabama (1965) 380 U.S. 202, 205 [13 L.Ed.2d 759, 764, 85 S.Ct. 824]), and defendant bore the burden of making a prima facie case that it existed here. (Whitus v. Georgia, supra, at p. 550 [17 L.Ed.2d at pp. 603-604].) He presented to the trial court little or no evidence concerning the racial composition of any Alameda County grand jury or grand jury panel. He showed a breakdown of certain grand jurors according to their occupations, but this does not demonstrate "purposeful discrimination" against poor people or anyone else. (See Fay v. New York (1947) 332 U.S. 261, 273-277 [91 L.Ed. 2043, 2052-2054, 67 S.Ct. 1613].) There was some evidence to the effect that all or most of the members of the 1967 grand jury (which indicted him) were middle-aged persons; again, however, systematic exclusion of the young is not shown. Defendant having failed to make a prima facie case that the 1967 grand jury was constitutionally infirm in any respect pertaining to its selection, he cannot challenge the validity of the indictment upon the ground asserted.

Petit Jury Selection

Defendant contends that the trial jury panel, and the jury itself, were unconstitutionally selected. While we need not consider his arguments relating to administrative excuses from jury service, challenges for cause, and peremptory challenges, we discuss those points which will be relevant in the event of retrial. The first is addressed to the fact that the names of the prospective trial jurors were drawn from the latest Alameda County voter registration lists, at random but from no other source.

On defendant's pretrial motion attacking the venire, his witnesses testified that the selection of jurors exclusively from voter lists results in underrepresentation of poor persons and black persons on juries, because such people are less likely to be registered voters. According to defendant's statistics, the voter registration rate in the predominantly black-populated areas of West Oakland, South Oakland and South Berkeley (all of which are in Alameda County) is 64.7 percent, whereas the countywide rate is 82 percent. One of his witnesses testified that black persons constitute about 7.5 percent of jury panels when voter registration lists are the sole source of prospective jurors' names. Black persons constitute 12.4 percent of Alameda County's population.

(24) As registration to vote is not a condition of eligibility for jury service in this state (see Code Civ. Proc., §§ 198, 199), the county's discretion to use voter registration lists as the source of jurors is subject to the constitutional requirement that juries must reasonably reflect a cross-section [390] of the community. (Smith v. Texas, supra, 311 U.S. 128 at p. 130 [85 L.Ed. 84 at p. 86]; People v. White, supra, 43 Cal.2d 740 at p. 749.) (25) While each jury roll or venire need not be a perfect mirror of the community (Swain v. Alabama, supra, 380 U.S. 202 at p. 208 [13 L.Ed.2d 759 at p. 766]; People v. White, supra), any substantial disparity, over a period of time, between a group's percentage thereon and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Turner v. Fouche, supra, 396 U.S. 346 at p. 360 [24 L.Ed.2d 567 at p. 579]; Whitus v. Georgia, supra, 385 U.S. 545 at pp. 550-552 [17 L.Ed.2d 599 at pp. 603-605].) The disparity claimed in the present case, however (7.5 percent versus 12.4 percent) is not so substantial as to produce this result. (Swain v. Alabama, supra, at pp. 205, 209 [13 L.Ed.2d at pp. 764, 766] (10-15 percent vs. 26 percent). Compare Turner v. Fouche, supra (37 percent vs. 60 percent); Sims v. Georgia (1967) 389 U.S. 404, 407 [19 L.Ed.2d 634, 637, 88 S.Ct. 523] (4.7-9.8 percent vs. 24.4 percent); Whitus v. Georgia, supra, 385 U.S. 545, 550-552 [17 L.Ed.2d 599, 603-605] (7.8-9.1 percent vs. 27.1 percent). See Kuhn, Jury Discrimination (1968) 41 So.Cal.L.Rev. 235, 251-257 and data cited passim.)

The record does not sustain defendant's contention that black persons were underrepresented on the trial jury panel; of the 160 prospective jurors examined, about 13 percent were black persons.^[20] He presented no evidence of the economic status of any of the panel members to support his charge that poor persons were excluded from, or substantially underrepresented on, the panel. On the showing made, we cannot conclude that unconstitutional discrimination, on racial or economic grounds, occurred in the selection of prospective jurors.

(26) We also reject defendant's argument that, because of the nature of the case (involving a fatal altercation between a black defendant and white police officers), he was entitled to have at least one resident of West Oakland (described as a "black ghetto") serve on his trial jury.^[21] (27) "Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances [391] of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. (Citation.)" Hoyt v. Florida (1961) 368 U.S. 57, 59 [7 L.Ed.2d 118, 120-121, 82 S.Ct. 159].)

Certain claims of trial error should also be mentioned. (28, 29) Contrary to defendant's contention as to each point, we hold as follows: (1) The trial court did not err in instructing the jury on flight and motive. The evidence supported the instructions given, and defendant's proposed modifications of the standard instructions on these subjects were properly refused because they emphasized specific evidence. (People v. Hughes (1951) 107 Cal. App.2d 487, 494 [237 P.2d 64]; Witkin, Cal. Criminal Procedure, op. cit., supra, § 477, pp. 484-485.) (2) Defendant's requested instruction on unlawful detention was also properly refused. (30) Unlawful detention by a police officer does not justify unlawful resistance thereto. (Pen. Code, § 834a; People v. Curtis (1969) 70 Cal.2d 347, 352 [74 Cal. Rptr. 713, 450 P.2d 33].)

(3) The trial court did not err in excluding the proffered testimony of defense witnesses Burton, Quinones, Daniels, Harris and Brown. (31) Burton's testimony, offered to prove past mistreatment of black persons by Officer Frey (a subject upon which the trial court gave the defense considerable latitude), was not probative on that subject and was cumulative to the testimony of other defense witnesses. (32) Quinones' testimony would have been to the effect that police officers harassed defendant at the hospital after the shootings; that of the other three, that the prosecution had offered to pay for information concerning this case. Neither subject was relevant.

(33) (4) The trial court did not unduly restrict the voir dire of prospective jurors concerning their racial attitudes. The record shows that the defense was given full latitude in asking questions pertaining to possible racial bias and their knowledge and viewpoints on such matters as the "Black Panther Party," fair housing, "black power" and various political and other organizations.

Other points raised on the appeal need not be discussed.

The judgment of conviction is reversed.

Devine, P.J., and Christian, J., concurred.

On June 26, 1970, the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970. McComb, J., was of the opinion that the petition should be granted.

[1] "PIN" means "Police Information Network," a computerized system which stores and reports information concerning outstanding warrants associated with identified motor vehicles.

[2] Although Officer Heanes' testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened, it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated that he fired at defendant's "midsection," and from a kneeling position, before he heard the "other gunshots" mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the "other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself shot again twice, during the episode described. He did not remember these events. and testified that he "blacked out," and had a "lapse of memory," after he was shot in the arm.

[3] Grier expressly testified to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell," and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.

[4] A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.

[5] On diminished capacity, defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised), 310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC; the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions — Criminal) as supplemented through its 1967 cumulative pocket part.

[6] Defendant's formal list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests was shown to have been "Withdrawn."

[7] CALJIC 308-A (Rev.) ("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"), 305-AA (New) and 311-B.

[8] The court gave the two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]); and

"If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." (CALJIC 305.1 [New].)

(We mention in passing that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)

[9] Defendant's testimony suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's) clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e., that Heanes. struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that he shot defendant (in the "midsection") before Officer Frey was shot by anyone.

[10] As was true of Officer Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.

[11] Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: ... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)

[12] CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime...." (Italics added.)

[13] The jurors deliberated for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter, provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual request — which was apparently in writing — does not appear of record, but the trial judge recalled it at a post-judgment hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.

It also bears mentioning that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.

[14] We refer to the court's statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B (on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn, because we are giving 73-B ..."

[15] The record is deficient, of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears, and it should not have occurred in this particular — and highly important — instance. (See Code Civ. Proc., § 269.)

[16] Because the conference in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of record are defense counsel's affirmative — and laconic — answers to the trial court's inquiries during the successive dialogs quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses.

[17] The Attorney General disputes the fact stated here, but he does so within the broader context of defendant's contention, on the appeal, that the prosecution's conduct in connection with Grier and his pretrial statement amounted to suppression of evidence. Defendant's contention involves the progression and effect of several pretrial motions and orders dealing with defense discovery; it was presented to the trial court, which rejected it; and, having examined it on the appeal, we conclude that no error appears in this regard. In all events, the footnoted statement stands.

[18] We have in mind the fact that, while the grand jury testimony of Ross no longer bears upon the kidnaping charge of which defendant was acquitted, it remains relevant to the homicide charge upon which he will presumably be retried.

[19] Defendant is a black person.

[20] Defendant points out that the number of prospective jurors examined does not produce a definitive percentage as stated here, because there were others on the panel; consequently, he argues. the actual percentage of black persons on the full panel cannot be determined. The percentage stated here, however, is the only figure supported by the record he was obligated to make.

[21] One black man, not a resident of West Oakland, served on the jury.

[311] The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.

Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.

ORTH, J., delivered the opinion of the Court. ELDRIDGE, J., filed an opinion concurring in part and dissenting in part at page 354 infra.

Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th [312] counts of a nine count indictment, no. 18666. The 3rd count charged child abuse, presenting that "on or about April 11, 1976,... while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland...." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and wilfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished...."^[1]

On direct appeal the Court of Special Appeals reversed the judgment entered on the child abuse conviction and affirmed the judgment entered on the misprision of felony conviction.^[2] Pope v. State, 38 Md. App. 520, 382 A.2d 880 (1978). We granted Pope's petition and the State's cross-petition for a writ of certiorari. We affirm the judgment of the Court of Special Appeals with respect to the 3rd count, child abuse. We reverse the judgment of the Court of Special Appeals with [313] respect to the 5th count, misprision of felony. We remand to that court with direction to remand to the Circuit Court for Montgomery County for the entry of a judgment of acquittal on the third count and dismissal of the fifth count.

ISSUES FOR DECISION

I. The sufficiency of the evidence to sustain the conviction of Pope of the crime of child abuse as (1) a principal in the first degree, or (2) a principal in the second degree.

II. The status in Maryland of the crime of misprision of felony.

THE EVIDENCE

The evidence adduced at the trial^[3] established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris.^[4] The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about [314] her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope, 38 Md. App. at 531. Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. That evening Pope cleaned and dried the baby and inquired of Melissa about a bad rash he had. Melissa slept in Pope's bedroom. Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep ... I'll be up, I'll just stay up, I'll watch the baby...." She explained in her testimony: "And I don't know why it was just, just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and fixed a bed for it in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up. She could not sleep while Melissa was there.

The next morning, awakened by the crying of the child, Pope fed him. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God.... I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God, looking wild, speaking loudly, preaching and giving orders. Melissa and the baby returned to Pope's home. Melissa put the child in bed with her, but Pope thought it better that the child not remain there. She was afraid Melissa would roll over and "smother it to death." She told Melissa: "I'll just take the baby in [the living room] ... I'll watch it, I'll get up and feed it... I don't mind." The next morning, Sunday, at about 4:30 o'clock, Pope prepared the baby's bottle and fed him. When Melissa got up, Pope suggested that she go back to bed. Melissa behaved [315] normally for awhile. Then her "episodes of `changing to God' became more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of [Pope's] son, and fearful that by breaking in Melissa would frighten him, [Pope] unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa `anointed' [Pope's] son with oil, placing some of the oil in the child's mouth. She subsequently repeated the process with [Pope's] daughter. When dressed, [Pope's] children left the house expeditiously, lingering only long enough to embrace their mother." Pope, 38 Md. App. at 531.

During a lucid period, Melissa prepared to go to church. She got a tub of water to bathe the baby. What next occurred is graphically described in the opinion of the Court of Special Appeals:

"Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to `God.' Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag." Id.

Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you [316] handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the `unbelievable' and `horrible' thing that was happening."

Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened — "I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby...." She locked the door at Angela's direction so Angela's children would stay in the yard with Pope's children. Angela wrapped the child in a towel, raised him over her head and prayed.

Pope, Melissa and Angela left with the child to go to church. At Melissa's request they stopped by her grandfather's house, arriving about 2:00 p.m. Pope told him the child was dead, but he did not believe her because all three were acting so strangely. He refused to take or look at the baby. The three women with the child went to Bel Pre Health Center, picked up another member of the Christian Tabernacle congregation, telling her that "God has a job for you to do," and proceeded to the church. En route, they passed several hospitals, police stations and rescue squads. At the church, the child was given to, or taken by the Reverend Leon Hart, who handed him to Mother Dorothy King for her prayers. She discovered that the baby's body was cool and sent for ambulance assistance. Police and rescue personnel arrived and determined that the child was dead. There was expert medical testimony that the child had died sometime during the period of fifteen minutes to several hours after it was injured. The medical expert expressed no opinion as to whether the child could have been successfully treated if the injury had been reported sooner.

The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."

Pope, Melissa and Angela attended the evening service at the church. Melissa reverted to God during the service and [317] Reverend Hart restrained her and attempted to convince her that she was not Jesus Christ. Melissa refused to go to her grandfather's home and returned home with Pope. The next morning Pope was again interviewed at the police station and wrote a full explanation of what had happened. She later made an oral statement which was recorded.

I

THE CRIME OF CHILD ABUSE

The Statute

The General Assembly first evidenced its concern with the mistreatment of children fifteen years ago when it added § 11A to Art. 27 of the Maryland Code,^[5] later codified as § 35A of that article,^[6] declaring an assault on a child to be a felony. The statute in its entirety provided:

"Any parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary."

The Legislature's increasing interest in child abuse is reflected in the amendment from time to time of the seminal statute.^[7] The result is a comprehensive scheme to fulfill the legislative intent and purpose, expressed in 1973,^[8] as "the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse, by extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing [318] immediate, cooperative efforts by the responsible agencies on behalf of such children." Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 35A. All of these were, of course, imposed over the felonious crime of child abuse. See subsections (a) through (j).

The Nature of Child Abuse

As we have seen, when the crime was first created by the General Assembly it comprised the malicious beating, striking or otherwise mistreating a child to such degree as to require medical treatment. We pointed out in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976), that by the terms of the enactment it did not reach acts "not constituting, in one form or another, an assault on a child." Id. at 423. Acts 1973, ch. 835 repealed the "maliciously beats, strikes or otherwise mistreats" test of child abuse and substituted in its place a new and different measure of the offense. The 1973 amendment added a definition subsection to § 35A. Subsection (b) 7 provided that whenever "abuse" was used in § 35A, it shall mean "any physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts...." Acts 1974, ch. 554 designated this meaning as item (A) of ¶ 7 and expanded the definition of child abuse by adding item (B) so as to include in the offense "any sexual abuse of a child, whether physical injuries are sustained or not." The amendment also added ¶ 8 defining "sexual abuse" to mean "any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on a child...." Acts 1977, ch. 290, substituted "or sexual offense in any degree" for "carnal knowledge" in ¶ 8.^[9]

We considered the scope of item A, subsection (b)7 in Fabritz. Applying the rules of statutory construction, 276 Md. [319] at 421-423, we thought "it evident that the Legislature plainly intended to broaden the area of proscribed conduct punishable in child abuse cases." Id. at 423-424. We said:

"Its use in the amended version of § 35A of the comprehensive phraseology `who causes abuse to' a minor child, coupled with its broad two-pronged definition of the term `abuse,' supports the view that the Legislature, by repealing the narrow measure of criminality in child abuse cases then provided in § 35A, and redefining the offense, undertook to effect a significant change of substance in the scope of the statute's prohibitions. In making it an offense for a person having custody of a minor child to `cause' the child to suffer a `physical injury,' the Legislature did not require that the injury result from a physical assault upon the child or from any physical force initially applied by the accused individual; it provided instead, in a more encompassing manner, that the offense was committed if physical injury to the child resulted either from a course of conduct constituting `cruel or inhumane treatment' or by `malicious act or acts.'" Id. at 424.

We found that the failure of the mother to seek or obtain any medical assistance for her child, although the need therefor was obviously compelling and urgent, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child by reason of the original assault by another. The act of omission by the mother "constituted a cause of the further progression and worsening of the injuries which led to [the child's] death; and that in these circumstances [the mother's] treatment of [the child] was `cruel or inhumane' within the meaning of the statute and as those terms are commonly understood." Id. at 425-426. We therefore vacated the judgment of the Court of Special Appeals, which in Fabritz v. State, 24 Md. App. 708, 332 A.2d 324 (1975), had [320] reversed the judgment of the trial court entered upon the conviction of the mother of child abuse.^[10]

Responsibility for Abuse of a Child

In Fabritz we went no farther than to determine that the Legislature intended that the "cause" of an injury may include an act of omission so as to constitute cruel or inhumane treatment, in that case the failure of the mother to seek or obtain medical assistance for her child who had been abused by another. Fabritz did not go to the class of persons to whom the statutory proscription applies, as the accused there was a "parent," the victim's mother, expressly designated in the statute.

[321] We have seen that the statute as originally enacted concerned "[a]ny parent, adoptive parent or other person, who has the permanent or temporary care or custody of a minor child...." Acts 1963, ch. 743. This has been once amended to bring within the ambit of the statute any person who has "responsibility for the supervision of a minor child." Acts 1966, ch. 221. Thus, since 1 June 1966,

"[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years[^[11]] who causes abuse to such minor child shall be guilty of a felony...." § 35A(a).

Persons subject to the statute are designated in those terms also in subsection (b) 7 (A) defining abuse and in subsection (b)8 defining sexual abuse.

In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we discussed the class of persons to whom § 35A applies, in rejecting the contention that the statute was vague and therefore constitutionally defective for the reason that it failed to define adequately that class. Bowers urged that the statute was too indefinite to inform a person who is not a parent or adoptive parent of a child whether he comes within the ambit of the statute. He argued that no one in such position is capable of ascertaining whether the statute is aimed only at persons who have been awarded custody by judicial decree or includes also those who may simply be caring for a child in place of the parent. We were of the view that the General Assembly intended that the statute apply to persons who stand in loco parentis to a child. We said: "Had the Legislature wished to narrow application of the child abuse law to those who had been awarded custody or control by court order, it could readily have done so in explicit language to that end." Id. at 130. We observed that Bowers' "own testimony amply established that he had assumed `the care or [322] custody or responsibility for the supervision' of his step-daughter, and thus stood in loco parentis with respect to her." Id.

Bowers' challenge centered on the "temporary care or custody" provision of the statute. It does not follow from our holding that "permanent or temporary care or custody" is synonymous with "responsibility for the supervision of." Such was clearly not the legislative intent, because, as we have seen, the latter provision was added by amendment three years after the former had been written into the law. There would have been no need to do so had the Legislature deemed the two provisions to have the same meaning.

The child abuse statute speaks in terms of a person who "has" responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what "responsibility" and "supervision" encompass. A doubt or ambiguity exists as to the exact reach of the statute's provision with respect to "has responsibility for the supervision of," justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature. See Fabritz at 423; Clerk v. Chesapeake Beach Park, 251 Md. 657, 663-664, 248 A.2d 479 (1968); Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555 (1966). Bowers equates "permanent or temporary care or custody" with "in loco parentis," but "responsibility for the supervision of" is not bound by certain of the strictures required for one to stand in place of or instead of the parent. A person in loco parentis is "charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary (4th ed. 1951). "A person in loco parentis to a child is one who means to put himself in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child. Or, as defined by Sir Wm. Grant, Master of the Rolls, a person in loco parentis is one, `assuming the parental character and discharging parental duties.' Weatherby v. Dixon, 19 Ves. 412.... There must be some indication, in some form, of an intention to establish it. It is a question of intention." Von der Horst v. Von der Horst, 88 Md. 127, 130-131, 41 A. 124 (1898).

[323] "The term `in loco parentis,' according to its generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties. Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850 (1947).

"This relationship involves more than a duty to aid and assist, more than a feeling of kindness, affection or generosity. It arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child." Fuller v. Fuller, 247 A.2d 767 (D.C. 1968), appeal denied, 418 F.2d 1189 (1969).

A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child. "Responsibility" in its common and generally accepted meaning denotes "accountability," and "supervision" emphasizes broad authority to oversee with the powers of direction and decision. See American Heritage Dictionary of the English Language (1969); Webster's Third New International Dictionary (1968). As in the case of care or custody of a minor child under the child abuse law, a judicial decree is not necessary to obtain responsibility for the supervision of a minor child under that statute. Had the Legislature wished to narrow application of that law to those who had been charged with responsibility for the supervision of a child by court order, it could readily have done so in explicit language to that end. See Bowers, 283 Md. at 130. Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose [324] responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. So it is that a baby sitter temporarily has responsibility for the supervision of a child; the parents grant the responsibility for the period they are not at home, and the sitter accepts it. And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties. On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.

Under the present state of our law, a person has no legal obligation to care for or look after the welfare of a stranger, adult or child.

"Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself.... A moral duty to take affirmative action is not enough to impose a legal duty to do so." W. LaFave & A. Scott, Criminal Law 183 (1972).

See Clark & Marshall, A Treatise on the Law of Crimes § 10.02 (7th ed. 1967). The legal position is that "the need of one and the opportunity of another to be of assistance are not alone sufficient to give rise to a legal duty to take positive action." R. Perkins, Criminal Law 594-595 (2d ed. 1969). Ordinarily, a person may stand by with impunity and watch another being murdered, raped, robbed, assaulted or otherwise unlawfully harmed. "He need not shout a warning to a blind man headed for a precipice or to an absentminded one walking into a gunpowder room with a lighted candle in [325] hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning, or the whistle of an approaching train is heard in the distance." LaFave & Scott at 183. The General Assembly has enacted two "Good Samaritan" statutes which afford protection to one who assists another in certain circumstances. Those statutes, however, impose no requirement that assistance be rendered.^[12]

In the face of this status of the law we cannot reasonably conclude that the Legislature, in bringing a person responsible for the supervision of a child within the ambit of the child abuse law, intended that such responsibility attach without the consent criteria we have set out. Were it otherwise, the consequences would go far beyond the legislative intent. For example, a person taking a lost child into his home to attempt to find its parents could be said to be responsible for that child's supervision. Or a person who allows his neighbor's children to play in his yard, keeping a watchful eye on their activities to prevent them from falling into harm, could be held responsible for the children's supervision. Or a person performing functions of a maternal nature from concern for the welfare, comfort or health of a child, or protecting it from danger because of a sense of moral obligation, may come within the reach of the act. In none of these situations would there be an intent to grant or assume the responsibility contemplated by the child abuse statute, and it would be incongruous indeed to subject such persons to possible criminal prosecution.

[326]

The Sufficiency of the Evidence

The trial court found Pope guilty of the crime of child abuse as a principal in the first degree, and alternatively, as a principal in the second degree. A principal in the first degree is the one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission. See Camphor v. State, 233 Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A.2d 171 (1961); Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284 (1967); 4 W. Blackstone, Commentaries [*]34; Clark & Marshall, A Treatise on the Law of Crimes §§ 8.01-8.02 (7th ed. 1967); L. Hochheimer, Crimes and Criminal Procedure §§ 31-32 (1st ed. 1897); R. Perkins, Criminal Law 656 and 658 (2d ed. 1969).^[13]

In convicting Pope, the trial court was "satisfied beyond a reasonable doubt that under the doctrine of [Fabritz] ..., [she] is a principal [in the first degree] and is guilty of child abuse." It further held, however: "If this interpretation of Fabritz is in error, then [Pope] is guilty as a principal in the second degree." On direct appeal, the Court of Special [327] Appeals applied Maryland Rule 1086 and set aside the judgment. The rule provides that when a criminal case is tried without the intervention of a jury, the Court of Special Appeals shall review both the law and the evidence but "the judgment of the [trial] court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." The appellate court's function "is merely to decide whether there was sufficient evidence, or proper inferences from the evidence, from which the trier of fact could properly draw the conclusion of the [accused's] guilt, beyond a reasonable doubt." Brooks v. State, 277 Md. 155, 161-162, 353 A.2d 217 (1976), and cases therein cited. The trial court, as the trier of facts, is not only the judge of the witness's credibility, but is also the judge of the weight to be attached to the evidence. Id. The Court of Special Appeals determined that the evidence was not legally sufficient to sustain the conviction of Pope either as a principal in the first degree or a principal in the second degree. The evidence was deficient with regard to her being a principal in the first degree in that it was not sufficient for the trier of fact to find beyond a reasonable doubt that she was within the class of persons subject to the prohibitions of the child abuse statute. Thus, the teaching of Fabritz regarding "causing abuse" was in no event applicable. Pope v. State, 38 Md. App. at 538. It was deficient with regard to her being a principal in the second degree because, despite her presence during the commission of the felony, it was not sufficient for the trier of fact to conclude that she aided and abetted the actual perpetrator. Therefore, the judgment of the trial court on the evidence was clearly erroneous and had to be set aside. Id. at 539-541.

