Rose v. Locke, 423 U.S. 48 (1975)

In a per curium opinion, the U.S. Supreme Court held that a Tennessee statute proscribing ‘‘crimes against nature’’ was not unconstitutionally vague as applied to the act of cunnilingus (oral stimulation of the vulva or clitoris). The Supreme Court’s decision was without plenary review; thus, it disallowed the parties the opportunity for oral arguments. Three justices dissented: Brennan, Marshall, and Stewart.

Respondent Locke was convicted and sentenced to five to seven years imprisonment under Tennessee’s criminal code for having committed a ‘‘crime against nature.’’ The evidence showed that under threat of knifepoint, he forced his female neighbor to submit to him twice performing cunnilingus upon her. The respondent challenged the Tennessee statute’s proscription of ‘‘crimes against nature’’ on due process grounds: he claimed that the language ‘‘crime against nature’’ was so vague, that it did not give citizens fair warning of just what sort of acts were prohibited. According to the respondent, the main vice with the Tennessee statute was that several states differed as to whether the words ‘‘crime against nature’’ were narrowly or broadly construed. A narrow construction limited the offense to sodomy; a broad construction included many other forms of sexual activity.

The Supreme Court was unconvinced with the respondent’s vagueness argument. It held that the challenged statutory phrase, ‘‘crime against nature’’ was no vaguer than many other terms describing criminal offenses at common law. In fact, all that the due process clause required, in terms of notice, is that laws give ‘‘sufficient warning that men may conduct themselves so as to avoid that which is forbidden.’’ Furthering its position, the Court cited three specific instances giving the respondent sufficiently clear notice that his conduct would be included within the Tennessee statute’s proscription. First, in the1955 Fisher case, the Tennessee courts rejected the claim that ‘‘crime against nature’’ did not include fellatio. Thus, this decision extended the statute’s scope beyond the traditional common law definition of ‘‘crime against nature,’’ which was limited to anal sex. Second, in the 1959 Sherril case, the Tennessee state courts further emphasized that the ‘‘crime against nature’’ language was to be given the broadest meaning possible. Third, in the 1959 Townsend case, a Maine statute, which the Tennessee courts had twice previously equated with its own, was made applicable to cunnilingus. Although Tennessee courts had never previously applied their statute to the act of cunnilingus, other jurisdictions had; and this was enough notice to the respondent.

The vagueness language of the Rose decision has been frequently cited in subsequent Supreme Court decisions. In contexts other than the First Amendment, it is sufficient that a statutory proscription only make out a rough area of prohibited conduct.

KERRY L. MUEHLENBECK

References and Further Reading

• U.S. Const., Fourteenth Amendment.

Cases and Statutes Cited

• Fisher v. State, 197 Tenn. 594 277 S.W. 2d 340 (1955)
• Sherril v. State, 204 Tenn. 427, 429, 321 S.W. 2d 811, 812 (1959)
• State v. Townsend, 145 Me. 384, 71 A. 2d 517 (1950)