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State v. Van11/12/2004
(a) Assignments of Error
In his first assignment of error, Van assigns, restated, that Neb. Rev. Stat. §§ 28-319(1)(a), 28-308, 28-309, 28-314, and 28-311.01 (Reissue 1995 & Cum. Supp. 2002), which define the offenses of sexual assault in the first degree, assault in the first degree, assault in the second degree, false imprisonment in the first degree, and terroristic threats, respectively, are unconstitutional as applied to him because they violate his right to privacy guaranteed by the Due Process Clauses of both the Nebraska and U.S. Constitutions, and because the statutes were arbitrarily, capriciously, and discriminatorily applied to him.
In his second assignment of error, Van assigns, restated, that Nebraska's rape shield law, Neb. Rev. Stat. § 28-321 (Reissue 1995), is unconstitutional as applied to him.
(b) Standard of Review
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002).
[2,3] A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Worm, ante p. 74, 680 N.W.2d 151 (2004); State v. Spady, supra. The burden of establishing a statute's unconstitutionality is on the party claiming it to be unconstitutional. State v. Spady, supra.
(c) Disposition
(i) Charging Statutes
Van contends that the statutes defining the criminal offenses of which he was convicted are unconstitutional as applied to him because the "Nebraska legislature did not intend these statutes to apply to conduct that occurs during a private, consensual relationship involving BDSM activities." Brief for appellant at 20. Van argues that the events that occurred in his basement "are almost identical to the BDSM relationship discussed and negotiated in the emails" in which J.G.C. "appeared to be a willing participant." Id. at 18. He argues that he and J.G.C. were "two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle." Id. at 22.
Van rests his legal argument on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed. 2d 508 (2003), which was decided after Van's trial but prior to his sentencing. In Lawrence, the U.S. Supreme Court considered the validity of a Texas criminal statute prohibiting two persons of the same sex from engaging in certain intimate sexual conduct. The two adult men convicted under the statute had engaged in consensual sexual activity in a private residence. Overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986), the Court recognized that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and held that the Texas statute furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Lawrence v. Texas, 539 U.S. at 572, 578. The Court noted that as a "general rule," government should not attempt to define the meaning or set the boundaries of a personal relationship "absent injury to a person or abuse of an institution the law protects." 539 U.S. at 567.
In Lawrence, the consensual nature of the sexual activity was undisputed. In the instant case, consent was very much at issue. The offenses with which Van was charged were alleged to have been committed from December 8 to 17, 2001, after J.G.C. claimed to have withdrawn his initial consent t
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