As did the Court of Special Appeals, we find evidentiary insufficiency with respect to the conviction of Pope of child abuse, both as a principal in the first degree and as a principal in the second degree, so that the judgment of the trial court on the evidence was clearly erroneous. We, therefore, affirm the judgment of the Court of Special Appeals. We explain why we find that the evidence was legally insufficient.

[328]

Principal in the First Degree

As we have indicated, a person may be convicted of the felony of child abuse created by § 35A as a principal in the first degree upon evidence legally sufficient to establish that the person

(1) was

(a) the parent of, or

(b) the adoptive parent of, or

(c) in loco parentis to, or

(d) responsible for the supervision of

a minor child under the age of eighteen years, AND

(2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of

(a) physical injury or injuries sustained by the child as the result of

i) cruel or inhumane treatment, or

ii) malicious act or acts by such person, or

(b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.

Under the teaching of Fabritz, Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefor was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. See Fabritz, 276 Md. at 425-426. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear [329] that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child as that status was construed in Bowers v. State, supra, so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.

The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present.^[14] Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." Pope, 38 Md. App. at 538. It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take [330] affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.

The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." Pope, 38 Md. App. at 532. The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." Pope, 38 Md. App. at 538. We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus it is that the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.

The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if [331] that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.^[15]

Principal in the Second Degree

Pope was actually present when the felony was committed, but, we have determined, she was not a perpetrating actor. She would be a principal in the second degree if she aided or abetted in the commission of the crime. The principal in the second degree differs from the principal in the first degree in that he does not do the deed himself or through an innocent agent but in some way participates in the commission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator.^[16] R. Perkins, Criminal Law 658-659 (2d ed. 1969); Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Unless he contributed actual aid it is necessary that his approval should be manifested by some word or act in such a way that it operated on the mind of the perpetrator. Even the secret acquiescence or approval of the bystander is not sufficient to taint him with the guilt of the crime. "Counsel, command or encouragement may be in the form of words or gestures. Such a purpose `may be manifested by acts, words, signs, motions, or any conduct [332] which unmistakably evinces a design to encourage, incite, or approve of the crime.' Promises or threats are very effective for this purpose, but much less will meet the legal requirement, as where a bystander merely emboldened the perpetrator to kill the deceased.... One may also encourage a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary, provided the latter is aware of this purpose. Guilt or innocence of the abettor ... is not determined by the quantum of his advice or encouragement. If it is rendered to induce another to commit the crime and actually has this effect, no more is required." Perkins at 659. "To be guilty as a principal in the second degree, a criminal intent is necessary." Clark & Marshall § 8.02. "Aid or encouragement to another who is actually perpetrating a felony will not make the aider or encourager guilty of the crime if it is rendered without mens rea. It is without mens rea if the giver does not know or have reason to know of the criminal intention of the other.... In general it is the abettor's state of mind rather than the state of mind of the perpetrator which determines the abettor's guilt or innocence.... `[I]ntention' includes not only the purpose in mind but also such results as are known to be substantially certain to follow." Perkins at 662-663.

When the evidence here is viewed in the light of these criteria, it is patent that it was not legally sufficient to prove that Pope was a principal in the second degree. She neither actually aided the mother in the acts of abuse nor did she counsel, command or encourage her. The Court of Special Appeals pointed out the facts relied on by the trial court — that the events took place in Pope's home, that Pope responded to the commands of the mother, namely that she looked when told to look and came when called, that she voluntarily opened the door to her son's room so Melissa could reach him, and that she failed to interfere or question the mother's activity, even when the mother appeared rational — were simply not enough to meet the test. Pope, 38 Md. App. at 538-541.

The State concludes the argument in its brief:

"As is obvious from the evidence presented in this [333] case, [Pope] witnessed a terrible event. She stood by while Melissa Norris killed her three-month old son. [Pope's] conduct during the beating ... should be held to be culpable."

The evidence certainly showed that Pope "witnessed a terrible event" and that she "stood by" while the mother killed the child. But the culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred, intensified by the fact that the mother, who actually beat the child to death, was held to be not responsible for her criminal acts. But it is the law, not indignation, which governs. The law requires that Pope's conviction of the felony of child abuse be set aside as clearly erroneous due to evidentiary insufficiency.

II

THE CRIME OF MISPRISION OF FELONY

As we have indicated, a person may be convicted of a felony upon proof establishing that he committed the offense as a perpetrating actor (principal in the first degree), or that, being actually or constructively present, he did not himself commit the offense but aided and abetted in the commission of it (principal in the second degree). "`If he be present,' said Sir Matthew Hale, `and not aiding or abetting to the felony, he is neither principal nor accessory. If A and B be fighting and C, a man of full age, comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide, as principal in the second degree, but is a misprision, for which he shall be fined, unless he use means to apprehend the felon.'"^[17] In the case before us, both the [334] trial court and the Court of Special Appeals believed that the misdemeanor of misprision of felony exists in Maryland today. The Court of Special Appeals expressly held "that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights.^[18] It rejected the contention that the crime "has become obsolete or abandoned by disuse" as "without merit." Pope, 38 Md. App. at 527.^[19]

There is no Maryland legislative enactment which is declarative of the common law crime of misprision of felony or which may be deemed to have created a comparable offense. Therefore, if misprision of felony is a crime in this State, it is only because it was part of the common law of England to which the inhabitants of Maryland were constitutionally entitled and has survived to the present time.

We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. In determining the question, we look first to what misprision of felony is. According to Blackstone, the crime at common law consisted merely in the "concealment of a felony which a man knows, but never assented to; for if he assented this makes him either principal or accessory." 4 W. Blackstone, Commentaries [*]121. See Clark & Marshall, A Treatise on the Law of Crimes § 8.14 (7th ed. 1967); R. Perkins, Criminal Law 512 (2d ed. 1969); L. [335] Hochheimer, Crimes and Criminal Procedure § 39 (1st ed. 1897).

"[T]here is reason to believe that misprision of felony as defined by Blackstone is merely one phase of the system of communal responsibility for the apprehension of criminals which received its original impetus from William I, under pressure of the need to protect the invading Normans in hostile country, and which endured up to the Seventeenth Century in England. In order to secure vigilant prosecution of criminal conduct, the vill or hundred in which such conduct occurred was subject to fine, as was the tithing to which the criminal belonged, and every person who knew of the felony and failed to make report thereof was subject to punishment for misprision of felony. Compulsory membership in the tithing group, the obligation to pursue criminals when the hue and cry was raised, broad powers of private arrest, and the periodic visitations of the General Eyre for the purpose of penalizing laxity in regard to crime, are all suggestive of the administrative background against which misprision of felony developed. With the appearance of specialized and paid law enforcement officers, such as constables and justices of the peace in the Seventeenth Century, there was a movement away from strict communal responsibility, and a growing tendency to rely on professional police." 8 U. Chi. L. Rev. 338, 340-341 (1941) (footnotes omitted).

Glazebrook, Misprision of Felony — Shadow or Phantom?, 8 Am. J. of Legal History 189 and 283 (1964) cites eminent authority that in England the offense fell "into desuetude." Id. at 300. According to Glazebrook, there was no "reported decision during the four hundred years since the offence first crept into a book," and no book before J. Chitty, A Practical Treatise on the Criminal Law (2d ed., London 1826) contained "a precedent of an indictment for misprision of felony." Id. In any event, if the crime had died, it was resurrected by the [336] House of Lords in H.L. Sykes v. Director of Public Prosecution, [1961] 3 All E.R. 33. Lord Denning stated that "it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete."^[20] Id. at 40. Sykes acknowledged only two necessary elements, knowledge and concealment. "[M]isprision requires nothing active. The failure or refusal to disclose the felony is enough." Id. at 41. This followed the Blackstone definition.

The "revival" in England of the crime of misprision of felony was not generally welcomed. "Resistance to the crime culminated in the Seventh Report of the Criminal Law Revision Committee which recommended the abolition of the crime of misprision by eliminating all distinctions between felonies and misdemeanors. Misprision was replaced in the report by a new crime of withholding information with regard to certain offenses for a consideration other than restitution. [An agreement not to prosecute a felon in consideration of the return or compensation for goods stolen constitutes the common law offense of compounding a felony.] The Criminal Law Act of 1967 [c. 58 §§ 1 and 5] adopted these two recommendations and has been interpreted as eliminating the crime of misprision of felony in England." Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100-1101 (1974). See W. Wade and B. Lilliwhite, Annual Survey of Commonwealth Law 179 (1965); 10 Halsbury's Law of England ¶ 1201 (Supp. 1978).

The American experience paralleled that of England; the common law offense was simply not used. The status of the crime in the United States was summed up in Glazebrook, [337] How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307, n. 51 (1962):

"No court in the United States has been prepared to adopt the English doctrine in its simplicity, and hold that a mere failure to disclose knowledge of a felony is itself an offence: State v. Hann 40 N.J.L. 288 (1878) often cited as a solitary exception (e.g. (1945) 32 Va.L.R. 172) was a decision on a statutory, not the common law offence. In several states an attempt has been made to establish an offence intermediate between a simple concealment and that of the accessory after: e.g., State v. Wilson 80 Vt. 249: 67 Atl. 533 (1907); State v. Biddle 2 Harr (Del.) 401; 124 Atl. 804 (1923);[^[21]] Carpenter v. State 62 Ark. 286; 36 S.W. 900 (1896); Commonwealth v. Lopes (Mass.) 61 N.E. (2d) 849 (1945); State v. Graham 100 La. 669 (1938): `... in the modern acceptation of the term, misprision of felony is almost if not exactly the same as that of an accessory after the fact' (p. 680). The utility of such an offence has not, however, been demonstrated: `... perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the U.S.' — 2 McClain Criminal Law, s. 938, cited at (1953) 6 S.Car.L.Q. 91. In Michigan, where the constitution incorporates the common law of crimes, the Supreme Court held that this does not extend to misprision of felony since it is `wholly unsuited to American criminal law and procedure as used in this State'; State v. Lefkovitz 294 Mich. 263, 293 N.W. 642 (1940); cf. U.S. v. Worcester 190 F. Supp. 565-566 (1960). And in interpreting the Federal statute (1 Stat. 113, s. 6) [18 [338] U.S.C. § 4 (1976)] which provides that `whoever having knowledge of the actual commission, of a felony cognizable by a court of the United States conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. shall be fined not more than $500 or imprisoned not more than three years or both,' it has been held that there must be some affirmative act of concealment, for instance the suppression of evidence, the harbouring of the criminal or the intimidation of witnesses, as well as the failure to disclose, for otherwise `the words conceals and would be effectively excised from the statute.' This interpretation was necessary to rescue the statute from an `intolerable oppressiveness,' for while federal statutes were few when it was enacted in 1790, the great increase in their number would make it unenforceable today if any other were adopted: Bratton v. U.S. 73 F. (2d) 795 [10th cir.] (1934); followed Neal v. U.S. 102 F. (2d) 643 (1939). [See also United States v. Farrer, 38 F.2d 515 (D. Mass.), aff'd, 281 U.S. 624 (1930).] This policy appears to have been successful. In 1956 the Fifth Circuit Court of Appeals noticed that `the annotations indicate no conviction for misprision [under the Federal statute] affirmed': Miller v. U.S., 230 F. (2d) 486. Cf. Bratton v. U.S.: `s. 146 was enacted April 30, 1790 ... and as far as the researches of court and counsel disclose, has been before the courts but twice in the 144 years of its life' (p. 797)."

Perkins in the second edition (1969) of his Criminal Law states that "there seems to be no such offense as misprision of felony in most of the states." At 516. No such offense is included in the Model Penal Code (U.L.A.).^[22] Four years ago, Florida followed Michigan's view announced in Lefkovitz, [339] supra, that misprision of felony was wholly unsuited to American criminal law. Holland v. State, 302 So.2d 806 (Fla. App. 1974). Cf. Mangeris v. Gordon, Nev., 580 P.2d 481, 483-484 (1978). Compare State v. Flynn, 100 R.I. 520, 217 A.2d 432 (1966), stating that the common law crime of misprision of felony was an indictable offense under the constitution and laws of Rhode Island.

A few states have enacted legislation creating a crime of misprision of felony substantially similar to the common law offense as defined in Sykes. See N.J.S.A. § 2A:97-2 (N.J. 1969); Ohio Rev. Code § 2921.22 (Spec. Supp. 1973); Wash. Rev. Code § 9.69.100 (1976). Two states had such statutes, see Me. Rev. Stat. title 17, § 902 (1964) and La. Rev.Stat. § 856 (1870), which were later repealed.

Maryland has been in line with the practically universal view of the other states. We find no case prior to the case sub judice in which a conviction of misprision of felony has reached an appellate court of this State and, insofar as can be ascertained from appellate dockets, there is only one other, State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978), see note 19, supra, in which the crime was charged. It is true, as observed by the trial court in the case at hand, that "[a] dearth of appellate cases is not proof that the crime is not charged at trial level," but in view of the numerous appeals in criminal causes spawned by present day procedures and rights afforded an accused, it is remarkable indeed that, if convictions upon charge of the crime have occurred, the present case was the first in which an appeal was filed. We think that it is a fair inference that the crime has been seldom charged, and, if charged, has resulted in very few, if any convictions. Furthermore, we observe that misprision of felony was not proposed as an offense by Maryland's Commission on Criminal Law.^[23]

As it seems that misprision of felony has been virtually unused in Maryland since the Revolution gave birth to the [340] United States, our inquiry turns to the effect of non-use of a common law crime. Early on, in State v. Buchanan, 5 H. & J. 317, (1821), Buchanan, J. for the Court announced that no part of the common law of England to which the inhabitants of Maryland were constitutionally entitled should be excluded merely because it had not been introduced and used in the courts here. Id. at 358. See McGraw v. State, 234 Md. 273, 275-276, 199 A.2d 229, cert. denied, 379 U.S. 862 (1964). Judge Buchanan explained:

"[U]nlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for conspiracy, no argument can be drawn from the non-user for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offenses, and consequently no judicial adoption of either of these branches of the common law, could it therefore be contended, that there was now no law in the State for the punishment of such offenses?" 5 H. & J. at 358.

This principle was affirmed by us, implicitly at least, in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) when we "recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use." Pope, 38 Md. App. at 527. It does not follow, however, that because a common law crime does not become obsolete from mere non-use that it will always be viable. The opinion of the Court in Buchanan asserted that the provision in Art. 5 of the Declaration of Rights regarding entitlement to the common law of England without any restrictive words being used, had reference "to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it [341] as are inconsistent with the spirit of that instrument, and the nature of our new political institutions." 5 H. & J. at 358 (emphasis added). We have repeated that statement on a number of occasions, Dashiell v. Attorney General, 5 H. & J. 392, 401 (1822); State v. Bank of Maryland, 6 G. & J. 205, 226 (1834); Lickle v. Boone, 187 Md. 579, 582, 51 A.2d 162 (1947); McGraw v. State, supra, 234 Md. at 275-276; Gladden v. State, 273 Md. 383, 389, 330 A.2d 176 (1974). We put it this way in Denison v. Denison, 35 Md. 361, 378 (1872):

"It is true the common law of England has been adopted by the people of this State, but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."

What this means is that the common law is subject to change. This is clearly apparent from its derivation and its very nature:

"The common law of England is derived from immemorial usage and custom, originating from Acts of Parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the Courts of justice of England." Buchanan, 5 H. & J. at 365 (opinion of Chase, C.J.).

It may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. See State v. Canova, 278 Md. 483, 486, 365 A.2d 988 (1976); Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934); Harrison v. State, 22 Md. 468, 487-488 (1864); Coomes v. Clements, 4 H. & J. 480, 481. It may also be changed by judicial decision. Chase, C.J., in his opinion in Buchanan, observed: "Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the courts of [342] justice, and is to be decided by them." 5 H. & J. at 365-366. He gave this rationale:

"The common law, like our acts of assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the general assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state,...." Id. at 366.^[24]

We said in Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36 (1950) that "[t]his interpretation has been continuously adopted in this State, and was reaffirmed in the case of Price v. Hitaffer, 164 Md. 505, 510, 165 A. 470 [1933]." We asserted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106 (1951): "We have frequently held that it is our duty to determine the common law as it exists in this state...."^[25] The doctrine of stare decisis does not preclude the exercise of this duty. We declared in White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966): "The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Accord, Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644, 308 A.2d 679 (1973).

Parts of the common law have been found by judicial mandate to be inapplicable or obsolete in other states. For example, Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 [343] (N.M. App.), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973) found that "liability free intentional injury to one's spouse does not reflect the circumstances in New Mexico." Swartz v. United States Steel, 293 Ala. 493, 304 So.2d 881, 885 (1974) held that the common law rule that a wife has no cause of action for loss of her consortium is inconsistent with the institutions of Alabama. Morganthaler v. First Atlantic National Bank, 80 So.2d 446 (Fla. 1955) rejected the English rule that a legatee may elect to receive cash when a testator directs his executor to purchase an annuity because it "dethrones a principle [that the intent of the testator controls] which is sacred to our way of life and fundamental in our concepts of right and justice." Id. at 452.

In exercising our duty to determine whether a common law crime presently exists in this State, mere non-use is not sufficient, as we have indicated, to conclude that the offense has become obsolete. But non-use, we believe, is not without significance. When an offense has lain virtually dormant for over two hundred years, it is difficult to argue that the preservation of society and the maintenance of law and order demand recognition of it. See Glazebrook, How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307-311 (1962). Perkins points out:

"The notion that misprision is needed, to prevent one who knows about another's felony from intentionally misleading investigating officers, is unfounded. If, when being questioned by officers who are investigating a felony, one who knows the facts intentionally misleads the officers by false statements and thereby `covers up' for the felon, he thereby makes himself an accessory to that felony after the fact. If he impedes the investigation by falsely saying he does not know about it, or by refusing to talk, he should be held to be guilty of obstructing justice. There is a wide difference between a mere failure to hunt up an officer and tell about a felony, on the one hand, and a refusal to cooperate with an investigating officer, on the other." R. Perkins, Criminal Law 517 (2d ed. 1969).

[344] Even more relevant, however, to a consideration of whether a common law crime is applicable as compatible with our local circumstances and situation and our general codes of law and jurisprudence is the nature of the crime. The reason for the failure of common law misprision of felony to survive in the United States was well expressed by Chief Justice Marshall over a hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-576 (1822) and thereafter noted by many commentators, text book authors and other authorities:

"It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."

In England, according to Glazebrook in his critical consideration of Sykes v. Director of Public Prosecutions, supra, in 25 Mod. L. Rev. 301, the Criminal Law Commissioners in their Fifth Report in 1840 repeated and elaborated this criticism and observed:

"`The necessity of making such disclosures extends perhaps with greater force to the knowledge of a meditated crime, the perpetration of which may, by means of such disclosure, be prevented, than it does to the knowledge of one already committed.'" Id. at 301, citing, n. 3, "Parl. Pap. (1840) xx, p. 32; quoted, Williams, The Criminal Law: The General Part (2nd ed., London 1961), p. 423."

Glazebrook opined that "[f]or more than a century misprision of felony has been an embarrassment to common lawyers," and feared that the decisions and speeches in the House of Lords in Sykes "afford only increased cause for this embarrassment." Id. at 301. The Court of Special Appeals relied on Sykes in holding that misprision of felony, as Sykes found it existed at common law, was currently an indictable crime in Maryland.^[26] Glazebrook ably refuted Sykes, and we borrow extensively from him in the discussion which follows.

[345] Misprision of felony at common law is an impractically wide crime, a long-standing criticism which remains unanswered in Sykes. It has an undesirable and indiscriminating width:

"The real harshness lies in the fact that the duty to disclose arises when a person acquires knowledge of an offence, and this he may do quite involuntarily. A says to B: `Did you know that X stole a book from the library last week?' adding appropriate circumstantial details; or X says to B: `I stole some money yesterday; will you help me to repay it?' B is a friend of X; he wished to know nothing of X's misdeeds; and yet he is to be a criminal if he does not betray him. It is, furthermore, particularly difficult to defend a law which indiscriminately adds to the injuries of the victim of a crime the penalties of the criminal law should he or she wish to forgive and forget." 25 Mod. L. Rev. at 311.

Misprision differs from almost all other common law offenses of omission:

"[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge — knowledge possessed accidentally and undesired — knowledge which may indeed have been acquired through some malevolent person." Id.

Glazebrook observes that although "[t]here may be crimes where the protection of the public requires that each offender be brought to justice however reluctant his victims, his friends, or those who have him in their care, may be to do so, ... the line which separates them from all other offences is not the line which separates felonies from misdemeanors." Id. [346] at 312. This is particularly true with respect to Maryland where the distinction between felony and misdemeanor is a hodgepodge, following neither rhyme nor reason.

Under Sykes, no active step need be taken to conceal the felony (it is only thus that it remains quite distinct from the crime of accessory after the fact), and the concealment need bring no benefit to the accused.^[27] But three fundamental questions remained: when does the duty to reveal a felony arise; how is that duty discharged; and does a relationship with the felon prevent the duty arising?^[28]

It seems that the duty arises when "a man knows" of the commission of a felony. When, then, can a man, be said to know and what is it that he must know? Lord Goddard held that there must be disclosure when the knowledge a man has "is so definite that it ought to be disclosed. A man is neither bound nor would he be wise to disclose rumours or mere gossip, but, if facts are within his knowledge that would materially assist in the detection and arrest of a felon, he must disclose them as it is a duty he owes to the state." Sykes at 46. Lord Goddard left the matter to the jury as a question of fact. Glazebrook suggests that "unless the jury is to be entirely uncontrolled, it has to be told how precise and certain the accused's knowledge must have been before he can be convicted." 25 Mod. L. Rev. at 313. Is the duty to be confined to felonies committed in the presence of the accused, and, if not, is hearsay sufficient? Should the felon's own admission, standing alone, be enough? Knowledge of the commission of a crime is an ingredient of the offenses of accessory after the fact and receiving stolen goods, but, unlike misprision, they require a positive act. It is reasonable, in such circumstance, to require a person who has reason to believe something is [347] wrong to inquire further before embarking on some course of conduct, and to hold that he fails to do so at his peril. "If this rule is applied to misprision, two duties are imposed: a duty to disclose knowledge of a felony, and a duty also to make inquiries to resolve a suspicion concerning the commission of a felony." Id. To paraphrase Glazebrook, must the inhabitants of Maryland become detectives as well as informers?

Sykes fails to provide a working rule for what the accused must know. There was a direct conflict between Lord Denning and Lord Morton into which their brethren did not enter. Discussing knowledge, Lord Denning said:

"The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanour — many a lawyer has to look in the books for the purpose...." Sykes at 41.

Glazebrook comments: "This leaves it largely a matter of chance whether misprision is committed or not." 25 Mod. L. Rev. at 314. That is, on the one hand, it must have been a felony of which the accused knew, but on the other hand, he need not know whether the crime was a felony or a misdemeanor. According to Lord Denning, it would be enough that the accused knew that a serious offense had been committed if it turns out to be a felony — "a lawyer on turning up the books sees it is a felony...."

"This requirement that it must be a serious offence disposes of many of the supposed absurdities, such [348] as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police." Sykes at 42.

This rationale was based on the view that what distinguishes a felony from a misdemeanor is that a felony is a serious offense, "an offence of an `aggravated complexion'.... Felonies are the serious offences. Misdemeanours are the less serious." Id. This introduced a limitation Lord Morton was not willing to accept. Id. at 46-47. In any event, the limitation added the further uncertainty of a trier of fact's view of the gravity of the crime to be reported. 25 Mod. L. Rev. at 314. And, we observe, the foundation for the limitation is weak indeed when considered in light of the categories of felonies and misdemeanors adopted in this State. Sykes avoids what account is to be taken of excuses offered by an apparent felon. For example, "[i]n cases of larceny, may the citizen be satisfied by any claim of right that is made, or must it be weighed, and where suspicion remains this communicated to the police? ... The [Sykes] recognition of misprision means, therefore, the imposition not of a duty to disclose knowledge of the commission of a felony, but of a duty to disclose suspicions of the commission of a felony...." Id. at 314-315. There are no criteria for determining which suspicions are to give rise to a duty, and so to criminal liability.

