COMMONWEALTH vs. JAMES M. HILL.

BRAUCHER, J . The defendant appeals from a conviction under G. L. c. 272, Section 35, of an "unnatural and lascivious act with another person," committed in September, 1969. The case was tried before our decision in Commonwealth v. Balthazar, 366 Mass. 298 (1974), [Note 1] and it is contended that the indictment should be dismissed on the authority of Balthazar v. Superior Court, 573 F.2d 698 (1st Cir. 1978). We do not agree, but in view of the treatment of the issue of consent, we think fundamental fairness requires a new trial.

In October, 1972, the defendant was indicated for rape and for committing an unnatural and lascivious act. [Note 2] After a mistrial in October, 1973, he was tried by jury in April, 1974, acquitted of rape, and convicted of an unnatural and lascivious act. Pending appeal he was admitted to bail by a single justice of this court. In October, 1977, he filed a motion for new trial, which was denied in December, 1977.

There was evidence of the following events. The defendant met the victim on September 29, 1969. After dinner and drinks, they went to the defendant's motel room. Later the victim tried to drive home, but stopped in a

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parking lot and went to sleep. The defendant took her back to his room. When she awoke she was naked. The defendant beat her and forced her to engage in intercourse, cunnilingus and fellatio. She believed the defendant had drugged her. She first reported these events on October 16, 1969.

1. Vagueness. In Balthazar v. Superior Court, 573 F.2d 698, 700-702 (1st Cir. 1978), a divided court held G. L. c. 272, Section 35, "vague as applied." The majority first said that the issue before them was "not whether fair notice was given that these acts, if forced, were prohibited," since force was not an element of the indictment and was not an issue at trial. Alternatively, treating the case as involving nonconsensual sexual acts of fellatio and oralanal contact, they seem to have concluded that Balthazar could reasonably believe that such acts did not deviate from "accepted customs and manners," as required by Jaquith v. Commonwealth, 331 Mass. 439, 442 (1954). One of the three judge disagreed "strongly" on the latter point.

Our decisions are contrary on both points. Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974). Commonwealth v. Hanscomb, 367 Mass. 726, 731 (1975). Commonwealth v. Jackson, 3 Mass. App. Ct. 941 (1975). Commonwealth v. Deschamps, 1 Mass. App. Ct. 1, 4-5 (1972). Cf. Commonwealth v. Morgan, 369 Mass. 332, 344-345 (1975), cert. denied, 427 U.S. 905 (1976) (point not argued). "We are of course bound by decisions of the Supreme Court on questions of Federal law, but we are not concluded by decisions of other Federal courts, although we give respectful consideration to such lower Federal court decisions as seem persuasive." Commonwealth v. Masskow, 362 Mass. 662, 667 (1972). But our decision here is in effect reviewable by writ of habeas corpus in a United States District Court which would be bound by the Balthazar decision in the Court of Appeals. "It would be undesirable for us to affirm the conviction of a defendant if the inevitable consequence were that he would be

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released on a writ of habeas corpus." Id. at 668. We therefore analyze the present case on the assumption that the Federal Balthazar decision reached a correct result under Federal law, although we do not accept, even as assumption, everything that is said in the opinion.

The present case does not involve freedom of expression or communication in a sense that would bring into play the "overbreadth" doctrine associated with the First Amendment to the Federal Constitution, and the defendant cannot invoke the rights of others in hypothetical situations. Commonwealth v. LaBella, 364 Mass. 550, 553-554 (1974). In the Balthazar case the statute was not held unconstitutional on its face, but only in its "application to the particular case." 573 F.2d at 700. In the present case, unlike the Balthazar case, evidence was presented on the issue of consent, and we think the issue before us is whether the defendant, at the time he acted, was on fair notice that his conduct, in the totality of circumstances, was prohibited.

The jury could have found from the evidence that the defendant drugged the victim on the day he met her, took her to his motel room, undressed her while she was unconscious, and when she awoke beat her and forced her to engage in intercourse, cunnilingus and fellatio. They could further have found that such sexual behavior deviated from accepted customs and manners. We find it impossible to believe that any competent adult would be surprised at the conclusion that the conduct so found was prohibited. Thus there was no error in the denial of the defendant's motion for a directed verdict.

2. Consent. In Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), we concluded that the statute "must be construed to be inapplicable to private, consensual conduct of adults." That interpretation was required, we thought, by changes in community values in the years after the Jaquith decision in 1954. We relied on Supreme Court decisions dating from 1965. Balthazar's acts took place in 1972, the acts of the present defendant in 1969.

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The Commonwealth now urges us to confine that Balthazar holding to cases arising after the decision. But that holding is rooted in constitutional considerations, and we think the defendant is entitled to the benefit of it. Commonwealth v. Reilly, 5 Mass. App. Ct. 435, 436-438 (1977).

The issue of consent was fully tried, and the jury was charged that the victim's lack of consent was an element of the crime of rape. But no such charge was requested or given with respect to an unnatural and lascivious act. In other cases we have refused to consider the issue of consent when it had not been presented at trial. Commonwealth v. Morgan, 369 Mass. 332, 344 (1975), cert. denied, 427 U.S. 905 (1976). Commonwealth v. Balthazar, 366 Mass. 298, 302-303 (1974). Commonwealth v. LaBella, 364 Mass. 550, 554 (1974). But neither counsel nor the judge had the benefit of our decision in the Balthazar case, and we do not insist on exceptions where counsel could not have anticipated the ground of objection. Commonwealth v. Stokes, 374 Mass. 583, 587-590 (1978). Commonwealth v. Cook, 371 Mass. 832, 833 (1977). Since it is quite possible that consent was the basis of the verdict of not guilty on the rape charge, we think fundamental fairness requires that the defendant be afforded a new trial. See Balthazar v. Superior Court, 573 F.2d 698, 702 (1st Cir. 1978) (dissenting opinion).

Judgment reversed.

Verdict set aside.