## Facts

- Charles Saunders and Bernard Busby were indicted for rape, assault with intent to rape, and armed robbery arising from an incident in Newark on July 23, 1973.
- The complainants alleged they were forcibly taken into a car, driven to a parking lot, and compelled to have sexual intercourse; they claimed they did not resist or escape because the men were armed.
- Saunders and Busby admitted intercourse but contended it was consensual and allegedly exchanged for a promise of marijuana cigarettes.
- The trial judge, sua sponte, instructed the jury that fornication (N.J.S.A. 2A:110-1) was a lesser included offense if the jury acquitted on the indicted charges.
- The jury acquitted both defendants of the indicted offenses but convicted them of fornication.
- Saunders challenged the fornication statute’s constitutionality; the trial court upheld the statute, and the Appellate Division affirmed.

## Issues

1. Whether New Jersey’s fornication statute criminalizing consensual sexual intercourse between unmarried adults violates privacy and related guarantees under the New Jersey Constitution.
2. Whether the statute is unconstitutional due to selective or discriminatory enforcement.
3. Whether fornication could properly be treated as a lesser included offense permitting conviction without a specific indictment for that offense.

## Decision

- The Supreme Court of New Jersey reversed Saunders’s fornication conviction.
- The Court held the fornication statute is unconstitutional as applied to private, consensual sexual intercourse between consenting adults under the New Jersey Constitution.
- Because the conviction rested on an unconstitutional application of the statute, it could not stand; the Court did not base its disposition on the lesser-included-offense or selective-enforcement theories.

## Legal Principles

- The New Jersey Constitution protects a sphere of personal privacy and autonomy covering private, noncommercial, consensual sexual conduct between adults.
- The State may not criminalize such conduct solely to enforce traditional moral judgments; intrusion into intimate decisions requires a substantial, legitimate governmental interest.
- State constitutional guarantees may provide broader protections than the federal baseline, permitting independent invalidation of criminal statutes that unduly burden private adult intimacy.
- Evidence that a morals offense is rarely prosecuted and typically charged only after more serious accusations fail may raise equal protection concerns, but invalidation may rest on the statute’s unconstitutional reach alone.

## Conclusion

The court set aside Saunders’s conviction because New Jersey’s fornication statute, as applied to private consensual intercourse between unmarried adults, violated state constitutional protections for privacy and personal autonomy, and thus could not serve as a basis for criminal punishment.


State v. Saunders, 75 N.J. 200, 381 A.2d 333 (N.J. 1977)