When the duty to disclose has arisen, it is not clear how it is discharged. It would be logical that once the authorities are in possession of all the information concerning a felony, a citizen's duty to disclose his own knowledge ceases. So there is an added element of chance — "the chance that the police already know." Id. at 315. Lord Denning saw the duty as requiring a citizen "to disclose to proper authority all material facts known to him relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must [349] tell the name of the man who did it, if he knows it;[^[29]] the place, and so forth. All material facts known to him.... If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision." Sykes at 42. This was not sufficient for Lord Goddard. He thought that "facts ... within his knowledge that would materially assist in the detection and arrest of a felon" must be disclosed as a duty owed to the State. Id. at 46. "Thus if a man disclosed all he knew about the commission of a felony and yet did not disclose the whereabouts of the felon he would be acquitted by Lord Denning and convicted by Lord Goddard." 25 Mod. L. Rev. at 315.

Their lordships agreed that the questions of when the knowledge must be revealed and how much trouble must be taken to reveal it were for the jury. Glazebrook is critical of this as assigning unsuitably vague questions to the trier of fact:

"If a man is to be punished for not doing something, he ought to know precisely what is expected of him. The standard which he fails at his peril to attain ought not to be left to be fixed after the event by the whim of a particular jury. Formulae that pass muster in determining the liability of one who engages in a dangerous course of conduct are not always suited to crimes of pure omission." Id. at 316.

Only Lord Denning considered relationship with the felon with respect to the duty to disclose:

"Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor [350] and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported." Sykes at 42.

Glazebrook finds this to be "a singularly unhappy instance of creative judicial activity, for a defence grounded on a `claim of right made in good faith' is in this context inapt, and the choice of relationship perverse." 25 Mod. L.R. at 317. He explains:

"A person advancing a defence of `claim of right' pleads that he mistakenly thought that the law recognised in him a right to act in the way he did. If his defence is accepted, his mistake will be benevolently viewed, and he is excepted from criminal liability. The defence is thus founded on the mistake, on the claim, not the right, and disappears when the mistake is corrected.... In short, if the crime is to be limited, there must be a categorical rule that doctors and the like are under no duty to disclose their patients' felonies." Id.

As to the choice of exempt relationships

"[t]he exclusion in misprision of `close family or personal ties' is utterly callous and certainly futile: how can the relation between doctor and patient, an employer and his servant, be thought more sacred, more deserving of respect and consideration — even by the law — than that between husband and wife, between father and son? By what standard is it unreasonable to expect an employer to report his servant's crimes to the police, and yet proper that a son should betray his father?" Id. at 318.

[351] We observe that common law misprision is not only beset with practical defects but may implicate constitutional privileges. To sustain the Fifth Amendment right against self-incrimination,^[30] "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure might result." Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814 (1951). The privilege extends not only to information that would itself support a conviction, but "likewise embraces those which would furnish a link in the chain of evidence to prosecute the claimant...." Id. at 486. See United States v. King, 402 F.2d 694 (9th Cir.1968), reversing conviction of federal misprision on Fifth Amendment grounds. We note also that it has been suggested that the federal misprision statute may involve the right of privacy. In United States v. Worcester, 190 F. Supp. 548, 566 (D. Mass. 1961), Judge Wyzanski, discussing the federal statute, said:

"To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that `as far as possible privacy should be respected.' There is `a strong reluctance on the part of judges and legislators to sanction invasion of privacy in the detection of crime.' There is `a general sentiment that the right to privacy is something to be put in balance against the enforcement of the law.' Sir Patrick Devlin, The Enforcement of Morals, p. 19."

See Shannonhouse, Misprision of a Federal Felony: Dangerous Relic or Scourge of Malfeasance, 4 U. Balt. L. Rev. 59 (1974), calling for "excisement from the criminal code" of the federal crime. Compare Goldberg, Misprision of Felony: An Old Concept in New Context, 52 A.B.A.J. 148 [352] (1966), and Comment, Misprision of Felony: A Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199 (1975).

We have proceeded on the assumption that the House of Lords was correct in concluding in Sykes that "there is and always has been an offense of misprision of felony...." Sykes at 40. We are persuaded, finding no sound reason not to be, that their lordships' definition of the offense and the composition of its elements properly reflected the crime as it existed at common law. We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards.^[31] We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.

III

We have reversed Pope's conviction of the felony of child abuse because the evidence was insufficient to sustain the verdict. She may not be tried again for that crime. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978); Greene v. [353] Massey, 437 U.S. 19, 98 S.Ct. 2151 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978).

As we have held that the crime of misprision of felony does not now exist in Maryland, Pope may not, of course, be retried on a charge of that crime.

IV

Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.

Pope had the selection translated at a cost of $150. She further moves this Court to order the Office of the Attorney General to reimburse the Office of the Public Defender for the cost of the translation. Pope undertook to have the selection translated on her own initiative. The motion is denied.

Judgment of the Court of Special Appeals with respect to child abuse, third count of Indictment No. 18666, reversing the judgment of the Circuit Court for Montgomery County, affirmed; judgments of the Court of Special Appeals with respect to misprision of felony, fifth count of Indictment No. 18666, affirming the judgment of the Circuit Court for Montgomery County, reversed; case remanded to Court of Special Appeals with direction to remand to the Circuit Court for Montgomery County for entry of judgment of acquittal on the third count and dismissal of the fifth count; motion of appellant to strike granted; motion of appellant for appropriate relief denied; costs to be paid by Montgomery County.

[354] Eldridge, J., concurring in part and dissenting in part:

I concur in that portion of the Court's opinion relating to the crime of misprision of a felony. I also agree with the majority that Pope was not guilty of child abuse as a principal in the second degree. However, I cannot agree with the majority's restrictive interpretation of the child abuse statute, which interpretation furnishes the basis for the majority's conclusion that Pope was not guilty of child abuse as a principal in the first degree.

The child abuse statute, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 35A (a), reaches "[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child...." The Court today takes the position that the statutory phrase "has responsibility for the supervision of" is ambiguous, thereby allowing the Court to "give effect to the real intention of the Legislature." The majority then states that, with regard to persons other than parents, legal custodians or individuals "in loco parentis," only those persons who have assumed responsibility for a child with the consent of the parent or guardian are covered by the statute. The majority finds it "self-evident" that "a third person may not assume such responsibility unless the parent grants it."

Thus, we are told by the majority opinion that a "person taking a lost child into his home" while an attempt is made to locate his or her parents is beyond the reach of the child abuse statute. In other words, in the Court's view, such a person may voluntarily assume full responsibility for the care of a small child, for a lengthy period of time while an effort is being made to find the parents, and during that time may batter the child unmercifully, but he would not be guilty of child abuse under Art. 27, § 35A. In my view this is a totally unwarranted narrowing of an important piece of legislation.

In addition to parents, the child abuse statute applies to "[a]ny ... other person who has ... responsibility for the supervision of a minor child...." The language is clear. Everyone who has responsibility is covered, regardless of how he obtained such responsibility.

[355] It is well-established in the law that one may, by his own actions, voluntarily assume a particular responsibility. That the Legislature intended to cover such a person is shown by the language any other person who has responsibility. There is no ambiguity here. Consequently, there is no need to go further in attempting to ascertain the legislative intent. The majority opinion today flatly violates settled principles of statutory construction, recently summarized by Judge Orth for the Court as follows (Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054-1055 (1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978)):

"The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327 A.2d 483 (1974), `where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.'"

[356] Furthermore, even if there existed some ambiguity in the statute, I am at a loss to know why the majority finds it "self-evident" that only those persons who have been granted responsibility by a parent or guardian should be covered. Nothing in the statutory language indicates such a legislative purpose. I know of no public policy justifying this differentiation between a person who assumes responsibility for a child with parental consent and one who assumes just as complete a responsibility without the parent's consent. If either abuses the child, he should be held accountable under § 35A.

The majority appears to be concerned about the "good samaritans" who watch a lost child, or allow neighbors' children to play in their yards and exercise supervision, or perform "functions of a maternal nature from concern for the welfare, comfort or health of a child." However, such "good samaritans" have nothing to fear from the child abuse statute. But, if one of these same individuals assumes responsibility for the child and batters it, sexually molests it, locks it for a long period of time in a dark closet, etc., that person should be held just as accountable under the child abuse statute as someone else having responsibility for the child.

My concern in this case is not so much with the decision that the evidence was insufficient to convict Pope of child abuse. The evidence may not have been sufficient. Instead, what is troublesome in this case is the damage which the majority has done to the child abuse statute.

[1] The remaining seven counts of the indictment, each concerning offenses committed on or about 11 April 1976 concerning or related to the minor child, alleged murder in the second degree — 1st count; manslaughter — 2nd count; accessory after the fact, murder — 4th count; obstruction of justice — 6th count; conspiracy to obstruct justice — 7th count; assault and battery — 8th count; assault — 9th count. Before trial, the court granted Pope's motion to dismiss the 4th count. At the close of evidence offered by the State, the court granted Pope's motions for judgment of acquittal as to the 6th and 7th counts. At the close of all the evidence, the court reserved ruling on Pope's motions for judgment of acquittal on the remaining counts. It found her "sane" and not guilty on the 1st and 2nd counts, and "sane" and guilty on the 3rd and 5th counts. It held that the 8th and 9th counts merged with the 3rd count.

Pope was also charged in indictment no. 17830 with murder in the first degree. This indictment was nol prossed before trial.

[2] The trial court sentenced Pope to the Department of Corrections for a period of seven years on each of the convictions under the 3rd and 5th counts, the sentences to run concurrently. It suspended all but eighteen months of the sentence and recommended that it be served in the Montgomery County Detention Center. Upon release, Pope was to be placed on supervised probation for two years upon condition that she "seek and take psychiatric or psychological assistance."

[3] The evidence at the trial consisted primarily of two extra-judicial statements given by Pope to the police, one written by her and the other tape recorded, and her testimony at trial, which was essentially repetitious of the statements. Pope's brief contains an agreed statement of facts pursuant to Maryland Rule 828 g. A summary of the evidence is given in the opinion of the Court of Special Appeals. Pope v. State, 38 Md. App. 520, 530-536, 382 A.2d 880 (1978).

[4] The mother, charged and tried separately from Pope, was found to be not responsible for her criminal conduct at the time of the commission of the offense, and, therefore, not guilty by reason of insanity. Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 25(a).

[5] Acts 1963, ch. 743.

[6] Acts 1970, ch. 500.

[7] See Acts 1964, ch. 103; Acts 1966, ch. 221; Acts 1967, ch. 38; Acts 1968, ch. 702; Acts 1970, ch. 500; Acts 1973, ch. 656; Acts 1973, ch. 835; Acts 1974, ch. 372; Acts 1974, ch. 554; Acts 1975, ch. 219; Acts 1977, ch. 290; Acts 1977, ch. 504.

[8] Acts 1973, ch. 835.

[9] In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we rejected the contention that the definition of abuse was so indefinite as not to comport with the established standards of due process. We opined that "the definition of abuse ... represents a most suitable compromise between the constitutionally mandated requirements of specificity and the practical need to devise language flexible enough to combat a social evil of truly inestimable proportions." Id. at 129.

[10] Habeas corpus was refused by the United States District Court for the District of Maryland to the convicted mother. On appeal, the United States Court of Appeals for the Fourth Circuit by a majority of a three judge panel, Haynsworth, C.J. dissenting, vacated the judgment and remanded the case to the District Court to grant the writ. Fabritz v. Superintendent, 583 F.2d 697 (1978). In so doing the court accepted "the statute as valid, as did the Court of Appeals of Maryland and the District Court, and accept[ed], too, their clear exposition of the critical words of the law." 583 F.2d at 700. It held that "[t]he statute simply was unconstitutionally applied." Id. It viewed the conviction void for denial of Fourteenth Amendment due process "because the `conviction [is] based on a record lacking any relevant evidence as to a crucial element of the offense charged,' i.e., that the mother had knowledge of the critical gravity of her daughter's condition when she deferred resort to medical advice for the little girl." 583 F.2d at 698.

We had found it to be manifest from the evidence that the mother knew of the child's severely beaten condition and had failed for some eight hours to seek or obtain any medical assistance although, as the evidence plainly indicated, the need therefor was obviously compelling and urgent. We observed that there was evidence that the mother's failure to seek assistance was based upon her realization that the bruises covering the child's body would become known were the child examined or treated by a physician. State v. Fabritz, 276 Md. 416, 425, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976). Chief Judge Haynsworth was in accord. He did not agree with the majority of the panel that the record was devoid of evidentiary support. He found therein evidence sufficient to support a conclusion that the mother, though generally loving and protective of her daughter, consciously refrained from seeking medical help to protect her lover, the person who beat the child, from possible criminal charges and to support her own ego. "[A] conscious indulgence of such a preference," he thought, "is in violation of Maryland's Child Abuse Law...." 583 F.2d 701 (Haynsworth, C.J. dissenting).

We note that, unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us. Declaration of Rights, Md. Const., Art. 2; Gayety Books v. City of Baltimore, 279 Md. 206, 213, 369 A.2d 581 (1977); Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (1975). We are not persuaded to depart from our view of the evidence by the majority opinion of the federal appellate court.

[11] Under Acts 1963, ch. 743 the statute applied to a child under the age of fourteen years. By Acts 1966, ch. 221 the statute was made applicable to a child under the age of sixteen years, and by Acts 1973, ch. 835 to a child under the age of eighteen years.

[12] Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 12A provides:

"Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person's defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself."

Code (1957, 1971 Repl. Vol., 1978 Cum. Supp.) Art. 43, § 132 grants immunity from liability from civil damages to physicians and certain other persons rendering aid under emergency conditions.

[13] We have observed: "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree," and we characterized such difference as "a shadowy distinction." Vincent v. State, 220 Md. 232, 239, n. 1, 151 A.2d 898 (1959). Clark & Marshall, A Treatise on the Law of Crimes (7th ed. 1967) elaborated the point:

"The common law recognizes no difference in the punishment, between principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is immaterial and on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abetting, and conversely.

"And at common law a principal in the second degree may be indicted and convicted before trial of the principal in the first degree, and even after he has been acquitted, or convicted of an offense of lesser degree, though the commission of the act by the principal in the first degree must be proved in order to convict one as aiding and abetting. Id. at § 8.05, p. 521.

See Hochheimer §§ 37-38, And "unless it is plain, from the nature of an offense made a felony by statute, that the provisions of the statute were intended to affect only the party actually committing the offense, aiders and abettors are punishable." Clark & Marshall at § 8.04, p. 520.

[14] Before the Court of Special Appeals the State explained the mother's continual presence and exercise of supervision from time to time while she was awake as conduct permitted by Pope but manifesting "no indication whatsoever that [Pope] intended to relinquish her responsibility." As the Court of Special Appeals correctly observed: "That puts the cart before the horse. It is the mother whose responsibility was not relinquished or absolved." Pope v. State, 38 Md. App. 520, 537-538, 382 A.2d 880 (1978). Before us, the State has apparently abandoned the notion it suggested before the intermediate court.

[15] This State has enacted a comprehensive scheme, surrounded by safeguards, for determining whether a person is suffering from a mental illness or mental disorder so as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment. Maryland Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) Art. 59, § 1 et seq. It would be unthinkable to impose such a determination on an ordinary individual at the risk of criminal prosecution. Not even the "reasonable man," so often called upon by the law, has the expertise to make such a judgment.

[16] The principal in the second degree differs from the accessory before the fact only in the requirement of presence. "The principal in the second degree must be present at the perpetration of the felony, either actually or constructively, whereas the accessory before the fact must be absent. In other words, although neither presence nor absence is of itself a determinant of guilt, yet if the mens rea is found to exist, the same aid, command, counsel, or encouragement which will make a principal in the second degree of one who is present (actually or constructively) at the time a felony is committed, will make him an accessory before the fact if he is absent." R. Perkins, Criminal Law 658-659 (2d ed. 1969).

[17] 1 Hale, Pleas of the Crown, 439, as quoted in Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Clark & Marshall § 8.02, p. 511, n. 15, also quotes 2 Hawkins, Pleas of the Crown, c. 29, § 10 on the matter:

"`Those who, by accident, are barely present when a felony is committed, and are merely passive, and neither in any way encourage it, nor endeavor to hinder it, nor to apprehend the offenders, shall neither be adjudged principles [sic] nor accessories; yet, if they be of full age, they are highly punishable by fine and imprisonment for their negligence, both in not endeavoring to prevent the felony, and in not endeavoring to apprehend the offender.'"

[18] "[T]he inhabitants of Maryland are entitled to the Common Law of England ... according to the course of that Law...." Declaration of Rights, Md. Const. Art. 5.

[19] The Circuit Court for Carroll County reached the opposite view, dismissing a charging document before it on the ground that misprision of felony is not a crime in Maryland. State v. Shaw, 282 Md. 231, 232, 383 A.2d 1104 (1978). The State appealed. On our review upon grant of writ of certiorari prior to decision by the Court of Special Appeals, we disposed of the appeal upon a double jeopardy issue making it unnecessary for us to address the question whether misprision of felony is a crime in this State. Id. at 232, n. 2 and at 237.

[20] There was further recognition of the crime of misprision of felony in Rex v. King [1965] 1 All E.R. 1053 (Crim.App.). It was held that, after being cautioned against self-incrimination, the defendant's silence can not possibly constitute misprision. When an accused is questioned about an offense, he is not bound to answer if his reply would incriminate him regarding that offense or any other offense. On the other hand, if after caution, he chooses to say something which conceals the felony, then this will amount to active concealment, not protected by the right against self-incrimination and may constitute misprision. Id. at 1055. See Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100 (1974).

[21] State v. Biddle, 32 Del. 401, 124 A. 804 (1923) is a report of a charge to the jury by the Court of General Sessions to the effect that the common law crime of misprision existed in Delaware and that it may consist of wilful failure and neglect either to make an effort to prevent the felony being committed or to prosecute the felon. The official report states that the defendant was acquitted. The West report asserts that she was convicted. We are informed by the Bureau of Archives and Records of Delaware that the docket entries for the case, indictment no. 20, November Term, 1923, show that the defendant was acquitted.

[22] The Model Penal Code (U.L.A.) would make it an offense to volunteer false information to a law enforcement officer, § 242.3 (4) and to aid the consummation of crime, § 242.4.

[23] The Commission was obviously content with the more definitive offenses of "hindering prosecution" and "compounding a crime." See Maryland Commission on Criminal Law, Report and Part I of `Proposed Criminal Code (1972) §§ 205.65-205.70 and § 215.50.

[24] Chief Judge Chase continued: "... and what part has become obsolete from non-user or other cause." State v. Buchanan, 5 H. & J. 317, 366 (1821). The addendum, insofar as it applies to "non-user", does not appear to be in accord with the opinion of the Court rendered by Buchanan, J. as we have indicated.

[25] We noted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204-205, 82 A.2d 106 (1951) that in determining the common law as it exists in this State, we have not always followed the view taken by the majority of other states, citing Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951) and Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). We believed that we were under no obligation to follow the majority view, unless we thought it better reasoned and sound.

[26] The Court of Special Appeals recognized that it was "not bound by current opinion of the House of Lords," but noted that "its view of what comprised the elements of its common law prior to 1776 is hard to gainsay." Pope v. State, 38 Md. App. 520, 530, 382 A.2d 880 (1978). It continued: "If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say." Id.

[27] The question whether the offense extended to concealing knowledge of an intended felony was left open.

[28] Glazebrook observed that the absence of substantial authority by way of reported cases seriously handicapped their lordships in justifying the law, not only in freeing it from the criticism that it was impossibly wide in scope, but also in determining its ingredients. 25 Mod. L. Rev. 301, 307. "... Lord Denning was driven to the curious position of stating that `the ingredients of the offence can best be seen by comparing it with offences of like degree which have other ingredients.' His lordship might, with equal logic, have postulated crimes of fornication or adultery, and then determined their elements by examining the offences of rape, incest and buggery." Id. at 312.

[29] It is difficult to see how even a reasonable man could know that a felony had been committed if he does not know the felon. "He has to make certain assumptions about the perpetrator's mens rea and this he cannot do if he does not know who he is." 25 Mod. L. Rev. at 315, n. 91.

[30] "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.

[31] The child abuse law requires "[e]very health practitioner, educator, or social worker or law-enforcement officer, who contacts, examines, attends, or treats a child and who believes or has reason to believe that the child has been abused ... to make a report ... notwithstanding any other section of the law relating to privileged communications...." Code (1957, 1976 Repl. Vol.) art. 27, § 35A(c). It further requires any person, other than those specified in § 35A(c), "who has reason to believe a child is abused [to] so report to the local department of social services or to the appropriate law-enforcement agency...." § 35A (e). There is no sanction for failure to comply, but immunity from civil or criminal penalty is provided when there is compliance. § 35A (h).

[58] Robert T. Johnson, District Attorney, Bronx County (Lara R. Binimow and Peter D. Coddington of counsel), for respondent.

Richard L. Herzfeld for appellant.

BUCKLEY, P.J., TOM, SULLIVAN and ROSENBERGER, JJ., concur.

OPINION OF THE COURT

SAXE, J.

This appeal requires us to consider the nature and extent of the duty owed to a child by an unrelated adult when the child resides in the adult's household along with his own children and those of his paramour. In particular, we consider whether the prosecution in this case properly relied upon the application of the "in loco parentis" doctrine to convict defendant of murder based upon a failure to provide medical care to a child who was not his biological child.

This prosecution concerns the death of nine-year-old Sabrina Green, who was, at the time, the charge of her older sister, Yvette Green. Defendant Darryl Stephens and Yvette Green had lived together since 1985; defendant was the father of 8 of Yvette's 10 children. Sabrina came to live in their household in November of 1996. Defendant and Yvette were both convicted of murder in the second degree, under Penal Law § 125.25 (4), for Sabrina's death.

Sabrina Green was born on August 28, 1988 to a crack-addicted mother, with whom she lived until her mother died in 1991. Sabrina was then cared for by a family friend, Sylvia Simmons, until Simmons died in 1996. Sabrina then briefly lived with a relative, Denise Nelson, but Nelson found Sabrina to be too "hyper" and therefore, in November 1996, she went to live in the household of her older sister Yvette. Yvette was awarded legal guardianship of Sabrina.

Sabrina had severe behavior problems. At age five she was diagnosed with attention deficit and hyperactivity disorder; the pediatric neurologist who testified at trial suggested she might also have been suffering from oppositional defiant disorder. While she had been treated with Ritalin for years with some success by the time she came to live with them, Yvette did not, or could not, continue to provide her with the medication.

Soon after she moved in, Sabrina began to regularly exhibit aggressive behavior, including throwing tantrums, hitting her [59] head and arms against furniture when she did not get her way, and getting into fights with the other children in the apartment and at school; she also wet her bed. She had difficulty following household rules, and in this household, a breach of these rules resulted in punishment, imposed either by Yvette or by defendant, such as having to stand in the corner, being grounded in her room, and being whipped with a belt or stick. Sabrina was punished almost daily.

Tyrone Green, Yvette's son, then 19 years old, testified that he had observed Sabrina taking food out of the refrigerator one night, a serious breach of the household rules which he went to report to Yvette and defendant. Yvette was asleep, and defendant responded to Tyrone that he "would take care of it." The next day Tyrone saw a gauze wrapping on Sabrina's hand, and he later saw that it had been burned. Almost every night thereafter, either Yvette or defendant would tie Sabrina's arms and legs to the bed with a jump rope, for the entire night. In addition, Sabrina was required to spend most of her time sitting in the hallway where she could be watched by both Yvette and defendant. The condition of her hand grew worse, and she was no longer allowed to go to school or outside to play. Despite the older children's entreaties that Sabrina be taken to a doctor, neither Yvette nor defendant did so. Yvette told the children that she was afraid to do so because she might be blamed for the injuries and have her children taken away.

Despite the testimony of Yvette's sons Tyrone and Marcus, relating that in September 1997 defendant stated that he could no longer deal with Sabrina and that Yvette was going to have to take over being in charge of her, Tyrone also testified that one morning, perhaps about a week before Sabrina died, Tyrone saw defendant hitting Sabrina with a belt 10 or 12 times.

