Louisiana and Privacy

[Doug Miller]

(My last post on this -- I promise.) It's worth noting that one of the arguments
Smith made on appeal was discriminatory enforcement.  As part of this argument,
Smith pointed out that the woman with whom he had oral sex was just as guilty under
the statute and given the facts as found by the court, yet she wasn't charged.  This
idea has some intuitive appeal, in the sense that Smith is technically correct, but
it probably has never occurred to the D.A. to prosecute the woman.  Of course,
selective prosecution claims are notoriously difficult to prove, and arguably Smith
hasn't even pointed to a single case of non-prosecution under similar
circumstances.  (The woman was not similarly situated at the time the charging
decisions were made, because at that time it appeared that all the sex was
non-consensual.  Moreover, because this "responsive verdict" was reached ten days
after the case was submitted to the court, there was never actually a charging
_decision_ by the D.A. as to Smith and this charge of simple crime against nature,
so far as I can tell.) The court of appeals never reached the discriminatory
enforcement argument because of its decision on privacy.  But it brought me up short
for a second, and made the conviction look even a bit more strange, when I realized
that, according to the court's version of the facts, the woman (are we required to
call her "the non-victim" now?) had committed the offense just as certainly as the
defendant had.

Doug Miller
South Texas College of Law
millerd at stcl.tamu.edu

Edward Hartnett wrote:

> Professor Miller is right that "simple crime against nature" can be -- and
> is, under LA law -- a lesser included offense of "aggravated crime against
> nature." To the extent that my prior post suggested otherwise, I apologize.
> (As an aside, it seems that under LA law, lesser included offenses are a
> subset of "responsive verdicts"; that is, a statutory list of "responsive
> verdicts" sometimes permits conviction of offenses which are not lesser
> included offenses.)
>
> I agree with Professor Miller that the trial court's decision may well have
> been a compromise.  And he may well be right that the DA's office was
> sufficiently blinded by its view of the factual setting to adequately
> respond to the constitutional argument the defendant raised and that this
> failure may have affected the decision.
>
> I do, however, doubt that the appellate court was motivated by its
> discomfort with a compromise verdict because appellate courts are almost
> never disturbed by such things in criminal cases.  It seems to me that the
> other two proferred explanations are far more likely: either the court was
> striking a blow for sexual liberty, or it was reflecting traditional
> hostility to women who claim rape.  Or, perhaps, appropos of the Roe thread,
> it was doing both: just as some have critiqued Roe as freeing male sexual
> aggression, perhaps the decision reflects a tendency to view sexual liberty
> as largely equivalent to male sexual access to objects of desire.


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