Gryczan v. State

942 P.2d 112 (1997)

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Nature of the Case

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Facts

Ps filed a declaratory judgment action, pursuant to Title 27, chapter 8 of the Montana Code, challenging the constitutionality of that portion of Montana's deviate-sexual-conduct statute, § 45-5-505, MCA, that criminalizes consensual sex between adults of the same gender. P contends that § 45-5-505, MCA, is unconstitutional under Article II, Sections 4 and 10 of the Montana Constitution and that it violates the due process clause of the Fourteenth Amendment to the United States Constitution. Ps are three men and three women residing in Montana who are homosexuals. They assert that they have in the past and intend in the future to engage in conduct that violates § 45-5-505, MCA. Under the statute, any person who knowingly engages in deviate sexual relations or who causes another to engage in deviate sexual relations commits the offense of deviate sexual conduct. It provides for up to 10 years in jail and or a $50,000 fine. Deviate sexual relations is defined at § 45-2-101(20), MCA, as 'sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal.' 'Sexual contact' and 'sexual intercourse' are defined as: 'Sexual contact' means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party. 'Sexual intercourse' means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient. D moved to dismiss the declaratory judgment action contending that Ps lacked standing to challenge the statute and that there is no justiciable controversy. The District Court denied D's motion. D appealed.