At the time of Sabrina's death, on November 8, 1997, she was suffering from multiple conditions, including subdural hemorrhage caused by numerous blunt impacts to the head, a third-degree burn to her hand which was left untreated until infection and gangrene set in, and pneumonia. Dr. Ozuah, the physician who examined Sabrina's body at the hospital, observed bruises, some fresh, which were consistent with being hit with a belt, scars that were consistent with her hands being tied with a rope, and bed sores indicating she had been immobilized for many days. There was a severe third-degree burn to her left hand through all layers of skin, which was consistent with being held to a surface such as an iron or stove, and there [60] were fresh injuries on top of the burn. There were injuries to Sabrina's right hand consistent with being slammed repeatedly in a refrigerator door some time in September; the flesh was decaying and gangrenous. Dr. Ozuah also found an old injury to Sabrina's head as well as several that had been inflicted within 24 hours of her death. All the head injuries were serious, requiring a great deal of force, such as from a baseball bat, and could not have been self-inflicted by a nine-year-old banging her head on the floor.

An autopsy report revealed that Sabrina had died as the result of six recent severe blunt impact wounds to the head, as well as pneumonia caused by an infection which spread from her hands to her bloodstream and lungs. There were numerous scars, including scars to her back, thighs and legs consistent with a severe beating with a belt one week before her death.

The medical examiner who testified at trial based upon the autopsy report suggested that the cause of death was septic shock resulting from a bacterial infection in the bloodstream due to the untreated burn. It was the expressed opinion of both the examining physician and the medical examiner that Sabrina had been a victim of child abuse.

DISCUSSION

Sufficiency and Weight of Evidence

The provision of Penal Law § 125.25 under which defendant was charged with murder in the second degree requires that the defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of serious physical injury or death to a person less than 11 years of age. The People's theory regarding defendant's guilt was that acting in concert with Yvette Green, with the requisite mental state, he had engaged in conduct which caused injuries that had resulted in Sabrina's death, and in addition, that he had failed to get her the medical care she needed or take any other steps to protect her, when he knew of her grave injuries.

Defendant's challenge to the sufficiency of the evidence is two-pronged: first, that the evidence failed to show that he was responsible for the injuries that caused Sabrina's death, and second, since he was neither the child's father nor her guardian, he had no legal duty toward Sabrina, and therefore was not legally chargeable with his mere failure to act to ensure she got medical treatment. We do not agree with his contentions.

First, there was sufficient evidence to permit the jury to find that defendant, acting in concert with Yvette, under circumstances [61] evincing a depraved indifference to human life, had recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina, thereby causing her death.

Moreover, the evidence similarly supported the People's alternate theory, which was based upon the application of the doctrine of in loco parentis. We reject defendant's suggestion that he may not be held liable for his failure to ensure that Sabrina received necessary medical attention due to his lack of legal connection to the child.

Defendant correctly points out that since he was neither the child's parent nor her legal guardian, he may only be convicted based upon a failure to take action to protect the child from harm if a legal duty may be imposed upon him under the in loco parentis doctrine:

"Criminal liability cannot be premised on a failure to act . . . unless the party so charged has a legal duty to act (see, People v Spadaccini, 124 AD2d 859, 861). A person who has no familial relationship to a child ordinarily has no legal duty to provide for it, unless it can be shown that he or she has assumed all of the responsibilities incident to parenthood. That a party has taken some part in meeting the child's daily needs is not enough; a `full and complete. . . interest in the well-being and general welfare' of the child is necessary, as is the intent to fully assume a parental role, with the concomitant obligations to support, educate, and care for the child on an ongoing basis (Rutkowski v Wasko, 286 App Div 327, 331)." (People v Myers, 201 AD2d 855, 856 [1994].)

However, the evidence fully supports the application of the doctrine here.

People v Myers presented circumstances in which the in loco parentis doctrine could not support criminal liability. There, the court dismissed the indictment of the defendant for manslaughter (and for endangering the welfare of a child) of a two-month-old child who had died of severe dehydration and malnutrition; although the defendant was the live-in boyfriend of the infant's mother, the evidence merely showed that he contributed to household finances, occasionally purchasing formula for the infant and acting as a babysitter, not that he had "intended to shoulder any responsibility for the child's welfare" (People v Myers, 201 AD2d at 856).

[62] In contrast, the evidence here reflected that Darryl Stephens was far more than a live-in boyfriend who took no part in the raising of the child. Rather, it supported the conclusion that during his long-term live-in relationship with Yvette, he "assumed all of the responsibilities incident to parenthood" (People v Myers, supra at 856). The 11 children living in the household, including Sabrina, were all housed, clothed, fed and supervised jointly by Yvette and defendant. Defendant took the children, including Sabrina, to school, stayed with them when Yvette was out, set down rules for them and punished them for any infractions. The testimony supports a finding that defendant treated Sabrina with the same degree of responsibility as he did the other children, not as a mere babysitter or short-term helper, but as one of the two coequal adults functioning in the role of parent.

The law applicable to the present case is not the same as that applicable to neglect proceedings under the Family Court Act, which defines a "person legally responsible" for a child to include "any other person responsible for the child's care at the relevant time" (see Family Ct Act § 1012 [g]), which provision is "intended to be construed broadly so as to include paramours or other nonparental persons who perform childcare duties which correspond with the traditional parent/child relationships" (see Matter of Nathaniel TT., 265 AD2d 611, 612 [1999], lv denied 94 NY2d 757 [1999]). Nevertheless, it is instructive to consider those cases in which live-in paramours have been held to be "person[s] legally responsible" for a child.

In People v Sheffield (265 AD2d 258 [1999]), the defendant shared his apartment with the 11-year-old child and her mother, he called the child his "stepdaughter" and had sole custody of her on a daily basis. In Matter of Heather U. (220 AD2d 810 [1995]), respondent had been living with the subject child's mother in a family-like setting for approximately three years, had fathered her youngest child, and was a regular member of the subject child's household.

Similarly, in People v Carroll (244 AD2d 104, 107 [1998], affd 93 NY2d 564 [1999]), this Court upheld a prosecution of a nonparent for endangering the welfare of a child under Penal Law § 260.10 (2), which applies to a "parent, guardian or other person legally charged with the care or custody of a child," because the evidence showed that the nonparent has assumed the role of stepparent during the period in question.

Like the statutes defining neglect as committed by nonrelatives (see Family Ct Act § 1012 [g]) and endangerment of a child [63] as committed by nonrelatives (see Penal Law § 260.10 [2]), the in loco parentis doctrine requires consideration of whether the person charged actually undertook the fundamental responsibilities that are normally those of a parent. Its application here was entirely proper.

Defendant argues that, despite his serving in a parental capacity for all the other children living in his home, including the two who were not his natural children, he could relinquish that role for Yvette's young sister and ward by the simple expedient of making an announcement to that effect. However, even assuming that he could have successfully eradicated, through a pronouncement, the responsibility he had previously undertaken, so as to eliminate Sabrina from his sphere of responsibilities, the evidence makes it unnecessary for us to definitively decide that point. Even if defendant made such pronouncement, the testimony that he continued to take part in the ongoing punishments of Sabrina up until just days before her death, and the lack of evidence that he took any other steps to remove all responsibility for her from his life, permit the conclusion that any such pronouncement did not reflect any actual change in his previous parental posture toward her.

The evidence was legally sufficient to prove beyond a reasonable doubt that defendant was responsible for the victim's care at the time of her death, and that, acting in concert with Yvette, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina (see People v Contes, 60 NY2d 620 [1983]). Moreover, the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]).

Jury Charge

Defendant's argument that the court failed to instruct the jury that his obligation to provide medical care had to be proven beyond a reasonable doubt is both unpreserved and without merit. The court delivered both an in loco parentis charge and a reasonable doubt charge, the latter of which emphasized that the evidence must "establish beyond a reasonable doubt each and every essential element of the crimes charged." No objection was raised to the court's instructions regarding defendant's duty to ensure Sabrina received necessary medical care. The charge was not rendered deficient by the fact that the court did not repeat, after describing each element individually, that it had to be established beyond a reasonable doubt.

[64] The court's acting-in-concert charge was proper and consistent with People v Brathwaite (63 NY2d 839 [1984]) and People v Sanchez (98 NY2d 373 [2002]). The court did not say that mere recklessness was all that was required to convict defendant of murder in the second degree based upon his acting in concert with Yvette, but rather that the jury must find that he acted recklessly "under circumstances evincing a depraved indifference to human life" that created "a grave risk of serious physical injury or death to a person less than 11 years old, and thereby cause[d] the death of such person." The court specifically stated that it was essential that the People prove that both defendant and Yvette "acted with the mental culpability required for the commission of the crimes charged."

There was no error in the court's responses to the jury's notes.

Trial Rulings

We find no error in the court's evidentiary rulings. The two medical experts who gave testimony on the issue of battered child syndrome possessed sufficient qualifications to do so (see People v Kinder, 75 AD2d 34 [1980], lv denied 51 NY2d 732 [1980]). The autopsy photographs were necessary to demonstrate the extent of Sabrina's physical deterioration, in light of Tyrone's testimony that she had looked "fine" shortly before her death, and in order to rebut defendant's claims that he had not known of Sabrina's desperate need for help and would have gotten it for her if he had (see People v Sims, 110 AD2d 214, 222 [1985], lv denied 67 NY2d 657 [1986]). The "before" photograph, which was taken just prior to Sabrina's removal by Yvette from the Children's Storefront School, and which depicts her as smiling and healthy, was necessary to demonstrate the drastic change that took place after she came into defendant's care. Defendant's remaining arguments regarding the admission of evidence are without merit.

The prosecutor's summation was proper, and defense counsel's summation was not unfairly restricted.

Sentencing

The court properly denied defendant's requested adjournment of sentencing. The desire to present witnesses and to prepare a written memorandum chronicling defendant's law-abiding life did not justify an adjournment because there was no need to elaborate on that point. Nor did defendant's lack of any prior involvement with the criminal justice system suffice as a mitigating factor given the nature of this case. Under the facts [65] of this case, we do not find the sentence here to be unduly harsh (see People v Delgado, 80 NY2d 780, 783 [1992]).

Accordingly, the judgment of the Supreme Court, Bronx County (Alexander Hunter, J.), rendered January 10, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, should be affirmed.

Judgment, Supreme Court, Bronx County, rendered January 10, 2000, affirmed.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender) both on brief, Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), both on brief, Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:

"Second degree rape.

(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."

Subsection (a)(3) represents the current version of a statutory provision dating back to the first comprehensive codification of the criminal law by the Legislature in 1809.^[1] Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old.

I

Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.

In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.

Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:

"Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she.

"In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape.

"It is in the Court's opinion a strict liability offense."

The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case, 329 Md. 601, 620 A.2d 940.

II

In 1975 the Legislative Council of the General Assembly established the Special Committee on Rape and Related Offenses, which proposed a complete revision of Maryland law pertaining to rape and other sex crimes. See generally J. William Pitcher, Rape and Other Sexual Offense Law Reform in Maryland 1976-1977, 7 U.Balt.L.Rev. 151 (1977). Based on the Committee's work, Senate Bill 358 was introduced, amended, and enacted on May 17, 1976, as ch. 573 of the Acts of 1976. In part, it repealed the common law crime of rape, the former statutory prohibition of carnal knowledge of underage girls, and other related crimes and replaced them with the current array of criminal laws delineating two degrees of rape and four degrees of sexual offenses. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-5 and Code, Art. 27, §§ 462-464C; see also Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure 65-66, 68-81 (1983).

The new legislation reformulated the former statutory rape law by introducing the element of a four-year age difference between the accused and the underage complainant. Report of the Senate Judicial Proceedings Committee, at 2. As originally enacted by ch. 573 of the Acts of 1976, sexual intercourse with a person under 14 by an actor more than four years older was classified as rape in the first degree, and carried a maximum penalty of life imprisonment. The Legislature, by ch. 292 of the Acts of 1977, reduced the crime to rape in the second degree carrying a maximum sentence of 20 years in prison. These reforms of 1976 and 1977 created the law now embodied in § 463(a)(3).

Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.

III

Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.

The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988). In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence. Writing for the United States Supreme Court, Justice Robert Jackson observed:

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

* * * * * *

"Crime as a compound concept, generally constituted only from a concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."

Morissette v. United States, 342 U.S. 246, 250-252, 72 S.Ct. 240, 243-244, 96 L.Ed. 288 (1952).

To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Dawkins, supra, 313 Md. at 644-645, 547 A.2d 1041; see generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 242-243 (2d ed. 1986); 1 Wharton's Criminal Law 100-111 (Charles E. Torcia ed., 14th ed. 1978). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.

Modern scholars generally reject the concept of strict criminal liability. Professors LaFave and Scott summarize the consensus that punishing conduct without reference to the actor's state of mind fails to reach the desired end and is unjust:

"`It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.'"

LaFave & Scott, supra, at 248, quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.

Dean Singer has articulated other weaknesses of strict criminal liability theory: 1) extensive government civil regulations and strict liability in tort achieve the same deterrent effect; 2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally by decriminalizing them, and hearing such cases in a regulatory or administrative forum; 3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime; 4) some strict liability laws may result from careless drafting; and 5) strict liability dilutes the moral force that the criminal law has historically carried. Singer, supra, at 389-397, 403-404. The author concludes that "the predicate for all criminal liability is blameworthiness; it is the social stigma which a finding of guilt carries that distinguishes the criminal [penalty] from all other sanctions. If the predicate is removed, the criminal law is set adrift." Id. at 404-405.

Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980). The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. Id. at §§ 1.04, 2.05.^[2]

The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 106 (1965). Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children. Id. at 119-122.^[3] See also Richard A. Tonry, Comment, Statutory Rape: A Critique, 26 La.L.Rev. 105 (1965); Michael McGillicuddy, Note, Criminal Law: Mistake of Age as Defense to Statutory Rape, 18 U.Fla.L.Rev. 699 (1966); Dennis L. Pieragostini, Note, Reasonable Mistake as to Age — a Defense to Statutory Rape under the New Penal Code, 2 Conn.L.Rev. 433 (1969) (statute since superseded); Kelly Vance, Note, State v. Elton: The Failure to Recognize a Defense to Statutory Rape, 1983 Utah L.Rev. 437 (case subsequently reversed upon reconsideration); Benjamin L. Reiss, Note, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377 (1992). But see Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex.L.Rev. 387, 401-413 (1984).

Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. See LaFave & Scott, supra, at 410-410; Myers, supra, at 127-129. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the `community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct." LaFave & Scott, supra, at 411. The drafters of the Model Penal Code remarked:

"[T]he actor who reasonably believes that his partner is above that age [of consent] lacks culpability with respect to the factor deemed critical to liability. Punishing him anyway simply because his intended conduct would have been immoral under the facts as he supposed them to be postulates a relation between criminality and immorality that is inaccurate on both descriptive and normative grounds. The penal law does not try to enforce all aspects of community morality, and any thoroughgoing attempt to do so would extend the prospect of criminal sanctions far into the sphere of individual liberty and create a regime too demanding for all save the best among us."

Id., Comment to § 213.6, at 415. We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.

IV

The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In Kentucky, the accused may prove in exculpation that he did not know the facts or conditions relevant to the complainant's age. Ky. Rev. Stat. Ann. § 510.030 (1992). In Washington, the defendant may assert that he reasonably believed the complainant to be of a certain age based on the alleged victim's own declarations. Wash. Rev. Code Ann. § 9A.44.030 (1988, 1993 Cum.Supp.) In some states, the defense is available in instances where the complainant's age rises above a statutorily prescribed level, but is not available when the complainant falls below the defining age. E.g. Pa. Cons. Stat. Ann. tit. 18, § 3102 (1983) (defining critical age at 14); W. Va.Code Ann. § 61-8B-12 (1992 Repl.Vol.) (defining critical age at 11, defense subject to a recklessness standard); Or. Rev. Stat.Ann. § 163.325 (1990 Repl.Vol.) (defining critical age at 16).^[4] In other states, the availability of the defense depends on the severity of the sex offense charged to the accused. E.g. Minn. Stat. Ann. §§ 609.344-609.345 (1987, 1993 Cum.Supp.) (defense available for certain charges under third-degree and fourth-degree criminal sexual conduct).^[5]

In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant's age. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." Id., 39 Cal. Rptr. at 362, 393 P.2d at 674. The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:

"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... [T]he courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."

Id., 39 Cal. Rptr. at 364, 393 P.2d at 676.

The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse).^[6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.

V

We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion.

It is well settled that in interpreting a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988). While penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question. State v. Kennedy, 320 Md. 749, 754-755, 580 A.2d 193 (1990); Davis v. State, 319 Md. 56, 60-61, 570 A.2d 855 (1990). To that end, the Court may appropriately look at the larger context, including external manifestations of the legislative purpose, within which statutory language appears. Fairbanks v. McCarter, supra, 330 Md. at 46, 622 A.2d 121; Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648 (1991); Morris v. Prince George's County, 319 Md. 597, 603-604, 573 A.2d 1346 (1990).

Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability. See McAlear v. McAlear, 298 Md. 320, 343-344, 469 A.2d 1256 (1984) (a court must read the language of a statute in relation to all of its provisions in determining legislative intent); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980) (same).

Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-2. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. 1976 Senate Journal, at 1363. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." 1976 Senate Journal, at 1364. These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.

Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. See 1976 House Journal, at 3686.^[7] The Senate concurred in the House amendments and S.B. 358 became law. 1976 House Journal, at 3761; 1976 Senate Journal, at 3429; 1976 Acts of Maryland, at 1536. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.

This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204-05, 67 L.Ed.2d 437 (1981); Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 760-761 (1980). The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime. Eggleston v. State, 4 Md. App. 124, 241 A.2d 433 (1968); see the compilation in W.E. Shipley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966, 1992 Supp.).

VI

Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.

JUDGMENT AFFIRMED, WITH COSTS.

ELDRIDGE, Judge, dissenting:

Both the majority opinion and Judge Bell's dissenting opinion view the question in this case to be whether, on the one hand, Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 463(a)(3), is entirely a strict liability statute without any mens rea requirement or, on the other hand, contains the requirement that the defendant knew that the person with whom he or she was having sexual relations was under 14 years of age.

The majority takes the position that the statute defines an entirely strict liability offense and has no mens rea requirement whatsoever. The majority indicates that the defendant's "knowledge, belief, or other state of mind" is wholly immaterial. The majority opinion at one point states: "We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case." Nevertheless, according to the majority, it was permissible for the trial judge to have precluded exploration into Raymond's knowledge and comprehension because the offense is entirely one of strict liability.

Judge Bell's dissent, however, argues that, under the due process clauses of the Fourteenth Amendment and the Maryland Declaration of Rights, any "defendant may defend on the basis that he was mistaken as to the age of the prosecutrix."

In my view, the issue concerning a mens rea requirement in § 463(a)(3) is not limited to a choice between one of the extremes set forth in the majority's and Judge Bell's opinions. I agree with the majority that an ordinary defendant's mistake about the age of his or her sexual partner is not a defense to a prosecution under § 463(a)(3). Furthermore I am not persuaded, at least at the present time, that either the federal or state constitutions require that a defendant's honest belief that the other person was above the age of consent be a defense.^[1] This does not mean, however, that the statute contains no mens rea requirement at all.

The legislative history of § 463(a)(3), set forth in the majority opinion, demonstrates that the House of Delegates rejected the Senate's proposed requirement that an older person, having sexual relations with another under 14 years of age, know or should know that the other person was under 14. The House of Delegates' version was ultimately adopted. From this, the majority concludes that the enacted version was "without a mens rea requirement." The majority's conclusion does not necessarily follow. Although the General Assembly rejected one specific knowledge requirement, it did not decree that any and all evidence concerning a defendant's knowledge and comprehension was immaterial.

There are pure strict liability offenses where "the purpose of the penalty is to regulate rather than to punish behavior" and where criminal "liability is imposed regardless of the defendant's state of mind," Dawkins v. State, 313 Md. 638, 645, 547 A.2d 1041 (1988). These "offenses commonly involve light fines or penalties," Dawkins, 313 Md. at 644, 547 A.2d at 1044. There are other offenses (also unfortunately often called "strict liability" offenses) where the legislature has dispensed with a knowledge requirement in one respect but has not intended to impose criminal liability regardless of the defendant's state of mind.^[2] Such offenses

"do require `fault' ..., in that they `can be interpreted as legislative judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.'"

W. LaFave & A. Scott, Jr., Substantive Criminal Law, ch. 3, § 3.8(c), at 349 (1986), quoting Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 743 (1960). See also P. Robinson, Criminal Law Defenses, ch. 3, § 108(b), at 535 (1984) ("If reasonable mistake as to the victim's age is disallowed ... [t]here is, . . strict liability with respect to that element") (emphasis added).

Neither the statutory language nor the legislative history of § 463(a)(3), or of the other provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed regardless of the defendant's mental state. The penalty provision for a violation of § 463(a)(3), namely making the offense a felony punishable by a maximum of 20 years imprisonment (§ 463(b)), is strong evidence that the General Assembly did not intend to create a pure strict liability offense.

In the typical situation involving an older person's engaging in consensual sexual activities with a teenager below the age of consent, and the scenario which the General Assembly likely contemplated when it enacted §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2), and 464C(a)(3), the defendant knows and intends that he or she is engaging in sexual activity with a young person. In addition, the defendant knows that the activity is regarded as immoral and/or improper by large segments of society. Moreover, the defendant is aware that "consent" by persons who are too young is ineffective. Although in a particular case the defendant may honestly but mistakenly believe, because of representations or appearances, that the other person is above the age of consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the young person is not above the age of consent. As the majority opinion points out, "the traditional view [is] that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage...." It seems to me that the above-mentioned knowledge factors, and particularly the mental ability to appreciate that one is taking a risk, constitute the mens rea of the offenses defined by §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2) and 464C(a)(3). In enacting these provisions, the General Assembly assumed that a defendant is able to appreciate the risk involved by intentionally and knowingly engaging in sexual activities with a young person. There is no indication that the General Assembly intended that criminal liability attach to one who, because of his or her mental impairment, was unable to appreciate that risk.

It is unreasonable to assume that the Legislature intended for one to be convicted under § 463(a)(3), or under any of the other statutes proscribing sexual activity with underage persons, regardless of his or her mental state. Suppose, for example, that Raymond Garnett had not had an I.Q. of 52, but rather, had been more severely mentally retarded as was the young woman involved in Wentzel v. Montgomery Gen. Hosp., 293 Md. 685, 447 A.2d 1244, cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983). The mentally retarded person in Wentzel had an I.Q. of 25-30, was physiologically capable of bearing a child, but was unable to comprehend the act of sexual intercourse, or even to understand the difference between the sexes. If someone so disabled, having reached Raymond's chronological age, then had "consensual" sexual intercourse with a person younger than fourteen years of age, I do not believe that he or she would have violated Art. 27, § 463(a)(3). Under the view that §§ 463(a)(3), 464A(a)(3), 464B(a)(3), etc., define pure strict liability offenses without any regard for the defendant's mental state, presumably a 20 year old, who passes out because of drinking too many alcoholic beverages, would be guilty of a sexual offense if a 13 year old engages in various sexual activities with the 20 year old while the latter is unconscious. I cannot imagine that the General Assembly intended any such result.

An impaired mental condition may show the absence of mens rea, depending upon the circumstances. See, e.g., Simmons v. State, 313 Md. 33, 39 n. 3, 542 A.2d 1258, 1261 n. 3 (1988); Hoey v. State, 311 Md. 473, 494-495, 536 A.2d 622 (1988). In light of the defendant Garnett's mental retardation, and its effect upon his knowledge and comprehension, he may or may not have had the requisite mens rea. As previously mentioned, the majority opinion itself acknowledges that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend standards of sexual morality. The problem in this case is that the trial judge's view of the statute, which the majority adopts, precluded an exploration into the matter.

The majority points out that the trial court would not allow testimony that Erica and her friends had told the defendant that she was 16 years old. The trial court, however, went further. The court would not allow the defendant to testify concerning his knowledge. More importantly, the trial judge took the position that the offense proscribed by § 463(a)(3) is "a strict liability offense" and that the only requirements for conviction were that "the defendant had sexual intercourse with Erica Frazier, that at that time she was 13 years of age, [and] at that time the defendant was more than 4 years older than she. These are the only requirements that the State need prove beyond a reasonable doubt." The trial court's position that the offense lacked any mens rea requirement, and that the defendant's mental state was wholly immaterial, was, in my view, erroneous.

I would reverse and remand for a new trial.

ROBERT M. BELL, Judge, dissenting.

"It may be possible to conceive of legislation ... so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases must be rare indeed; and whenever they do occur the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation."

Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 368 (1989), quoting State v. Clottu, 33 Ind. 409, 410-11 (1870).

I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3)^[1] was intended to be a strict liability statute. See majority opinion at 585. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3)^[2] does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (1934).

In the case sub judice, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.^[3]

I. Mens Rea Generally

Generally, a culpable mental state, often referred to as mens rea, see Wharton's Criminal Law, § 27, or intent, is, and long has been, an essential element of a criminal offense. Morissette v. United States, 342 U.S. 246, 251-52, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); Tate v. State, 236 Md. 312, 203 A.2d 882 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1953); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); Fenwick v. State, 63 Md. 239, 240-41 (1885). A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); see also Wharton's Criminal Law, § 27, citing United States v. Fox, 95 U.S. 670, 24 L.Ed. 538 (1877). Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.

The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept — crime as a compound concept — gained early acceptance in the English Common law and "took deep and early root in American soil."^[4] 342 U.S. at 251-52, 72 S.Ct. at 244, 96 L.Ed. at 294 (footnote omitted). In that case, Mr. Justice Jackson stated the proposition thusly:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Id. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 294 (footnotes omitted).

In Morissette, (id. at 247-48, 72 S.Ct. at 242, 96 L.Ed. at 292-93), the defendant, a scrap iron collector, went onto a government bombing range, where bomb casings were piled haphazardly. Morissette loaded the casings onto his truck in broad daylight and took them. He was indicted for "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" property of the United States, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641. He sought to defend on the basis that he thought the casings were abandoned, unwanted, and of no value to the government. The trial court refused to permit evidence on that point, which was affirmed on appeal. The Supreme Court reversed, holding that where intent is an essential element of the crime charged, its existence is a question of fact for the jury, and "the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. at 274, 72 S.Ct. at 255, 96 L.Ed. at 306. It was in this context that the Court discussed the importance of intent. The Court concluded:

The unanimity with which they [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge or "mens rea," to signify an evil purpose or mental culpability.

Id. at 252, 72 S.Ct. at 244, 96 L.Ed. at 294-95.

More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, pursuant to Article 27, § 36(a), a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, id. at 437-39, 614 A.2d at 968-69, we rejected the State's argument that no intent was required. Id. at 444, 614 A.2d at 971. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon. Id. at 444, 614 A.2d at 971.

Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Morissette, 342 U.S. at 275, 72 S.Ct. at 256, 96 L.Ed. at 307, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943). Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 118-19 (1965); see also People v. Hernandez, 61 Cal.2d 529, 536, 39 Cal. Rptr. 361, 365, 393 P.2d 673, 677 (1964) ("in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein criminal intent is lacking."); Singer, supra, at 397. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, see Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), or a comparable state constitutional provision. See infra.

II. Strict Liability Crimes

Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. See Morissette, 342 U.S. at 251-52 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.

A.

In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. Richard A. Tonry, Statutory Rape: A Critique, La.L.Rev. 105 (1965). One of them consists of "public welfare" offenses. See id.; see also Dawkins, 313 Md. 638, 547 A.2d 1041. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, see Tonry, supra, at 106, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses. Singer, supra, at 389.

In Dawkins, 313 Md. at 644-645, 547 A.2d at 1044-45, this Court discussed the development of public welfare offenses and noted their characteristics:

"Public Welfare Offenses" are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.... Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales or misbranded articles, and sales or purchases in violation of anti-narcotics laws.... These offenses commonly involve light fines or penalties. .. . "[T]he penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest...." Additionally, the purpose of the penalty is to regulate rather than to punish behavior.... While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring....

313 Md. at 645, 547 A.2d at 1044 (citations omitted). The Supreme Court has also commented on such offenses, observing:

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296. To like effect,

... public welfare offenses are new crimes, created solely by legislative enactments in the nature of police regulations. Moreover, these offenses are not strictly criminal, even though traditional criminal sanctions are relied upon, since the primary purpose of the legislature is neither punishment nor correction, but rather regulation.

Myers, supra, at 114 (footnote omitted).

Obviously, and the majority concurs, see majority opinion at 579, "statutory rape" is not merely a public welfare offense; it simply does not "fit" the characteristics of such an offense: it is a felony, not a misdemeanor. In striking contrast to "other strict liability regulatory offenses and their light penalties," majority opinion at 579, the potential penalty of 20 years imprisonment is not a light penalty; unlike the "garden variety" strict liability penalty, the penalty under section 463(a)(3), is neither so insignificant that it can be ignored as a criminal sanction, see Singer, supra, at 394, nor so slight that the fate of the defendant can be ignored, see Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31, at 219 (1972) ("The greater the possible punishment, the more likely some fault is required; and conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault."); and section 463's primary purpose is to penalize the "rapist", not to correct his or her behavior.^[5]

B.

The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic,^[6] bigamy,^[7] adultery, and statutory rape crimes. See Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8; Tonry, supra, at 106. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." See Benjamin L. Reiss, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377, 381-82 (1992).

The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state. LaFave and Scott, supra, § 47, at 360. The elimination of a mens rea element for statutory rape is rationalized by focusing on the defendant's intent to commit a related crime. Reiss, supra, at 381. In other words, if fornication^[8], engaging in sexual intercourse out of wedlock, see generally Model Penal Code, § 213.6, Comment at 430-39, is a crime, a defendant intending to engage in sex out of wedlock is made to suffer all of the legal consequences of that act. Statutory rape is such a legal consequence when the other participant is below the age of consent. Reiss, supra, at 382. The theory is premised, in short, upon the proposition that, as to certain crimes, "a `guilty mind' in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally or knowingly engage in the acts proscribed in the statute." See LaFave and Scott, supra, § 47, at 361.

The seminal case in this area is Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 110 and Model Penal Code, § 213.6, Comment at 414 n. 6. There, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of the father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he, in fact, was committing, it being wrong to remove a daughter, even one over 16, from her father's household.

The lesser legal wrong theory does not provide a viable rationale for holding a defendant strictly liable for statutory rape where premarital sex is not criminal.^[9] Reiss, supra, at 382. See LaFave and Scott, supra, § 47, at 361 ("[W]here fornication is itself not criminal it [statutory rape] should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has intercourse").^[10] Fornication is not a crime in Maryland. See Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). Accordingly, in Maryland, there is no underlying offense from which to transfer intent. Moreover,

[a] man who engages in consensual intercourse in the reasonable belief that his partner has reached [the age of consent^[11]] evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors. In short, he has demonstrated neither intent nor inclination to violate any of the interests that the law of statutory rape seeks to protect. At most, he has disregarded religious precept or social convention. In terms of mental culpability, his conduct is indistinguishable from that of any other person who engages in fornication. Whether he should be punished at all depends on a judgment about continuing fornication as a criminal offense, but at least he should not be subject to felony sanctions for statutory rape.

Model Penal Code § 213.6, Comment at 415.

C.

In utilizing the moral wrong theory, State legislatures seek to justify strict criminal liability for statutory rape when non-marital sexual intercourse is not a crime on the basis of society's characterization of it as immoral or wrong, i.e., malum in se.^[12] Reiss, supra, at 382. The intent to commit such immoral acts supplies the mens rea for the related, but unintended crime; the outrage upon public decency or good morals, not conduct that is wrong only because it is prohibited by legislation, i.e., malum prohibitum, is the predicate.

There are significant problems with the moral wrong theory. First, it is questionable whether morality should be the basis for legislation or interpretation of the law. See Tonry, supra, at 113; see also Singer, supra, at 338 (moral blame should be abolished as a predicate for criminal liability). Immorality is not synonymous with illegality; intent to do an immoral act does not equate to intent to do a criminal act. Inferring criminal intent from immorality, especially when the accused is not even aware that the act is criminal, seems unjustifiable and unfair. See Reiss, supra, at 382. In addition, the values and morals of society are ever evolving. Because sexual intercourse between consenting unmarried adults and minors who have reached the age of consent is not now clearly considered to be immoral, the moral wrong theory does not support strict criminal liability for statutory rape.

Second, classifying an act as immoral, in and of itself, divorced from any consideration of the actor's intention, is contrary to the general consensus of what makes an act moral or immoral. See Tonry, supra, at 113. Ordinarily, an act is either moral or immoral depending on the intention of the actor. Id., citing Holmes, Early Forms of Liability, in The Common Law 7 (Howe ed. 1963), citing Bradley, Ethical Studies, Essay 1 (1876) ("Even a dog distinguishes between being stumbled over and being kicked.").

Third, the assertion that the act alone will suffice for liability without the necessity of proving criminal intent is contrary to the traditional demand of the criminal law that only the act plus criminal intent is sufficient to constitute a crime. See Tonry, supra, at 113. "Moral duties should not be identified with criminal duties," and, thus, when fornication is itself not criminal it should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has had intercourse. See Hernandez, 61 Cal.2d at 534, 39 Cal. Rptr. at 364, 393 P.2d at 676; see also Myers, supra.

Therefore, although in the case sub judice, the defendant engaged in sexual relations with a girl 13 years old, a minor below the age of consent, his conduct is not malum in se, see 4 W. Blackstone, Commentaries[*] 210, and, so, strict liability is not justified.

III. Mistake of Fact

Generally, a mistake of fact negates the mental state required to establish a material element of the crime. LaFave and Scott, supra, § 47, at 356. A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not entertain the culpable mental state required for the commission of the offense. See Wharton's Criminal Law § 76.^[13] Compare Richmond v. State, 330 Md. 223, 241-42, 623 A.2d 630, 638 (1993) (Bell, J., dissenting) (In case of self-defense, defendant who acts in self-defense is completely exonerated upon findings that he or she subjectively believed that his or her actions were necessary and, viewed objectively, that they were, in fact, necessary; in case of imperfect self-defense, defendant who subjectively believes that his or her actions were necessary, but, objectively, they were not, is not completely exonerated, although lesser sentence is appropriate).

Statutory rape is defined as sexual intercourse, by a person four or more years older, with a person under the age of 14. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463(a)(3).^[14] That statute conclusively presumes that a person under that age is incapable of legally consenting to sexual intercourse.^[15] Rau v. State, 133 Md. 613, 105 A. 867 (1919) (consent is not an element of assault with intent to have carnal knowledge of a female child under 14 years);^[16] Ollis v. State, 44 Ga. App. 793, 163 S.E. 309 (1932); Golden v. Commonwealth, 289 Ky. 379, 158 S.W.2d 967 (1942). That the female is incapable of consenting means that any act of intercourse in which she engages, even with her consent, is conclusively presumed to have been against her will. See Tonry, supra, at 106. Consequently, a person engaging in intercourse with a female, whom he knows to be under 14 may not set up her consent as a defense. This does not mean, however, that one who does not know that the female is under 14 should not be able to set up his mistake of fact as a defense. This is because the closer a minor is to the age of consent, the more the appearance and behavior of that minor can be expected to be consistent with persons who have attained the age of consent. Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990) (strict liability inappropriate where victim in 13-16 age range); Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Indeed, one may plausibly mistake a minor 13 years old as being of the statutory age of consent.

A girl 13 years old may appear to be, and, in fact, may represent herself as being, over 16. If she should appear to be the age represented, a defendant may suppose reasonably that he received a valid consent from his partner, whom he mistakenly believes to be of legal age, only to find that her consent is legally invalid. In this situation, the majority holds, his reasonable belief as to the girl's age and consequent lack of criminal intent are no defense; the act alone suffices to establish guilt. But it is when the minor plausibly may represent that she has attained the age of consent that need for a defendant to be able to present a defense based on his or her belief that the minor was of the age to consent is the greatest.

The California Supreme Court in Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law 184-85 (1951), has recognized mistake of age as a defense to statutory rape. There, the defendant was convicted of statutory rape pursuant to a California law setting a consent age limit of 18 years of age. The prosecutrix was 17 years and 9 months old. The court held that an offer of proof of defendant's reasonable belief that the prosecutrix had reached the age of consent was a defense to statutory rape. 61 Cal.2d at 536, 39 Cal. Rptr. at 365, 393 P.2d at 677. The court reasoned that the imposition of criminal sanctions required conduct accompanied by a specific mental state, i.e., "the joint operation of act and intent." 61 Cal.2d at 532, 39 Cal. Rptr. at 363, 393 P.2d at 675. It opined (id. 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law at 184 and 185 (1951)):

"When the law declares that sexual intercourse with a girl under the age of ten years is rape, it is not illogical to refuse to give any credence to the defense, `I thought she was older, and I therefore did not believe that I was committing a crime when I had sexual intercourse with her.' * * * But when age limits are raised to sixteen, eighteen, and twenty-one, when the young girl becomes a young woman, when adolescent boys as well as young men are attracted to her, the sexual act begins to lose its quality of abnormality and physical danger to the victim. Bona fide mistakes in the age of girls can be made by men and boys who are no more dangerous than others of their social, economic and educational level. * * * Even if the girl looks to be much older than the age of consent fixed by the statute, even if she lies to the man concerning her age, if she is a day below the statutory age sexual intercourse with her is rape. The man or boy who has intercourse with such girl still acts at his peril. The statute is interpreted as if it were protecting children under the age of ten."

Moreover, Myers, supra, at 121, concurs that reasonable mistake of age, should be a defense to statutory rape where there is no threat of force. He explains his position thusly:

[T]here are many girls between the ages of twelve and fifteen who are so obviously immature in physique, dress, and deportment that they would be approached only by a person psychologically disturbed or coming from a subculture where the acceptable age-range is lower than the usual level in the United States. However, there are even more girls from twelve to fifteen whose appearance and behavior place them within, or on the vague border of, the average male's category of desirable females. By the middle teens, most girls are sufficiently developed physically and are sufficiently aware of social attitudes for a man to have to use considerable force or some definite threat if the girl objects to sexual contact. (Footnote omitted).

Thus, it has been observed that, "[b]y the middle teens most girls have reached a point of maturity which realistically enables them to give meaningful, although not legal, consent." Id. at 122. It is for this reason that "[i]ntercourse with a girl who is in her middle to late teens lacks the qualities of abnormality and physical danger that are present when she is still a child.... It is clear that the element of `victimization' decreases as the girl grows older and more sophisticated."^[17] Id. at 121-22. See e.g. State v. Guest, 583 P.2d 836 (Alaska 1978); State v. Elton, 680 P.2d 727 (Utah 1984); Powe v. State, 389 N.W.2d 215 (Minn.App. 1986); Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990).

The Model Penal Code, long an adversary of strict liability crimes, proposes two categories of statutory rape. The first, would impose strict liability on one who has sexual relations with a child under 10. See generally Model Penal Code and Commentaries, § 213.6, Comment at 415-16.^[18] See also Del. tit. 11, § 772(a); Ohio § 2907.02(A)(3); Pa. tit. 18, § 3102; W. Va. § 61-8B-13(b). The second category would encompass minors under the critical statutory age of consent, but over 10 years old. Model Penal Code, § 213.6, Comment at 415-16. Having sexual relations with a child falling in this category would still be a crime, but a defendant could escape punishment if he or she proved that he or she was mistaken as to the child's age. Both categories are consistent with the prevailing contemporary view, and with the common law, that a child under 10 years old is too young to understand the nature and quality of his or her act, Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Commentaries § 212, and that a child over 10 years of age ordinarily is aware of social attitudes and the nature of sexual contact. See Myers, supra, at 121; see also Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Thus, the Code would allow the defendant to defend a charge of rape involving a minor falling in the second category on the basis that he or she reasonably believed the child to be above the critical age. See Model Penal Code § 213.6, Comment at 416.^[19]

In the case sub judice, the defendant does not dispute that he had sexual relations with the 13 year old prosecutrix. He seeks only to be able to defend himself against being labeled a rapist. He may only do so, however, if he is allowed to present evidence that he acted under a mistake of fact as to the prosecutrix's age, that he believed, and reasonably so, that she was above the age of consent. The proof he proposed to present to prove his defense was that the victim and her friends told him that the victim was 16 years old. He should have been allowed to show that he lacked the "guilty mind" to have sex with a 13 year old.

IV. Constitutional Limitations on Strict Criminal Liability

A State Legislature does have the power to define the elements of the criminal offenses recognized within its jurisdiction. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434, 439 (1985); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957); McCallum v. State, 81 Md. App. 403, 413, 567 A.2d 967, 971 (1990), aff'd, 321 Md. 451, 583 A.2d 250 (1991). Cf. Singer, supra, at 389. In fact, the Supreme Court has said: "There is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231. Accordingly, a State legislature may constitutionally prescribe strict liability for public welfare offenses, discussed supra, committed within its boundaries. But "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United Gypsum Company, 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978) (citations omitted). See Morissette, 342 U.S. at 263, 72 S.Ct. at 250, 96 L.Ed. at 300 (mere omission of any mention of intent will not be construed as eliminating element from crime announced); McCallum, 321 Md. at 456, 583 A.2d at 252. Indeed, criminal offenses requiring no mens rea have a "generally disfavored status." McCallum, 321 Md. at 457, 583 A.2d at 252-253.

To recognize that a State legislature may, in defining criminal offenses, exclude mens rea, is not to suggest that it may do so with absolute impunity, without any limitation whatsoever. The validity of such a statute necessarily will depend on whether it violates any provision of the federal, see Smith, 361 U.S. at 152-53, 80 S.Ct. at 218, 4 L.Ed.2d at 211, or applicable state, see Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946) (holding that Article 20, Maryland Declaration of Rights, guaranteeing a defendant a trial of facts as "one of the greatest securities of the lives, liberties and estate of the people," voids a rule which substitutes an irrebuttable presumption for facts), constitution. It is ordinarily the due process clause, either of the federal constitution, or the corresponding provision of the appropriate state constitution, which will determine its validity.^[20] See McMillan v. Pennsylvania, 477 U.S. 79, 83, 85-86, 106 S.Ct. 2411, 2414-16, 91 L.Ed.2d 67, 74-76 (1986); Liparota, 471 U.S. at 424 n. 6, 105 S.Ct. at 2087 n. 6, 85 L.Ed.2d at 439 n. 6; Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281, 287 (1977); Smith, 361 U.S. at 149, 80 S.Ct. at 217, 4 L.Ed.2d at 209; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943); Chaplinski v. New Hampshire, 315 U.S. 568, 570-71, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031, 1034-35 (1942); Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575, 578 (1929); McFarland v. American Sugar Refining Company, 241 U.S. 79, 85-86, 36 S.Ct. 498, 501, 60 L.Ed. 899, 904 (1916); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855) (Due Process clause restricts legislative power arbitrarily to declare what is "due process of law"). Mahoney, 187 Md. at 87, 48 A.2d at 603; Johns v. State, 55 Md. 350, 363 (1881); McLain, Maryland Practice, "Irrebuttable Presumptions and Constitutional Limitations In Criminal Cases," § 303.1. See generally L. Tribe, American Constitutional Law, Ch. 10 (2nd 1988).

Due process, whether pursuant to that clause of the Fourteenth Amendment^[21] or the corresponding clause in a state constitution, protects an accused from being convicted of a crime except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508, 512 (1975). It thus implicates the basic characteristics, if not the fundamental underpinnings, of the accusatorial system. In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375. See Gilbert & Moylan, supra, § 45.0, 589-590.

Under our system of justice, a person charged with a crime is presumed innocent until he or she is found guilty beyond a reasonable doubt. That means that he or she may not be found guilty until the State has produced evidence sufficient to convince the trier of fact, to the required extent, of that person's guilt. Moreover, although not required to do so, the defendant may present a defense, in which event the evidence the defendant produces must be assessed along with that of the State in determining whether the State has met its burden. The State's burden is not reduced or changed in any way simply because the defendant elects not to interpose a defense. In those cases, the defendant may still seek to convince the trier of fact that the State has not met its burden of proof by arguing that the inferences to be drawn from the evidence the State has produced simply is not sufficient to support guilt.

Irrebuttable presumptions are rules of substantive law. McLain, §§ 301.1, 303.1; Gilbert & Moylan, supra, § 45.12. See also 9 J. Wigmore, Evidence, § 2492 at 307-08, "Conclusive Presumptions" (Chadbourne Rev. 1981), in which it is explained:

Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.

Thus, irrebuttable presumptions help to define the issues pertinent to a particular kind of case, McLain § 303.1 at 241, and, in that sense, because the substantive law determines the issues to be proved, govern the admission of evidence, thus establishing the perimeters of relevance and materiality. Id., § 301.1 at 183. They may be statutory, McLain, § 303.1 at 182 n. 2, or have their origin in the common law. See In re Davis, 17 Md. App. 98, 100 n. 1, 104, 299 A.2d 856, 858 n. 1, 860 (1973); Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951). Accordingly, at common law, children under the age of 7 were, and still are, irrebuttably presumed to be incapable of forming criminal intent, Davis, and children under 4 years of age, were, and are, irrebuttably presumed to have been incapable of contributory negligence. As a matter of substantive law, therefore, children of those ages could not then, and may not now, be prosecuted under the criminal law, be sued for negligence, or held to be contributorially negligent. Similarly, section 463(a)(3) reflects the irrebuttable presumption that a child under 14 years of age is incapable of consenting to sexual intercourse. See Rau, 133 Md. at 613-616, 105 A. at 867.

When the Legislature enacts a strict liability crime, i.e., promulgates a statute which excludes as an element, the defendant's mental state, it essentially creates an irrebuttable presumption that the defendant's mental state, i.e., knowledge or intent, is irrelevant. See McLain, § 301.1 at 183. That is the case with regard to statutory rape. Notwithstanding that it chooses to accomplish that result by defining the crime, rather than by means of an express presumption, which relieves the State of its burden of proof, the fact remains that the result is exactly the same: anyone who has sexual relations with a female under the age of 14 is treated as if he knew that she was under 14 and so intended to have such relations with a 14 year old female. It thus relieves the State of any duty to produce relevant evidence to prove the defendant's mental state, that he knew the prosecutrix's age, and prevents the defendant from proving the contrary. Because the irrebuttably presumed fact does not follow inextricably from the fact of sexual relations with a 14 year old, its use to relieve the State of its burden of proof to prove the defendant's intent in that regard runs afoul of the due process clause of the Fourteenth Amendment.

Irrebuttable, mandatory, presumptions have long been disfavored and held to be violative of due process. Vlandis v. Kline, 412 U.S. 441, 446, 453, 93 S.Ct. 2230, 2233, 2237, 37 L.Ed.2d 63, 68, 73 (1973), and cases therein cited. One of the bases for the disfavor is that they may conflict with the overriding presumption of innocence which the law accords to the accused and invade the fact finding process, which, in a criminal case, is the exclusive province of the jury. See Carella v. California, 491 U.S. 263, 268, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218, 223 (1989) (Scalia, J. concurring) (jury instructions relieving the prosecution of its burden of proof violate a defendant's due process rights; whether he or she is believed ordinarily is a question of fact for the jury to decide, not one of law for the Legislature). The more usual reason for disfavoring irrebuttable presumptions, however, is that the fact conclusively presumed "is not necessarily or universally true in fact," Vlandis, 412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, and, so, excusing the proponent of that fact from having to establish it renders the statute "arbitrary, illegal, capricious and hence unconstitutional." Mahoney, 187 Md. at 87, 48 A.2d at 603.^[22] This is especially so when the presumed fact bears little or no relation to the statute's expressed objective. Vlandis, 412 U.S. at 448-49, 93 S.Ct. at 2234-35, 37 L.Ed.2d at 69-70. Nor, "where there are other reasonable and practicable means of establishing the pertinent facts on which the State's objective is premised," id. at 451, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, may a conclusive presumption, not otherwise appropriate, be rendered acceptable or, because it is a matter of "administrative ease and certainty," id., the State's burden reduced.

The statute invalidated in Vlandis conclusively presumed that the applicant's residence when he applied for admission to a Connecticut University remained his residence throughout his college years. At issue in Mahoney was Rule 146 of the Maryland Racing Commission, the pertinent portion of which provided:

"(d) If the Commission finds from analysis of the saliva or urine, or blood taken from a horse on the day of a race in which the horse ran, or from other competent evidence, that any drug had been administered to the horse within forty-eight (48) hours before the race, the trainer shall be subject to the penalties prescribed in subsection (e) hereof, whether or not he administered the drug, or knowingly or carelessly permitted it to be administered. The fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered."

187 Md. at 83-84, 48 A.2d at 602. See also United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir.1985) (interpreting the Migratory Bird Treaty Act, a strict liability statute); Guest, 583 P.2d at 838-39 (holding Alaska's statutory rape statute unconstitutional as a violation of due process).

Smith, Tot, and Lambert are also apposite. The ordinance at issue in Smith made it unlawful "for any person to have in his possession any obscene or indecent writing, [or] ... books [i]n any place of business where ... books ... are sold or kept for sale." 361 U.S. at 148, 80 S.Ct. at 216, 4 L.Ed.2d at 208. It did not require proof of any mental element on the part of the defendant. Id. at 149, 80 S.Ct. at 216, 4 L.Ed.2d at 208. Noting, but rejecting, the State's attempt to "analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example," the Court observed (id. at 152-153, 80 S.Ct. at 218, 4 L.Ed.2d at 211 (citation omitted)):

The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors — in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used.... His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller.

In Lambert, a Los Angeles ordinance required convicted felons who remained in the city for more than five days to register with the police. It did not contain any "knowledge" or mens rea requirement. The Supreme Court held:

actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.... Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine or in a language foreign to the community.

355 U.S. at 229-30, 78 S.Ct. at 243-44, 2 L.Ed.2d at 232.

Similarly, in Tot, holding that section 2(f) of the Federal Firearms Act violated the Due Process Clauses of the Fifth and Fourteenth Amendment, 319 U.S. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524, the Court overturned the defendant's conviction. It held that Congress had no power to create the presumptions contained in that section to wit: that, from the defendant's prior conviction of a crime of violence and his present possession of a firearm, it is conclusively presumed that the firearm was received in interstate or foreign commerce, after the effective date of the statute. Id. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524. Rejecting the Government's argument that it was entitled to the presumption because the defendant had the better means of information, the Court said (id. at 469, 63 S.Ct. at 1246, 87 L.Ed. at 1525):

But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. (footnote omitted).

In the case sub judice, by consciously and intentionally excluding from section 463(a)(3) any requirement that the defendant's knowledge of the victim's age be proven, the Legislature has relieved the State of that obligation; without that legislation, of course, the State's burden would have included proving, at the very least, that the defendant knew the prosecutrix's age. On the issue of the defendant's intent, section 463(a)(3) only requires proof of the victim's age and its differential with that of the defendant. As such, once those facts have been proven, it is conclusively established that the defendant's intent was to have sexual relations with a girl of the proscribed age.^[23] As we have seen, not requiring proof of the defendant's intent has been accomplished by so defining the crime, not by means of an express presumption. Again, that is of no real consequence, however. By defining the crime, the Legislature prescribes what must be proven. In other words, by that process, it has determined what the rule of substantive law will be — by defining the crime so as to exclude proof of knowledge or intent, the Legislature naturally precludes the admission of any evidence bearing on the element, the proof of which it has excused. In so doing, it has made that element — intent or knowledge of the victim's age — irrelevant to the definition of the crime and, hence, irrebuttable. Wigmore, § 2492 at 307-08. It follows, therefore, that, once the other elements are proven, the defendant's knowledge or intent is necessarily established as well. It does not necessarily follow, however, that simply because the victim is 13 years old, the defendant had knowledge of her age or intended to have sexual relations with a 13 year old girl. He may have had knowledge or intent, to be sure, but, by the same token, he may not have. The defendant should have been permitted to present evidence on the issue.

In her treatise, Professor McLain, echoing the authorities, offered an example of the Legislature redefining a crime to exclude an element, without relying on an irrebuttable presumption. She referred to Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 286A^[24] which punishes a defendant for possession of certain large amounts of drugs, without regard to intent. That is not comparable to the case sub judice. While, under the statute, it is true that the possession of the proscribed drugs is a crime without proof of the intent with which they are possessed, the State is not relieved of its responsibility of proving both that they were brought into Maryland and that the possession was a knowing possession. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). In the case of statutory rape all aspects of the defendant's knowledge, save proof of the intercourse itself, has been rendered, by definition, irrelevant and, so, off limits for the trial. That is, I repeat, by no means comparable.

The critical issue in a statutory rape case is "the age of the rape victim." That is true because the victim's age serves two related, but distinct purposes: (1) it establishes the victim's capacity to consent and (2) it represents notice to a defendant of proscribed conduct. The Maryland statute seeks irrebuttably to presume not only that the victim could not consent by virtue of age, but also that, when a defendant engages in sexual relations with a minor under the age of 14, he has notice of that fact. Assuming that, based on the victim's age, the Legislature could legitimately exclude consent as an element of the crime,^[25] it absolutely should not be able to excuse the State from its obligation to prove the defendant's knowledge of the victim's age or prevent the defendant from producing evidence on that issue. No matter how forcefully it may be argued that there is a rational relationship between the capacity to consent and the age the Legislature selected, given the tremendous difference between individuals, both in appearance and in mental capacity, there can be no such rational relationship between the proof of the victim's age and the defendant's knowledge of that fact.^[26] See Tot, 319 U.S. at 469, 63 S.Ct. at 1245-46, 87 L.Ed. at 1525. Mahoney, 187 Md. at 87, 48 A.2d at 603.

The notice element of the crime of statutory rape is different from the consent element, in any event. A defendant who has knowledge that a victim has consented, in fact, to sexual relations, whether the consent is effective or not, is not thereby placed on notice as to the victim's age. Knowledge of consent simply does not equate with knowledge of age, just as intent to engage in sexual relations does not reveal, without more, with whom. Moreover, it is not a crime to engage in sexual relations with a minor who is at least 16 years old; it may be morally wrong, in the minds of most Americans, but it is not a crime. It is only a crime if the defendant engages in such relations with a minor under a specified age, i.e., 14, as in section 463(a)(3), or 14 or 15, as in section 464C. But even when the act engaged in is necessarily a crime, e.g. possession of contraband, knowledge of the illegality — that the contraband is knowingly possessed — is still required. See Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). Consequently, where the activity would be legal or, at least, not illegal, but for the ages of the participants, at the very least, the defendant's knowledge of the victim's age must be proven. Otherwise, a defendant who does not know he is acting illegally could be convicted.

Moreover, there is precedent that a felony statute which prescribes substantial penalties and conviction of which will subject the defendant to significant social stigma, violates due process unless it requires the State to prove intent or knowledge, Wulff, 758 F.2d at 1125; Holdridge v. United States, 282 F.2d 302 (8th Cir.1960); United States v. Heller, 579 F.2d 990 (6th Cir.1978); Guest, 583 P.2d 836 (Ala. 1978).^[27]

In Wulff, the defendant was charged with violation of the felony provisions of the Migratory Bird Treaty Act, 16 U.S. § 707(b). On motion by the defendant, the trial court dismissed the charges, holding that the provisions under which he was charged violated due process, no proof of intent being required. On appeal by the Government, the Court of Appeals affirmed. 758 F.2d at 1122. That court perceived the issue to be "whether the absence of a requirement that the government prove some degree of scienter violates the defendant's right to due process." In resolving that issue, it observed, relying on Holdridge, supra, that "a felony conviction under the act does not require proof of scienter; the crime is not one known to the common law, and ... the felony penalty provision is severe and would result in irreparable damage to one's reputation." Id. The court then held:

We are of the opinion that in order for one to be convicted of a felony under the MBTA, a crime unknown to common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter. Otherwise, a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation. This, in our opinion, the Constitution does not allow.

Id. at 1125. See Holdridge, 282 F.2d at 310, in which it is said:

[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.

A similar result was reached by the Supreme Court of Alaska in Guest, involving a charge of statutory rape. Significantly, having held that, under its precedents, a reasonable mistake of age defense was permitted, the court submitted:

[W]here a particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional.... Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.

Id. at 839 (citations and footnote omitted).

Similarly, the prosecution of statutory rape in Maryland necessarily brings into conflict the State's interests in protecting minors and defendants' due process rights because section 463(a)(3) operates "`to exclude elements of knowledge and diligence from its definition,'" Ransom, 942 F.2d at 776, quoting Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231, and, thus, removes reasonable ignorance of the girl's age and consequent lack of criminal intent as a defense. The failure of section 463(a)(3) to require proof of a culpable mental state conflicts both with the substantive due process ideal requiring that defendants possess some level of fault for a criminal conviction of statutory rape and the procedural due process ideal requiring that the prosecution overcome the presumption of innocence by proof of the defendant's guilt beyond a reasonable doubt. Notwithstanding the maxim that criminal statutes dispensing with the intent requirement and criminal offenses requiring no mens rea have a "generally disfavored status," the rationale of parts V and VI of the majority opinion is that the legislature has absolute authority to create strict liability crimes. For the reasons reviewed, I do not agree. On the contrary, I believe that due process both under the Fourteenth Amendment and under the Declaration of Rights, precludes strict criminal liability for statutory rape. Interpreting section 463(a)(3) as the majority does has the effect of largely relieving the State of its burden of proof and burden of persuasion. By making the defendant's intent, and, hence, blameworthiness, irrelevant, the Legislature has made inevitable, the petitioner's conviction. Moreover, upon conviction of the felony offense of statutory rape under section 463(a)(3), in addition to a substantial penalty of up to 20 years imprisonment, a defendant's reputation will be gravely besmirched. Where there is no issue as to sexual contact, which is more likely than not to be the case in statutory rape prosecutions, proof of the prosecutrix's age is not only proof of the defendant's guilt, it is absolutely dispositive of it and, at the same time, it is fatal to the only defense the defendant would otherwise have. So interpreted, section 463(a)(3) not only destroys absolutely the concept of fault, but it renders meaningless, in the statutory rape context, the presumption of innocence and the right to due process.

I respectfully dissent.

[1] "If any person shall carnally know and abuse any woman-child under the age of ten years, every such carnal knowledge shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging ... or undergo a confinement in the penitentiary for a period not less than one year nor more than twenty-one years." Ch. 138, Sec. 4, 7th. (1809) compiled in 1 Dorsey's General Public Statutory Law and Public Local Law of the State of Maryland 575 (1840). The minimum age of the child was raised from 10 years to 14 years in Chapter 410 of the Acts of 1890.

[2] With respect to the law of statutory rape, the Model Penal Code strikes a compromise with its general policy against strict liability crimes. The Code prohibits the defense of ignorance or a reasonable mistake of age when the victim is below the age of ten, but allows it when the critical age stipulated in the offense is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The drafters of the Code implicitly concede that sexual conduct with a child of such extreme youth would, at the very least, spring from a criminally negligent state of mind. The available defense of reasonable mistake of age for complainants older than ten requires that the defendant not have acted out of criminal negligence. See the Comment to § 213.6, at 415-416.

[3] Myers notes, too, that European law upholds mistake of age as a defense to statutory rape. Id. at 106, and n. 12.

[4] See also Ariz. Rev. Stat. Ann. § 13-1407(B) (1989, 1992 Cum.Supp.) (age 14); Ark. Code Ann. § 5-14-102 (1987) (age 14); Col.Rev.Stat. § 18-3-406 (1973, 1986 Repl.Vol.) (age 15); Ind. Code Ann. § 35-42-4-3 (1985 Repl.Vol.) (age 12); Mo. Ann. Stat. § 566.020 (1979) (age 14); Mont. Code Ann. § 45-5-511(1) (1991) (age 14); N.D. Cent. Code § 12.1-20-01.1 (1991 Supp.) (age 15); Wyo. Stat.Ann. § 6-2-308 (1988) (age 12).

[5] See also Ill.Comp.Stat. ch. 720, § 5/12-17(b) (1993) (defense available for offenses defined as criminal sexual abuse); Me. Rev. Stat. Ann. tit. 17-A, § 254.2 (1983, 1992 Cum.Supp.) (available for charge of sexual abuse of minors); Ohio Rev.Code Ann. § 2907.04 (1953, 1993 Repl. Vol.) (available for charge of corruption of minors).

[6] Both the California Penal Code and the Utah Criminal Code included provisions requiring a concurrence of act and intent to constitute a crime. The Utah Criminal Code further contained a provision authorizing convictions for strict liability offenses clearly defined as such. See Hernandez, supra, 39 Cal. Rptr. at 363, 393 P.2d at 675; Elton, supra, 680 P.2d at 728-729.

[7] The House version read in pertinent part: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse: ... (2) with another person who is under 14 years of age and the person performing the act is at least four or more years older than the victim." As discussed earlier, the offense was reduced to second degree rape in 1977.

[1] In this connection, it should be noted that the defendant-appellant, in his opening brief in this Court, made no constitutional argument either directly or by invoking the principle of statutory construction that a statute should be construed so as to avoid a serious constitutional problem. Consequently, the State had no opportunity to brief the constitutional issue discussed in Judge Bell's dissent.

[2] As pointed out by one commentator, "it can be argued that if strict liability statutes are to be characterized as `strict' because of their failure to permit inquiry as to the defendant's state of mind, this description is too broad. More appropriately, each criminal statute must be examined to determine in what respects it is `strict.'" Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 742 (1960).

[1] Maryland Code Ann., Art 27, § 463 provides, in pertinent part:

(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

* * * * * *

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.

[2] There are other provisions of the Maryland sexual offenses statutes similar in purpose and effect to section 463(a)(3). Md.Code (1957, 1992 Repl.Vol.) §§ 464A, 464B, and 464C also do not specify a mental state and, therefore, would also be, under the majority's rationale, strict liability crimes. Sections 464A and 464B define statutory second degree sexual act and statutory third degree sexual offense. Although neither involves intercourse, both are felonies with maximum penalties of 20 and 10 years respectively. Section 464C proscribes the same conduct as section 463(a)(2); however, it applies to minors 14 or 15 years old and it punishes that conduct much less severely. see n. 15 infra.

[3] The analysis I would employ is that developed for use in self defense cases, perfect and imperfect. Before the State's burden affirmatively to prove the defendant's mental state kicks in, the defendant must have generated the issue by producing "some evidence" supporting his or her claim of mistake of fact. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). If the defendant generates the issue, the State must prove beyond a reasonable doubt that the act was committed without any mistake of fact — that the defendant acted intentionally and knowingly. See id.; see also State v. Evans, 278 Md. 197, 208, 362 A.2d 629, 635 (1976); Dykes v. State, 319 Md. 206, 216-17, 571 A.2d 1251, 1257 (1990).

[4] The Court stated that exceptions were developed in the course of the common law for "sex offenses, such as rape, in which the victim's actual age was determinative despite the defendant's reasonable belief that the girl had reached age of consent." Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8, It, however, did not discuss whether the exceptions could withstand constitutional scrutiny, stating only that the exceptions were not relevant to the case before the Court. See id.; 342 U.S. at 250-51 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8.

[5] In State v. McCallum, 321 Md. 451, 455-56, 583 A.2d 250, 252-53 (1991), we characterized the crime of driving with a suspended license as both punitive and regulatory and concluded that a mental state was required. The argument that § 463(a)(3), which is purely punitive, must require proof of a mental state is stronger.

[6] Maryland does not treat narcotic offenses as strict liability crimes. See Dawkins, 313 Md. 638, 547 A.2d 1041 (1988) (knowledge is an element of possession of a controlled dangerous substance).

[7] The Maryland bigamy statute, proscribing the entering into of a marriage ceremony while lawfully married to another, excludes from its coverage individual whose "lawful spouse has been absent from the individual for a continuous period of seven years and who, at the time of the subsequent marriage ceremony, does not know whether or not the spouse is living." Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 18(b). See Braun v. State, 230 Md. 82, 85-90, 185 A.2d 905, 906-07 (1962). The Legislature thus has now recognized the unfairness of convicting a person for remarrying if that person has a reasonable belief that his or her former spouse is dead.

[8] American penal statutes against fornication are generally unenforced, which may be reflective of the view that such a use of the penal law is improper. See Model Penal Code, § 213, Comment at 434.

[9] Sexual intercourse out of wedlock is still a crime in several American Jurisdictions. See Model Penal Code, § 213.6, Comment at 430. The prohibition derives from Biblical sources and long fell within the exclusive jurisdiction of the ecclesiastical authorities. Id. In England, secular punishment began under Cromwell's theocracy and was abandoned after the Restoration. Id. The Puritans of New England reinstituted punishment for sexual misbehavior. Id. At one time or another, most American states extended their penal laws to reach such misconduct, but the trend in this century has been toward decriminalization or reduction of penalties. See e.g. Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). See generally Model Penal Code § 213.6, Comment at 430 (footnote omitted).

[10] A conviction plausibly could have been supported under the lesser legal wrong theory had the defendant been married when he had sex with the prosecutrix. Adultery remains a crime in Maryland. See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 4. The defendant's intent to commit adultery, the lesser legal wrong, would suffice as the requisite mental state for the greater crime of statutory rape.

[11] In contrast, one who engages in sexual relations with a child who clearly does not appear to be of the age of consent, for example, a minor 7 years of age, evidences a propensity to corrupt minors. Because that person necessarily is aware that the minor is not of the age to consent, almost all authorities believe that he or she is properly held accountable on a strict liability basis. See e.g. Model Penal Code, § 213.6, Comment at 415-16.

[12] An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community. Acts mala in se have, as a general rule, become criminal offenses by the course and development of common law. Black's Law Dictionary 281 (1984). In comparison, an act malum prohibitum is wrong only because made so by statute. Id. Malum in se crimes usually include all felonies, injuries to property, adultery, bigamy, indecent acts committed upon underage children, and conduct contributing to the delinquency of a minor. See Myers, supra, at 115; see also Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 109 (3rd ed. 1982).

[13] The mistaken belief must tend to negate the mens rea necessary to the commission of the crime. For example, belief that the victim was 13 1/2 years of age, instead of 13, will be of no avail since section 463(a)(3)'s age limit is 14.

[14] It is noteworthy that the early English statutes providing for strict criminal liability for statutory rape did not deny the defense of mistake of fact. Under very early English common law, it was no crime to have consensual relations with a female, regardless of her age. Myers, supra, at 109, citing 4 W. Blackstone Commentaries [*]210 and 2 Coke, Institutes [*]180. It was not until the latter part of the thirteenth century that legislation was enacted in England making it unlawful to ravish "damsels" under the age of 12 years, with or without their consent, considered an action of trespass, with a penalty of two years and a fine in such sum as the sovereign directs. Gilbert & Moylan, Criminal Law, § 5.0., citing 4 W. Blackstone, Commentaries [*]212. Toward the close of the 16th century, the age of consent was reduced to 10 years old, the purpose of the statute being to declare that a girl under the prescribed age was presumed incapable of consent because she was too young to understand the nature and quality of her act. Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Comm. [*]212. The offense was also increased to a felony. See Gilbert & Moylan, Criminal Law, § 5.0., citing 13 Edward I, Statute of Westminster 2, c.34 and Statute 18 Elizabeth I, c. 7. English courts, in contrast to American courts, which never have allowed it, however, never denied the existence of the reasonable mistake of fact defense. Myers, supra, at 111. American Courts erroneously interpreted Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 111, and applied its rationale to statutory rape.

[15] Two policy considerations have historically been advanced to justify strict criminal liability for statutory rape: (1) it is desirable to provide the fullest protection to the innocent and naive female child incapable of understanding the nature of sexual intercourse; and (2) the act is immoral in itself, malum in se, discussed supra, and, so, it is appropriate to hold that the offender acts at his peril. See Tonry, supra, at 111.

Establishing an age, below which females are considered sexually immature and above which, they are considered sexually mature, does not assure that the first policy consideration will be achieved. See Tonry, supra, at 111. Age alone is not sufficient, considering that, in this country, the age of consent for statutory rape purposes ranges from 7 to 21 years. Id.

The inadequacy of age as a demarcation line actually points up the flaws in the strict criminal liability analysis. First, it would seem reasonable to allow the accused to introduce evidence of the minor's maturity, sophistication, and past sexual experience, since maturity, not age, is the chief concern, age being but a factor. Second, the age standard (unless it is low enough) with its universal application draws an arbitrary line, resulting in the imposition of disproportionate penalties. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977); see also Tonry, supra, at 112. Thus, for example, pursuant to section 463(a)(3) sexual intercourse with a person under 14 years of age, if the actor is at least four years older than the victim, is a second degree rape offense punishable by a possible twenty years imprisonment. Under section 464C, defining a fourth degree sexual offense, the same conduct if committed with a child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law creates a potential disparity of up to 19 years for a difference of as little as one day in the victim's age. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977). Third, placing the age standard too high may result in the anomaly of a female being legally able to consent to marriage, but unable to consent to intercourse. Tonry, supra, at 112, citing Ploscowe, Sex and the Law 184 (1951).

[16] While consent was not an element of assault with intent to have carnal knowledge of a female child under 14 years, by definition, the intent to have such knowledge of a 14 year old child was. Consequently, focusing on intent, the result in that case was not inconsistent with the common law.

[17] Recognizing that the statutory rape law stemmed from traditional notions underlying the presumption of incapacity to consent, presuming that the male was responsible for the occurrence and the female was "too innocent and naive to understand the implications and nature of her act", in Hernandez, 61 Cal.2d at 531 n. 1, 39 Cal. Rptr. at 362 n. 1, 393 P.2d at 674 n. 1, the California Supreme Court quoted the following passage from State v. Snow, 252 S.W. 629, 632 (Mo. 1923) to illustrate the potentially unfair consequences of employing these presumptions of female victimization:

"We have in this case a condition and not a theory. This wretched girl was young in years but old in sin and shame. A number of callow youths, of otherwise blameless lives ... fell under her seductive influence. They flocked about her, ... like moths about the flame of a lighted candle and probably with the same result. The girl was a common prostitute. .. .

The boys were immature and doubtless more sinned against than sinning. They did not defile the girl. She was a mere `cistern for foul toads to knot and gender in.' Why should the boys, misled by her, be sacrificed? What sound public policy can be subserved by branding them as felons? Might it not be wise to ingraft an exception in the statute?"

Today, the increasing sexual awareness and promiscuity currently evident at lower ages enhances the probability that sexual experimentation will be indulged in, and many times solicited, by the supposed victim. See Myers, supra, at 122. Indeed, in this case there is every reason to question whether the victim was the petitioner, rather than the minor female. The petitioner has an IQ of 52. The prosecutrix and her friends told the petitioner that she was 16 and the record does not suggest that she did not appear to be that age. The petitioner entered the prosecutrix's room at her invitation and remained with her for almost seven hours.

[18] Although it is not necessary in this case to reach the issue, I am not nearly so troubled by the retention of strict liability in cases involving very young children, i.e. under the age of 10, while requiring the State to prove mens rea in cases involving minors above the age of 10.

[19] The offer of proof of the defendant's alleged mistake of fact does not alone establish that fact. Unless the jury, or trier of fact, accepts the proof, the defense must fail. Whether a defendant actually entertained the belief that the minor was 16 and, if so, its reasonableness, must depend upon the minor's appearance and the evidence, including the testimony of the defendant and other witnesses, concerning her behavior. Rather than place the burden of proof on the State, as I would do, under the Code, the burden is on the defendant not only to generate the issue, but to prove it by a preponderance of the evidence. See Model Penal Code, § 213.6, Comment at 416.

[20] Article 20 of the Maryland Declaration of Rights, which has been held to be in pari materia with the Fourteenth Amendment's Due Process Clause, see Sanner v. Trustees of Sheppard & Enoch Pratt Hosp., 278 F. Supp. 138 (D.Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968), rehearing denied, 393 U.S. 1112, 89 S.Ct. 853, 21 L.Ed.2d 813 (1969) (citations omitted); Home Utilities Co., Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 122 A.2d 109 (1955); Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176 (1939), provides:

That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the people.

See also Article 24 of the Maryland Declaration of Rights, which provides:

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.

The phrase "Law of the land" has been held to be equivalent to "due process" of the law, as used in the 14th Amendment to the United States Constitution. In re Easton, 214 Md. 176, 187-89, 133 A.2d 441, 447-48 (1957). In that regard, therefore, Supreme Court cases on that subject are practically direct authority for the meaning of the Maryland provision. Northampton Corp. v. Wash. Sub. San. Comm'n, 278 Md. 677, 686, 366 A.2d 377, 383 (1976). The essential elements of due process as it relates to a judicial proceeding are notice and opportunity to defend. Accrocco v. Splawn, 264 Md. 527, 534, 287 A.2d 275, 278-80 (1972).

[21] The due process clause of the Fourteenth Amendment of the United States Constitution guarantees that no State shall "deprive any person of life, liberty or property without due process of law." This clause has been interpreted as "a restraint on the legislative as well as on the executive and judicial powers of the government and [it] cannot be ... construed as to leave Congress free to make any process `due process' of law by its mere will." Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855). L. Tribe, American Constitutional Law § 10-7, at 664 (2nd ed. 1988).

[22] In Johns v. State, 55 Md. 350, 359-63 (1881), cited by this Court in Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946), a statute requiring the certificate of the Comptroller to be received as prima facie evidence of the defendant's defalcation was upheld. In doing so, however, the Court was persuaded by the fact that the evidence was only prima facie:

So far as this case is concerned, it may readily be conceded, that a statute that should make evidence conclusive, which was not so of its own nature and inherent force, and by that means preclude the party from the truth, would be simply void. But the evidence furnished by the certificate only being prima facie in its effect, the traverser was left at full liberty to repel and overcome that prima facie effect, by evidence that ought to have been within his own control.

Id. at 362-63.

[23] To be sure, the statute is based on another irrebuttable presumption: that the victim is incapable of consenting. My argument is not directed at that presumption, albeit it is, in my opinion, logically, also fair game for constitutional challenge. See n. 26: see Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. It is certainly not universally true, or even almost always true, that a minor 13 years of age is incapable of giving meaningful consent. See note 25 infra.

[24] § 286A. Bringing into State in excess of certain amounts.

(a) A person who brings into this State any of the following controlled dangerous substances which it is unlawful for that person to possess, in the amounts indicated, upon conviction, is subject to the penalty provided in subsection (b) of this section:

(1) 100 pounds or greater of marijuana;

(2) 28 grams or greater of cocaine or any mixture containing 28 grams or greater of cocaine;

(3) 4 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium;

(4) 1,000 dosage units of lysergic acid diethylamide or any mixture containing the equivalent of 1,000 dosage units of lysergic acid diethylamide;

(5) 28 grams or more of phencyclidine in liquid or powder form or 112 grams or more of any mixture containing phencyclidine;

(6) 1,000 dosage units or more of methaqualone; or

(7) 28 grams or more of methamphetamines or any mixture containing 28 grams or more of methamphetamine.

(b) A person convicted of violating subsection (a) of this section is guilty of a felony and may be fined not more than $50,000 or imprisoned for not more than 25 years, or both fined and imprisoned in the discretion of the court.

[25] It is at least arguable that incapacity to consent based on an irrebuttable presumption cannot withstand constitutional scrutiny. For statutory rape to comport with due process, a close correlation between the age of consent specified in the statute and the purpose of the statute — to render minors incapable of consenting to sexual intercourse — is required. It is not necessarily true that a statutory age of consent is a reliable indicator of the capacity of any member of the protected class to understand the nature and consequences of sexual intercourse. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Myers, supra, at 121. Given the variety of cultural factors that can influence a child's acquisition of sexual awareness, it is unlikely that any arbitrary age could do so. Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 808 (1980). While it is reasonable to presume that very young children are naive and incapable of understanding the nature of sexual contact, and, thus, of consenting, an older adolescent's incapacity to consent on this basis seems unreasonable in light of pervasive contemporary sexual mores. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Note, supra, at 808-809.

[26] Indeed, it would appear that the irrebuttable presumption of notice is dependent on another irrebuttable presumption, that a person of a certain age cannot consent.

[27] As discussed supra, there are several critical distinctions between imposing strict criminal liability for public welfare offenses and felonies. First, there is no specific constitutional provision against imposing strict criminal liability for public welfare offenses. See Smith, 361 U.S. at 152, 80 S.Ct. at 218, 4 L.Ed.2d at 211; Singer, supra at 389. Second, such statutes which are designed to protect the health, safety, and welfare of the community at large, carry penalties that are not great and involve little or no stigma. See Tonry, supra, at 106.

On the other hand, there are constitutional limits on a legislature's power to define the elements of more serious criminal offenses like felonies. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75; Wulff, 758 F.2d at 1125; Singer, supra, at 397. Second, the greater social stigma attached to imposing criminal liability in serious felony cases requires an element of blameworthiness or culpability. See Singer, supra, at 404-405. Third, the severe penalties in serious felony cases merit a culpability requirement. See Holdridge, 282 F.2d 302.

Andrew C. Fine, Katherine Preece and Philip L. Weinstein for appellant.

Robert M. Morgenthau, District Attorney (Robert M. Raciti and Donald J. Siewert of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS and TITONE concur with Judge BELLACOSA; Judge HANCOCK, JR., dissents and votes to reverse in a separate opinion in which Judges KAYE and ALEXANDER concur.

[384] BELLACOSA, J.

The defense of mistake of law (Penal Law § 15.20 [2] [a], [d]) is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled, pursuant to the interplay of CPL 2.10, 1.20 and Penal Law § 265.20, to carry a handgun without a permit as a peace officer.

In a prior phase of this criminal proceeding, defendant's motion to dismiss the indictment upon which he now stands convicted was granted (94 Misc 2d 367); then it was reversed and the indictment reinstated by a divided Appellate Division (71 AD2d 346); next, defendant allowed an appeal from that order, certified to the Court of Appeals, to lapse and be dismissed (Oct. 22, 1980). Thus, review of that aspect of the case is precluded (People v Corley, 67 N.Y.2d 105).

On the trial of the case, the court rejected the defendant's argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from [385] criminal liability under New York's mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree. We affirm the Appellate Division order upholding the conviction.

Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant's personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

The common-law rule on mistake of law was clearly articulated in Gardner v People (62 N.Y. 299). In Gardner, the defendants misread a statute and mistakenly believed that their conduct was legal. The court insisted, however, that the "mistake of law" did not relieve the defendants of criminal liability. The statute at issue, relating to the removal of election officers, required that prior to removal, written notice must be given to the officer sought to be removed. The statute provided one exception to the notice requirement: "removal * * * shall only be made after notice in writing * * * unless made while the inspector is actually on duty on a day of registration, revision of registration, or election, and for improper conduct" (L 1872, ch 675, § 13). The defendants construed the statute to mean that an election officer could be removed without notice for improper conduct at any time. The court ruled that removal without notice could only occur for improper conduct on a day of registration, revision of registration or election.

In ruling that the defendant's misinterpretation of the statute was no defense, the court said: "The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. `The rule on the subject appears to be, that in acts mala in se, the intent governs, but in those mala prohibita, the only inquiry is, has the law been violated?' (3 Den., 403). The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party, [386] but if the act is intentionally done, the statute declares it a misdemeanor, irrespective of the motive or intent * * * The evidence offered [showed] that the defendants were of [the] opinion that the statute did not require notice to be given before removal. This opinion, if entertained in good faith, mitigated the character of the act, but was not a defence [sic]" (Gardner v People, 62 N.Y. 299, 304, supra). This is to be contrasted with People v Weiss (276 N.Y. 384) where, in a kidnapping case, the trial court precluded testimony that the defendants acted with the honest belief that seizing and confining the child was done with "authority of law". We held it was error to exclude such testimony since a good-faith belief in the legality of the conduct would negate an express and necessary element of the crime of kidnapping, i.e., intent, without authority of law, to confine or imprison another. Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale because the weapons possession statute violated by this defendant imposes liability irrespective of one's intent.

The desirability of the Gardner-type outcome, which was to encourage the societal benefit of individuals' knowledge of and respect for the law, is underscored by Justice Holmes' statement: "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 [1881]).

The revisors of New York's Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:

"§ 15.20. Effect of ignorance or mistake upon liability.* * *"2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility [387] or privilege of administering, enforcing or interpreting such statute or law."

This section was added to the Penal Law as part of the wholesale revision of the Penal Law in 1965 (L 1965, ch 1030). When this provision was first proposed, commentators viewed the new language as codifying "the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an `official statement of the law'" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [1964]).

The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his "reasonable" interpretation of an "official statement" is enough to satisfy the requirements of subdivision (2) (a). However, the whole thrust of this exceptional exculpatory concept, in derogation of the traditional and common-law principle, was intended to be a very narrow escape valve. Application in this case would invert that thrust and make mistake of law a generally applied or available defense instead of an unusual exception which the very opening words of the mistake statute make so clear, i.e., "A person is not relieved of criminal liability for conduct * * * unless" (Penal Law § 15.20). The momentarily enticing argument by defendant that his view of the statute would only allow a defendant to get the issue generally before a jury further supports the contrary view because that consequence is precisely what would give the defense the unintended broad practical application.

The prosecution further counters defendant's argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York's official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:

[388] "Section 2.04. Ignorance or Mistake.* * *"(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment" (emphasis added).

Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision (see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36; LaFave and Scott, Substantive Criminal Law § 5.1, n 95; Drafting a New Penal Law of New York: An Interview with Richard Denzer, 18 Buffalo L Rev 251, 252 [1968-1969]). The proposition that New York adopted the MPC general approach finds additional support in the comments to section 2.04 (see, Model Penal Code § 2.04, comment 3, n 33, at 279 [Official Draft and Revised Comments 1985]). It is not without significance that no one for over 20 years of this statute's existence has made a point of arguing or noting or holding that the difference in wording has the broad and dramatically sweeping interpretation which is now proposed. Such a turnabout would surely not have been accidentally produced or allowed. New York's drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance. Moreover, adding specified conditions by judicial construction, as the dissenters would have to do to make the mistake exception applicable in circumstances such as these, would be the sheerest form of judicial legislation.

It was early recognized that the "official statement" mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. "It seems obvious that society must rely on some statement of the law, and that conduct which is in fact `authorized' * * * should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the [389] official pronouncement — a questioning of authority that is itself undesirable" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [emphasis added]). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.

In the case before us, the underlying statute never in fact authorized the defendant's conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. Moreover, by adjudication of the final court to speak on the subject in this very case, it turned out that even the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.

The "official statement" component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But the interpretation of the statute relied upon must be "officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law." We agree with the People that the trial court also properly rejected the defense under Penal Law § 15.20 (2) (d) since none of the interpretations which defendant proffered meets the requirements of the statute. The fact that there are various complementing exceptions to section 15.20, none of which defendant could bring himself under, further emphasizes the correctness of our view which decides this case under particular statutes with appropriate precedential awareness.

It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, "rule out any defense based on mistake of law." (See, dissenting [390] opn, at 399-400.) To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.

The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant's own mind), mistake of law should not be available as an excuse (see, Jeffries, Legality, Vagueness and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]).

We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal. Professor Perkins, a leading supporter of this view, has said: "[i]f the meaning of a statute is not clear, and has not been judicially determined, one who has acted `in good faith' should not be held guilty of crime if his conduct would have been proper had the statute meant what he `reasonably believed' it to mean, even if the court should decide later that the proper construction is otherwise." (Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 45.) In support of this conclusion Professor Perkins cites two cases: State v Cutter (36 NJL 125) and Burns v State (123 Tex Crim 611, 61 SW2d 512). In both these cases mistake of law was viewed as a valid defense to offenses where a specific intent (i.e., willfully, knowingly, etc.) was an element of the crime charged. In Burns, the court recognized mistake of law as a defense to extortion. The statute defining "extortion" made the "willful" doing of the prohibited act an essential ingredient of the offense. The court, holding that mistake of law is a defense only where the mistake negates the specific intent required for conviction, borrowed language from the Cutter case: "In State v Cutter * * * the court said: `The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject * * * to certain important exceptions. Where the act done is malum in se, or where the law which [391] has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied'" (Burns v State, 123 Tex Crim, at 613, 61 SW2d, at 513, supra [emphasis added]). Thus, while Professor Perkins states that the defense should be available in cases where the defendant claims mistaken reliance on an ambiguous statute, the cases he cites recognize the defense only where the law was ambiguous and the ignorance or mistake of law negated the requisite intent (see also, People v Weiss, 276 N.Y. 384, supra). In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.

We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: "A statute * * * which is so indefinite that it `either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law' and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed. Such a statute could hardly mislead the defendant into believing that his acts were not criminal, if they do in fact come under its ban * * * [I]f the defense of mistake of law based on indefiniteness is raised, the court is * * * going to require proof * * * that the act was sufficiently definite to guide the conduct of reasonable men. Thus, the need for such a defense is largely supplied by the constitutional guarantee" (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 [1941]).

Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant's construction of New York's mistake of law defense statute. If defendant's argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There [392] would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. These are not in terrorem arguments disrespectful of appropriate adjudicative procedures; rather, they are the realistic and practical consequences were the dissenters' views to prevail. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

Accordingly, the order of the Appellate Division should be affirmed.

HANCOCK, JR., J. (dissenting).

The rule adopted by the majority prohibiting the defense of mistake of law under Penal Law § 15.20 (2) (a) in the circumstances here is directly contrary to the plain dictates of the statute and a rejection of the jurisprudential reforms and legislative policies underlying its enactment. For these reasons, as more fully explained herein, we cannot agree with this decision.

I

The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness [393] or "choosing freely to do wrong",^[1] our supposed man who has acted innocently and without any intent to do wrong should not be punished (see, United States v Barker, 514 F.2d 208, 228-229 [Bazelon, Ch. J., concurring]). Indeed, under some standards of morality he has done no wrong at all (Patterson, Cardozo's Philosophy of Law, Part II, 88 U Pa L Rev 156, 169-171 [1939-1940]).^[2] Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim "ignorantia legis neminem excusat"^[3] finds its roots in Medieval law when the "actor's intent was irrelevant since the law punished the act itself" (United States v Barker, supra, at 228 [Bazelon, Ch. J., concurring]; emphasis in original; see, Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]) and when, for example, the law recognized no difference between an intentional killing and one that was accidental (Ames, Law and Morals, 22 Harv L Rev 97, 98 [1908]). Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law^[4] (adding the element of intent [mens rea] and recognizing defenses based on the actor's mental state — e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian — preferring the interests of society [394] (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law)^[5] to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal (see, White, Reliance on Apparent Authority as a Defense to Criminal Prosecution, 77 Colum L Rev 775, 784-789 [1977]; Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 40, 41 [1939]; Ryu and Silving, Error Juris: A Comparative Study, 24 U Chi L Rev 421, 431-434 [1957]; United States v Barker, supra, at 230-232 [Bazelon, Ch. J., concurring]).

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense (see, e.g., White, op. cit., 77 Colum L Rev 775, 784; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486; Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]). The utilitarian arguments for retaining the rule have been drawn into serious question (see, LaFave and Scott, Substantive Criminal Law § 5.1; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U Va L Rev 189, 208, 209 [1985]; White, op. cit., at 785-787; Perkins, op. cit., 88 U Pa L Rev 35, 51-53; United States v Barker, 514 F.2d 208, 228-231 [Bazelon, Ch. J., concurring], supra) but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to "the notion that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., at 784). This basic objection to the maxim "ignorantia legis neminem excusat" may have had less force in ancient times when most crimes consisted of acts [395] which by their very nature were recognized as evil (malum in se) (id., at 784). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the "common law fiction that every man is presumed to know the law has become indefensible in fact or logic" (id., at 784; see, Note, Proposed Penal Law of New York, op. cit., at 1486; Ryu and Silving, op. cit., 24 U Chi L Rev 421, 433, 434 [1957]; United States v Barker, supra, at 228-232 [Bazelon, Ch. J., concurring]).^[6]

With this background we proceed to a discussion of our disagreement with the majority's construction of Penal Law § 15.20 (2) (a) and the policy and jurisprudential arguments made in support of that construction. There are two grounds for our dissent:

II

Penal Law § 15.20 (effect of ignorance or mistake upon liability), in pertinent part, provides: "2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment".

It is fundamental that in interpreting a statute, a court should look first to the particular words of the statute in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15, 16; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 232). Here, there is but one natural and obvious meaning of the statute: that if a defendant can establish that his mistaken belief was "founded upon" his interpretation of "an official statement of the law contained in * * * statute" (Penal Law § 15.20 [2] [a]), he should have a defense. No other natural and obvious meaning has been suggested.

It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.

Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license (Penal Law § 265.02). He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant's motion before trial the court dismissed the indictment, holding that he was a peace officer as defined [397] by CPL 2.10 (25) and, therefore, exempted by Penal Law § 265.20 from prosecution under Penal Law § 265.02 (94 Misc 2d 367).^[7] The People appealed and the Appellate Division reversed and reinstated the indictment by a 3-2 vote (71 AD2d 346).^[8] Defendant's appeal to this court was dismissed for failure to prosecute and the case proceeded to trial. The trial court rejected defendant's efforts to establish a defense of mistake of law under Penal Law § 15.20 (2) (a). He was convicted and the Appellate Division has affirmed.

Defendant's mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption from criminal liability under Penal Law § 265.02 accorded in Penal Law § 265.20 (a) (1) (a) to "peace officers" as defined in the Criminal Procedure Law and on his reading of the statutory definition for "peace officer" in CPL 2.10 (25) as meaning a correction officer "of any penal correctional institution" (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a "peace officer" and, as such, exempt by the express terms of Penal Law § 265.20 (a) (1) (a). This mistaken belief, based in good faith on the statute defining "peace officer" (CPL 2.10 [25]), is, defendant contends, the precise sort of "mistaken belief * * * founded upon an official statement of the law contained in * * * a statute or other enactment" which gives rise to a mistake of law defense under Penal Law § 15.20 (2) (a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute's meaning against him and rule that his belief had been mistaken, as three of the five-member panel at the Appellate Division ultimately did in the first appeal (see, People v Marrero, 71 AD2d 346, supra).

[398] The majority, however, has accepted the People's argument that to have a defense under Penal Law § 15.20 (2) (a) "a defendant must show that the statute permitted his conduct, not merely that he believed it did" (respondent's brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People's flat position is that "one's mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense" (respondent's brief, at 27).

Nothing in the statutory language suggests the interpretation urged by the People and adopted by the majority: that Penal Law § 15.20 (2) (a) is available to a defendant not when he has mistakenly read a statute but only when he has correctly read and relied on a statute which is later invalidated (respondent's brief, at 26). Such a construction contravenes the general rule that penal statutes should be construed against the State and in favor of the accused (see, McKinney's Cons Laws of NY, Book 1, Statutes § 271) and the Legislature's specific directive that the revised Penal Law should not be strictly construed but "must be construed according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00).^[9]

More importantly, the construction leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20 (2) (a) only when his reading of the statute is correct — not mistaken. Such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake [399] of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Finally, the majority's disregard of the natural and obvious meaning of Penal Law § 15.20 (2) (a) so that a defendant mistaken about the law is deprived of a defense under the statute amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute's enactment. It is self-evident that in enacting Penal Law § 15.20 (2) as part of the revision and modernization of the Penal Law (L 1965, ch 1030) the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned "ignorantia legis" common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant's erroneous belief is founded on an "official statement of the law" (see, Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485, 1486).

This reform, like the changes adopted in Model Penal Code § 2.04 (3) and those proposed by various legal commentators, was prompted by the prevailing dissatisfaction with the common-law rule (see, Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]; Note, op. cit., 64 Colum L Rev 1469, 1485, 1486). Both the Model Penal Code and Penal Law § 15.20 (2) accept the general concept that the outright prohibition of the mistake of law defense under the common law should be replaced with a rule permitting "a limited defense based on a reasonable belief on the part of the defendant that the law is such that his conduct does not constitute an offense" (Model Penal Code § 2.04, comment 3, at 274 [Official Draft and Revised Comments 1985]; see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36-37).

The majority construes the statute, however, so as to rule [400] out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute's enactment and resurrects the very rule which the Legislature rejected in enacting Penal Law § 15.20 (2) (a) as part of its modernization and reform of the Penal Law. It is fundamental that a construction of a statute which does not further the statute's object, spirit and purpose must be rejected (see, Price v Price, 69 N.Y.2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38, 39; Matter of New York Post Corp. v Leibowitz, 2 N.Y.2d 677, 685, 686; People v Ryan, 274 N.Y. 149, 152; McKinney's Cons Laws of NY, Book 1, Statutes § 96).

Although expressing its evident conviction that the statute should be treated as an "exceptional exculpatory concept * * * intended to be a very narrow escape valve" (majority opn, at 387), the majority cites no language in the statute or in the legislative history supporting its views or the construction of Penal Law § 15.20 (2) (a) which seems so contrary to the statute's plain language and evident purpose. Despite the assertion that such construction reflects "appropriate precedential awareness" (id., at 389), the majority cites no precedential authority.

Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20 (2) (a) should be read as if it were Model Penal Code § 2.04 (3) (b) (i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal,^[10] New York followed parts of the Model Penal Code provisions and rejected others. In People v Goetz (68 N.Y.2d 96), we said that the Legislature's rejection of the verbatim provisions of the Model Penal Code was crucial in determining its intent in drafting the statute.^[11] The significance [401] of the alterations here can be no different.

While Penal Law § 15.20 (2) and Model Penal Code § 2.04 are alike in their rejection of the strict common-law rule, they are not alike in wording and differ significantly in substance. The Model Penal Code provides a limited defense for ignorance of the law (Model Penal Code § 2.04 [3] [a]). Penal Law § 15.20 (2) omits any such defense. In respect to the defense based upon an actor's reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar (compare, Model Penal Code § 2.04 [3] [b] [i], to Penal Law § 15.20 [2] [a]). The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct.^[12] The defense is limited to an act in reliance on an official statement of law in a statute "afterward determined to be invalid or erroneous" (Model Penal Code § 2.04 [3] [b]; emphasis added). The New York statute, in contrast, specifically permits the defense when the actor proceeds under "a mistaken belief" that his conduct does not "constitute an offense" when that "mistaken belief is founded upon an official statement of the law contained in * * * a statute" (Penal Law § 15.20 [2] [a]; emphasis added).

Thus, the precise phrase in the Model Penal Code limiting the defense under section 2.04 (3) (b) (i) to reliance on a statute "afterward determined to be invalid or erroneous" which, if present, would support the majority's narrow construction of the New York statute, is omitted from Penal Law § 15.20 (2) (a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained (see, People v Goetz, 68 N.Y.2d 96, 109, 110, supra; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 240, at 413).

As an alternate interpretation of Penal Law § 15.20 (2) (a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts [402] mala in se such as People v Weiss (276 N.Y. 384 [involving kidnapping charges]) "where specific intent is an element of the offense" (majority opn, at 391). Again such construction is at odds with the plain wording of Penal Law § 15.20 (2) (a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating "under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]). There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita — i.e., "the vast network of regulatory offenses which make up a large part of today's criminal law" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; see, White, op. cit., 77 Colum L Rev 775, 784) — where reasons of policy and fairness call for a relaxation of the strict "ignorantia legis" maxim to permit a limited mistake of law defense.

Nor does it seem possible that the Legislature could have intended to permit a mistake of law defense only in the limited circumstance where it had already been permitted prior to the enactment of the statute, i.e., to negate a specific element of the charge (see, People v Weiss, supra). Such a reading, contrary to the statute's plain meaning, makes Penal Law § 15.20 (2) (a) superfluous. While it is quite true that New York has followed the Model Penal Code in codifying the "ignorantia legis" maxim as the basic rule (see, majority opn, at 387; dissenting opn, at 395-396) we are concerned here not with the basic rule but with the modifications and exceptions to that rule enacted in Penal Law § 15.20 (2). It is only through these limited exceptions that the easing of the common-law rule is effected. Reading the statute merely as a codification of People v Weiss (supra) would amount to a total rejection of the legislative purpose of effecting this needed jurisprudential reform. The interpretation is contrary to accepted canons of statutory construction (McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 95, 96, 143, 145).

[403]

III

Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction (see, majority opn, at 390-391). The majority warns, for example, that if the defense were permitted "the exception would swallow the rule"; that "[m]istakes about the law would be encouraged"; that an "infinite number of mistake of law defenses * * * could be devised"; and that "wrongminded individuals [could] contrive in bad faith solely to get an exculpatory notion before the jury." (Majority opn, at 391, 392.)

These considerations, like the People's argument that the mistake of law defense "`would encourage ignorance where knowledge is socially desired'" (respondent's brief, at 28), are the very considerations which have been consistently offered as justifications for the maxim "ignorantia legis". That these justifications are unabashedly utilitarian cannot be questioned. It could not be put more candidly than by Justice Holmes in defending the common-law maxim more than 100 years ago: "Public policy sacrifices the individual to the general good * * * It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 [1881]; emphasis added). Regardless of one's attitude toward the acceptability of these views in the 1980's, the fact remains that the Legislature in abandoning the strict "ignorantia legis" maxim must be deemed to have rejected them.

We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man's good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence "that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., 77 Colum L Rev 775, 784).

It is no answer to protest that the defense may become a [404] "false and diversionary stratagem[]" or that "wrongminded individuals [could] contrive" an "infinite number of mistake of law defenses" (majority opn, at 392); for it is the very business of the courts to separate the true claims from the false. Such in terrorem arguments should have no more force here than similar objections which doubtless were voiced with equal intensity to the long-accepted defenses of justification, accident, mistake of fact, insanity, entrapment, duress and intoxication. As Justice Holmes wrote in commenting on John Austin's argument that permitting the mistake of law defense would present courts with problems they were not prepared to solve: "If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try" (Holmes, The Common Law, at 48 [1881]).

IV

If defendant's offer of proof is true, his is not the case of a "free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4). He carried the gun in the good-faith belief that, as a Federal corrections officer, it was lawful for him to do so under the words of the statute (Penal Law § 265.20 [a] [1] [former a]; CPL 2.10, 1.20 [see, dissenting opn, at 397, n 7). That his interpretation of the statute as exempting corrections officers (whether or not employed in a State facility) was a reasonable one can hardly be questioned. If the statute does not plainly say that corrections officers are exempt, as defendant contends, the statute at the very least is ambiguous and clearly susceptible to that interpretation. Indeed, Supreme Court in dismissing the indictment (94 Misc 2d 367) and two of the five-member panel in the first appeal to the Appellate Division (71 AD2d 346) read the statute as it was read by defendant and the police officials and others whose opinions he sought. We believe that under our present Penal Law and the policies underlying its revision (L 1965, ch 1030) this defendant should not be found guilty of violating Penal Law § 265.02 if he can establish that his conduct was based on a good-faith mistake of law founded on the wording of the statute.

We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated. [405] Indeed, although the majority foresees "an infinite number of mistake of law defenses" (majority opn, at 392), New Jersey, which adopted a more liberal mistake of law statute in 1978, has apparently experienced no such adversity (no case construing that law is mentioned in the most recent annotation of the statute; see, dissenting opn, at 400, n 10).^[13] Nor is there any reason to believe that courts will have more difficulty separating valid claims from "diversionary stratagem[s]" in making preliminary legal determinations as to the validity of the mistake of law defense than of justification or any other defense.

But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant's circumstances should have a mistake of law defense (Penal Law § 15.20 [2] [a]). Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.

There should be a reversal and defendant should have a new trial in which he is permitted to assert a defense of mistake of law under Penal Law § 15.20 (2) (a).

Order affirmed.

[1] "Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4).

[2] Kant, Philosophy of Law, at 13, 14, 28, 37 (Hastie trans 1887); cf., Bentham, Theory of Legislation, at 1-4 (Ogden ed 1931).

[3] Although "ignorantia legis" does not literally refer to mistake of law, the maxim is ordinarily understood, as we use it here, to include both ignorance and mistake of law (see, e.g., Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485 [1977]; Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]).

[4] See, 2 Holdsworth, History of English Law, at 50-54, 258-259 (4th ed 1936); 3 Holdsworth, at 310-314, 371-375; United States v Barker, 514 F.2d 208, 228 (Bazelon, Ch. J., concurring).

[5] The societal interests mentioned in the literature include: facilitating judicial administration, encouraging knowledge and obedience to law and preservation of integrity of legal norms (77 Colum L Rev 775, 787). Justice Holmes, for example, stressed society's interests in deterrence, noting that acceptance of ignorance or mistake of law as a defense would encourage ignorance at the expense of the public good (see, Holmes, The Common Law, at 48 [1881]; Ellis v United States, 206 US 246, 257). John Austin justified "ignorantia legis" on the ground that if the defense were permitted, the courts would be confronted with questions about defendant's mental state which they could not solve (Austin, Lectures on Jurisprudence, at 496-501 [4th ed 1873]; see, White, op. cit., 77 Colum L Rev, at 785, 786; People v O'Brien, 96 Cal 171, 176, 31 Pac 45, 47 [1892]). For a discussion of the societal interest in maintaining primacy of the law as a reason for the common-law maxim, see, Hall, General Principles of Criminal Law, at 382, 383 (2d ed 1960).

[6] Professor LaFave notes the unfairness of never recognizing ignorance or mistake of law as a defense to offenses which are purely regulatory: "The early criminal law was `well integrated with the mores of the time', so that `a defendant's mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt' [n omitted]. But the vast network of regulatory offenses which make up a large part of today's criminal law does not stem from the mores of the community, and so `moral education no longer serves us as a guide as to what is prohibited' [n omitted]. Under these circumstances, where one's moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law never to recognize ignorance or mistake of the criminal law as a defense. Moreover, some would question whether it is desirable to characterize as criminal an individual who has not demonstrated any degree of social dangerousness, that is, a person whose conduct is not anti-social because (i) he reasonably thought the conduct was not criminal, and (ii) the conduct is not by its nature immoral" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; emphasis in original). Dissatisfaction with the traditional common-law rule totally prohibiting a mistake of law defense may be seen in decisions in New York and other jurisdictions recognizing the defense in certain circumstances even in the absence of an authorizing statute (see, e.g., People v Weiss, 276 N.Y. 384, 389 [permitting defense to negate an essential element of the People's proof]; see also, United States v Barker, 514 F.2d 208, 228 [Bazelon, Ch. J., concurring]; State v Cutter, 36 NJL 125; Ostrosky v State, 704 P2d 786 [Alaska Ct App]).

[7] By virtue of Penal Law § 265.20 (a) (1) (a) "peace officers", as defined in the CPL 1.20, are expressly exempt from criminal liability under Penal Law § 265.02. CPL 1.20 incorporates the definition of "peace officer" in CPL 2.10, which includes "correction officers of any state correction facility or of any penal correctional institution". Penal Law § 265.20 (a) was amended in 1980 to remove "peace officer" from (a) (1) (a) and to include "peace officer" in (a) (1) (c) (L 1980, ch 843, §§ 44, 45).

[8] The majority held that Penal Law § 265.20 (a) (1) (a) included only State correction officers. The dissenters agreed with Supreme Court that under the unambiguous language of CPL 2.10 defendant was a "peace officer" within the meaning of Penal Law § 265.20 (a) (1) (a) and exempt from prosecution under Penal Law § 265.02.

[9] It is suggested that Penal Law § 15.20 (2) (a) should be read as intended to apply when "it is determined that there was a mistake in the law itself." (Majority opn, at 390; emphasis in original.) Such interpretation is refuted by the language of the statute which provides a defense not when there is a "mistake in the law", but, under particular circumstances, when the defendant is mistaken, i.e., when he acts "under a mistaken belief that [his conduct] does not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]).

[10] In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: "(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude" (NJ Stat Ann § 2C:2-4 [c] [3]).

[11] In Goetz (68 N.Y.2d 96, 109), we noted of the Model Penal Code provision on justification: "While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim." This difference in wording — involving the addition of the word "reasonable" to Penal Law § 35.15 — we found to be a "crucial" distinction between the Model Penal Code and the Penal Law (id., at 110).

[12] Model Penal Code § 2.04 (3) (b) (i) states: "A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment".

[13] New York's experience has been similar. It is stated that "for over 20 years of this statute's existence" (majority opn, at 388) no one has sought to predicate a defense on the statute. That history is significant not as demonstrating that Penal Law § 15.20 (2) does not plainly afford a mistake of law defense, as the majority suggests, but simply that, as in New Jersey, the enactment of the statutory defense has not resulted in an "infinite number of mistake of law defenses" (id., at 392).

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

[251] Mr. William C. Herron, with whom Mr. Solicitor General Beck was on the brief, for the United States.

No appearance for defendants in error.

MR. CHIEF JUSTICE TAFT delivered the opinion of the court.

This is a writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785. The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act. The defendants demurrer to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such. The statute does not make such knowledge an element of the offense. The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.

While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did [252] not in terms include it (Reg. v. Sleep, 8 Cox C.C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. Commonwealth v. Mixer, 207 Mass. 141; Commonwealth v. Smith, 166 Mass. 370; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N.Y. 321; State v. Kinkead, 57 Conn. 173; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119; United States v. Leathers, 6 Sawy. 17; United States v. Thomson, 12 Fed. 245; United States v. Mayfield, 177 Fed. 765; United States v. 36 Bottles of Gin, 210 Fed. 271; Feeley v. United States, 236 Fed. 903; Voves v. United States, 249 Fed. 191. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A.C. 317. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the [253] policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483.

The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. United States v. Doremus, 249 U.S. 86, 94; United States v. Jin Fuey Moy, 241 U.S. 394, 402.

Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin.^[1] It is very evident from a reading of [254] it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion. We think the demurrer to the indictment should have been overruled.

Judgment reversed.

MR. JUSTICE CLARKE took no part in this decision.

[1] Part of § 2 of an act entitled An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes, approved December 17, 1914, 38 Stat. 785, 786:

Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

Solicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States.

[278] Mr. Samuel M. Fleischman, with whom Mr. Robert J. Whissel was on the brief, for respondent.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U.S.C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U.S.C. § 331), paragraph (a) of which prohibits "The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded." "Any person" violating this provision is, by paragraph (a) of § 303 (21 U.S.C. § 333), made "guilty of a misdemeanor." Three counts went to the jury — two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug. The jury disagreed as to the corporation and found Dotterweich guilty on all three counts. We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F.2d 500, 502.

Two other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path for the main question before us. He invoked § 305 of the Act requiring the Administrator, before reporting a violation for prosecution by a [279] United States attorney, to give the suspect an "opportunity to present his views." We agree with the Circuit Court of Appeals that the giving of such an opportunity, which was not accorded to Dotterweich, is not a prerequisite to prosecution. This Court so held in United States v. Morgan, 222 U.S. 274, in construing the Food and Drugs Act of 1906, 34 Stat. 768, and the legislative history to which the court below called attention abundantly proves that Congress, in the changed phraseology of 1938, did not intend to introduce a change of substance. 83 Cong. Rec. 7792-94. Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390.

And so we are brought to our real problem. The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the "person" subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich. On that issue, after rehearing, it remanded the cause for a new trial. We then brought the case here, on the Government's petition for certiorari, 318 U.S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act.

The court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c). That section affords immunity from prosecution if certain conditions are satisfied. The condition relevant to this case is a guaranty from the seller of the innocence of [280] his product. So far as here relevant, the provision for an immunizing guaranty is as follows:

"No person shall be subject to the penalties of subsection (a) of this section . . . (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . ."

The Circuit Court of Appeals found it "difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one." 131 F.2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty.

The guaranty clause cannot be read in isolation. The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. See Hipolite Egg Co. v. United States, 220 U.S. 45, 57, and McDermott v. Wisconsin, 228 U.S. 115, 128. The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means [281] of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250. And so it is clear that shipments like those now in issue are "punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all. It was natural enough to throw this risk on shippers with regard to the identity of their wares . . ." United States v. Johnson, 221 U.S. 488, 497-98.

The statute makes "any person" who violates § 301 (a) guilty of a "misdemeanor." It specifically defines "person" to include "corporation." § 201 (e). But the only way in which a corporation can act is through the individuals who act on its behalf. New York Central & H.R.R. Co. v. United States, 212 U.S. 481. And the historic conception of a "misdemeanor" makes all those responsible for it equally guilty, United States v. Mills, 7 Pet. 138, 141, a doctrine given general application in § 332 of the Penal Code (18 U.S.C. § 550). If, then, Dotterweich is not subject to the Act, it must be solely on the ground that individuals are immune when the "person" who violates § 301 (a) is a corporation, although from the point of view of action the individuals are the corporation. As a matter of legal development, it has taken time to establish criminal liability also for a corporation and not merely for its agents. See New York Central & H.R.R. Co. v. United States, supra. The history of federal food and drug legislation is a good illustration of the elaborate phrasing that was in earlier days deemed necessary to fasten criminal liability on corporations. Section 12 of the Food and Drugs Act of 1906 provided that, "the act, omission, or failure of any officer, agent, or other person [282] acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person." By 1938, legal understanding and practice had rendered such statement of the obvious superfluous. Deletion of words — in the interest of brevity and good draftsmanship^[1] — superfluous for holding a corporation criminally liable can hardly be found ground for relieving from such liability the individual agents of the corporation. To hold that the Act of 1938 freed all individuals, except when proprietors, from the culpability under which the earlier legislation had placed them is to defeat the very object of the new Act. Nothing is clearer than that the later legislation was designed to enlarge and stiffen the penal net and not to narrow and loosen it. This purpose was unequivocally avowed by the two committees which reported the bills to the Congress. The House Committee reported that the Act "seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30, 1906." (H. Rep. No. 2139, 75th Cong., 3d Sess., p. 1.) And the Senate Committee explicitly pointed out that the new legislation "must not weaken the existing laws," but on the contrary "it must strengthen and extend that law's protection of the consumer." (S. Rep. No. 152, 75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it was below, the penalties of the law could be imposed only in the rare case where the corporation is merely an individual's alter ego. Corporations carrying on an illicit trade would be subject only to what the House Committee described as a "license fee [283] for the conduct of an illegitimate business."^[2] A corporate officer, who even with "intent to defraud or mislead" (§ 303b), introduced adulterated or misbranded drugs into interstate commerce could not be held culpable for conduct which was indubitably outlawed by the 1906 Act. See, e.g., United States v. Mayfield, 177 F. 765. This argument proves too much. It is not credible that Congress should by implication have exonerated what is probably a preponderant number of persons involved in acts of disobedience — for the number of non-corporate proprietors is relatively small. Congress, of course, could reverse the process and hold only the corporation and allow its agents to escape. In very exceptional circumstances it may have required this result. See Sherman v. United States, 282 U.S. 25. But the history of the present Act, its purposes, its terms, and extended practical construction lead away from such a result once "we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule." United States v. Union Supply Co., 215 U.S. 50, 55.

The Act is concerned not with the proprietory relation to a misbranded or an adulterated drug but with its distribution. In the case of a corporation such distribution must be accomplished, and may be furthered, by persons standing in various relations to the incorporeal proprietor. If a guaranty immunizes shipments of course it immunizes all involved in the shipment. But simply because if there had been a guaranty it would have been received by the proprietor, whether corporate or individual, as a safeguard for the enterprise, the want of a guaranty [284] does not cut down the scope of responsibility of all who are concerned with transactions forbidden by § 301. To be sure, that casts the risk that there is no guaranty upon all who according to settled doctrines of criminal law are responsible for the commission of a misdemeanor. To read the guaranty section, as did the court below, so as to restrict liability for penalties to the only person who normally would receive a guaranty — the proprietor — disregards the admonition that "the meaning of a sentence is to be felt rather than to be proved." United States v. Johnson, 221 U.S. 488, 496. It also reads an exception to an important provision safeguarding the public welfare with a liberality which more appropriately belongs to enforcement of the central purpose of the Act.

The Circuit Court of Appeals was evidently tempted to make such a devitalizing use of the guaranty provision through fear that an enforcement of § 301 (a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment. But that is not the way to read legislation. Literalism and evisceration are equally to be avoided. To speak with technical accuracy, under § 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance. The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. [285] Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.

It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility. In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on "conscience and circumspection in prosecuting officers," Nash v. United States, 229 U.S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us. See United States v. Balint, supra (involving a maximum sentence of five years). For present purpose it suffices to say that in what the defense characterized as "a very fair charge" the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.

Reversed.

MR. JUSTICE MURPHY, dissenting:

Our prime concern in this case is whether the criminal sanctions of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and unmistakably apply to the respondent in his capacity as a corporate officer. He is charged with violating § 301 (a) of the Act, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug. There is [286] no evidence in this case of any personal guilt on the part of the respondent. There is no proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question, much less that he actively participated in their introduction. Guilt is imputed to the respondent solely on the basis of his authority and responsibility as president and general manager of the corporation.

It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing. It may be proper to charge him with responsibility to the corporation and the stockholders for negligence and mismanagement. But in the absence of clear statutory authorization it is inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and of which he had no personal knowledge. Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called "the tenderness of the law for the rights of individuals"^[1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not "plainly and unmistakably" within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628; United States v. Gradwell, 243 U.S. 476, 485.

Moreover, the fact that individual liability of corporate officers may be consistent with the policy and purpose of a public health and welfare measure does not authorize this Court to impose such liability where Congress has not [287] clearly intended or actually done so. Congress alone has the power to define a crime and to specify the offenders. United States v. Wiltberger, 5 Wheat. 76, 95. It is not our function to supply any deficiencies in these respects, no matter how grave the consequences. Statutory policy and purpose are not constitutional substitutes for the requirement that the legislature specify with reasonable certainty those individuals it desires to place under the interdict of the Act. United States v. Harris, 177 U.S. 305; Sarlls v. United States, 152 U.S. 570.

Looking at the language actually used in this statute, we find a complete absence of any reference to corporate officers. There is merely a provision in § 303 (a) to the effect that "any person" inadvertently violating § 301 (a) shall be guilty of a misdemeanor. Section 201 (e) further defines "person" as including an "individual, partnership, corporation, and association."^[2] The fact that a corporate officer is both a "person" and an "individual" is not indicative of an intent to place vicarious liability on the officer. Such words must be read in light of their statutory environment.^[3] Only if Congress has otherwise specified an [288] intent to place corporate officers within the ambit of the Act can they be said to be embraced within the meaning of the words "person" or "individual" as here used.

Nor does the clear imposition of liability on corporations reveal the necessary intent to place criminal sanctions on their officers. A corporation is not the necessary and inevitable equivalent of its officers for all purposes.^[4] In many respects it is desirable to distinguish the latter from the corporate entity and to impose liability only on the corporation. In this respect it is significant that this Court has never held the imposition of liability on a corporation sufficient, without more, to extend liability to its officers who have no consciousness of wrongdoing.^[5] Indeed, in a closely analogous situation, we have held that the vicarious personal liability of receivers in actual charge and control of a corporation could not be predicated on the statutory liability of a "company," even when the policy and purpose of the enactment were consistent with personal liability. United States v. Harris, supra.^[6] It follows [289] that express statutory provisions are necessary to satisfy the requirement that officers as individuals be given clear and unmistakable warning as to their vicarious personal liability. This Act gives no such warning.

This fatal hiatus in the Act is further emphasized by the ability of Congress, demonstrated on many occasions, to apply statutes in no uncertain terms to corporate officers as distinct from corporations.^[7] The failure to mention officers specifically is thus some indication of a desire to exempt them from liability. In fact the history [290] of federal food and drug legislation is itself illustrative of this capacity for specification and lends strong support to the conclusion that Congress did not intend to impose liability on corporate officers in this particular Act.

Section 2 of the Federal Food and Drugs Act of 1906, as introduced and passed in the Senate, contained a provision to the effect that any violation of the Act by a corporation should be deemed to be the act of the officer responsible therefor and that such officer might be punished as though it were his personal act.^[8] This clear imposition of criminal responsibility on corporate officers, however, was not carried over into the statute as finally enacted. In its place appeared merely the provision that "when construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation . . . within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation . . . as well as that of the person."^[9] This provision had the effect only of making corporations [291] responsible for the illegal acts of their officers and proved unnecessary in view of the clarity of the law to that effect. New York Central & H.R.R. Co. v. United States, 212 U.S. 481.

The framers of the 1938 Act were aware that the 1906 Act was deficient in that it failed "to place responsibility properly upon corporate officers."^[10] In order "to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers,"^[11] these framers inserted a clear provision that "whenever a corporation or association violates any of the provisions of this Act, such violation shall also be deemed to be a violation of the individual directors, officers, or agents of such corporation or association who authorized, ordered, or did any of the acts constituting, in whole or in part, such violation."^[12] This paragraph, however, was deleted from the final version of the Act.

[292] We cannot presume that this omission was inadvertent on the part of Congress. United States v. Harris, supra at 309. Even if it were, courts have no power to remedy so serious a defect, no matter how probable it otherwise may appear that Congress intended to include officers; "probability is not a guide which a court, in construing a penal statute, can safely take." United States v. Wiltberger, supra at 105. But the framers of the 1938 Act had an intelligent comprehension of the inadequacies of the 1906 Act and of the unsettled state of the law. They recognized the necessity of inserting clear and unmistakable language in order to impose liability on corporate officers. It is thus unreasonable to assume that the omission of such language was due to a belief that the Act as it now stands was sufficient to impose liability on corporate officers. Such deliberate deletion is consistent only with an intent to allow such officers to remain free from criminal liability. Thus to apply the sanctions of this Act to the respondent would be contrary to the intent of Congress as expressed in the statutory language and in the legislative history.

The dangers inherent in any attempt to create liability without express Congressional intention or authorization are illustrated by this case. Without any legislative guides, we are confronted with the problem of determining precisely which officers, employees and agents of a corporation are to be subject to this Act by our fiat. To erect standards of responsibility is a difficult legislative task and the opinion of this Court admits that it is "too treacherous" and a "mischievous futility" for us to engage in such pursuits. But the only alternative is a blind resort to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries." Yet that situation is precisely what our constitutional system sought to avoid. Reliance on the legislature to define crimes and criminals distinguishes our form of jurisprudence [293] from certain less desirable ones. The legislative power to restrain the liberty and to imperil the good reputation of citizens must not rest upon the variable attitudes and opinions of those charged with the duties of interpreting and enforcing the mandates of the law. I therefore cannot approve the decision of the Court in this case.

MR. JUSTICE ROBERTS, MR. JUSTICE REED and MR. JUSTICE RUTLEDGE join in this dissent.

[1] "The bill has been made shorter and less verbose than previous bills. That has been done without deleting any effective provisions." S. Rep. No. 152, 75th Cong., 1st Sess., p. 2.

[2] In describing the penalty provisions of § 303, the House Committee reported that the Bill "increases substantially the criminal penalties . . . which some manufacturers have regarded as substantially a license fee for the conduct of an illegitimate business." H. Rep. No. 2139, 75th Cong., 3d Sess., p. 4.

[1] United States v. Wiltberger, 5 Wheat. 76, 95.

[2] The normal and necessary meaning of such a definition of "person" is to distinguish between individual enterprises and those enterprises that are incorporated or operated as a partnership or association, in order to subject them all to the Act. This phrase cannot be considered as an attempt to distinguish between individual officers of a corporation and the corporate entity. Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181, 190.

[3] Compare United States v. Cooper Corp., 312 U.S. 600, 606, and Davis v. Pringle, 268 U.S. 315, 318, holding that the context and legislative history of the particular statutes there involved indicated that the words "any person" did not include the United States. But in Georgia v. Evans, 316 U.S. 159, and Ohio v. Helvering, 292 U.S. 360, these considerations led to the conclusion that "any person" did include a state. See also 40 Stat. 1143, which specifically includes officers within the meaning of "any person" as used in the Revenue Act of 1918.

[4] In Park Bank v. Remsen, 158 U.S. 337, 344, this Court said, "It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation."

[5] For an analysis of the confusion on this matter in the state and lower federal courts, see Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181.

[6] In that case we had before us Rev. Stat. §§ 4386-4389, which penalized "any company, owner or custodian of such animals" who failed to comply with the statutory requirements as to livestock transportation. A railroad company violated the statute and the government sought to impose liability on the receivers who were in actual charge of the company. It was argued that the word "company" embraced the natural persons acting on behalf of the company and that to hold such officers and receivers liable was within the policy and purpose of so humane a statute. We rejected this contention in language peculiarly appropriate to this case (177 U.S. at 309):

"It must be admitted that, in order to hold the receivers, they must be regarded as included in the word `company.' Only by a strained and artificial construction, based chiefly upon a consideration of the mischief which the legislature sought to remedy, can receivers be brought within the terms of the law. But can such a kind of construction be resorted to in enforcing a penal statute? Giving all proper force to the contention of the counsel of the Government, that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."

[7] "Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation." 15 U.S.C. § 24.

"The courts of bankruptcy . . . are hereby invested . . . with such jurisdiction at law and in equity as will enable them to . .. (4) arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act." 30 Stat. 545.

"Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the next preceding section of this chapter shall be liable to a penalty . . ." 45 U.S.C. § 63.

"A mortgagor who, with intent to defraud, violates any provision of subsection F, section 924, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor . . ." 46 U.S.C. § 941 (b).

[8] S. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the sponsors of S. 88, stated that this was "a new feature in bills of this kind. It was intended to obviate the possibility of escape by the officers of a corporation under a plea, which has been more than once made, that they did not know that this was being done on the credit of or on the responsibility of the corporation." 40 Cong. Rec. 894.

[9] 34 Stat. 772, 21 U.S.C. § 4.

[10] Senate Report No. 493, 73d Cong., 2d Sess., p. 21.

[11] Ibid., p. 22. This report also stated that "it is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation."

[12] This provision appears in several of the early versions of the Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18 (b); S. 2000, 73d Cong., 2d Sess., § 18 (b); S. 2800, 73d Cong., 2d Sess., § 18 (b); S. 5, 74th Cong., 1st Sess., § 709 (b); S. 5, 74th Cong., 2d Sess., § 707 (b), as reported to the House, which substituted the word "personally" for the word "authorized" in the last clause of the paragraph quoted above. A variation of this provision appeared in S. 5, 75th Cong., 1st Sess., § 2 (f), and made a marked distinction between the use of the word "person" and the words "director, officer, employee, or agent acting for or employed by any person." All of these bills also contained the present definition of "person" as including "individual, partnership, corporation, and association."