The following opinion has achieved a kind of “cult status” in numerous underground law libraries around the country (including the law library at my alma mater law school, the University of Michigan, where the old printed pages of the decision are “well thumbed”): Lason v. State, 12 So.2d 305 (1943) [all emphasis added by LP!].

 LASON V. STATE (two cases). Supreme Court of Florida, Division A, March 2, 1943. Appeal from Circuit Court, Walton County; R.A. McGeachy, Judge.

John Lason was convicted under two informations of committing the abominable and detestable crime against nature per os and he appeals. Affirmed.

W.W. Flournoy, of De Funiak Springs, for appellant.  J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen., for appellee.

BUFORD, Chief Justice.

The accused, having been convicted under two separate informations, in one of which it was charged, “that on the 20th day of March, 1942, at and in the County of Walton, State of Florida, John Lason, unlawfully did then and there commit the abominable and detestable crime against nature per os [see LP’s commentary below] with one Ruby Cawthon, a female person, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida”; and in the other the like offense was charged in the identical language except for the difference in the name of the person with whom the accused is alleged to have committed the offense.

Counsel has requested that we consider both cases together, which we do.

There is no question about the facts in either case.  Aside from the evidence produced by the State, the accused testified as a witness in his own behalf, that he was seventy-six years of age;  that he had not experienced an erection in many years, but that on several occasions he had indulged in venereal affairs with each of the girls named in the information when both girls were present; that in accomplishing these affairs he had licked and extended his tongue into the genital orifice of each of the girls and had allowed and permitted each of the girls to take his sexual organ into her mouth, the result of which he testified was “pleasurable”.

The controlling factor to be determined is presented by the appellant’s first question posed in the following language:

1. “Does the one specific crime definitely defined and limited by Section 7567, C.G.L. -1927; 3534 G.S. (1906) 5424 R.G.S.–1920; Ch. 1637, Sub. Ch.8, Acts 1868, Sec. 17, comprehend or include the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his rag-like penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in his feeble and aged condition impelled by the irresistable impulse, in turn he would kiss and put his tongue in their little though potentially influential and powerful vaginas?”

It appears to us that we have determined this question contrary to appellant’s contention.

In Ephriam v. State, 82 Fla. 93, 89 So. 344, we said:

“The question presented is whether the crime defined by section 3534 Gen.Stats. 1906 comprehends the act of copulation between two human beings per os. The statute above referred to is the only one upon the subject.  It provides for punishment for the commission of the ’abominable and detestable crime against nature.’ If the statute includes the act committed by the two defendants upon the person named Son Gary, there is no merit in the assignments of error and the judgment should be affirmed. 

“The evidence is undisputed. The act for which the defendants were indicted under the statue referred to was proven. A discussion of the loathsome, revolting crime would be of no edification to the people, nor interest to the members of the bar. [Wanna bet?] The creatures who are guilty are entitled to a consideration of their case because they are called human beings [!] and are entitled to the protection of the laws.

“Other courts in the discharge of the duties devolving upon them have been compelled to consider the same question as is presented in this case, and held that acts like those proven in this case constituted the ‘detestable crime against nature.’ ”

We held the act as charged to be within the inhibition [sic] of the statute and cited numerous cases supporting that view.

In Jackson v. State, 84 Fla. 646, 94 So. 505, we re-affirmed the holding in the Ephriam case. 

Appellant’s attorney has presented an exhaustive brief contending that the crime denounced by the statute may be committed only per anus, making a strong argument and citing many cases in support of his contention. We are not persuaded, however, that we should follow either the argument or authorities so cited because we hold to the view that the authorities cited by Mr. Justice Ellis in the Ephriam case, supra, and also the authorities cited in Woods v. State, 10 Ala.App. 96, 64 So. 508; in State v. Guerin, 51 Mont. 250, 152 P. 747, and in Glover v. State, 179 Ind. 459, 101 N.E. 629, enunciate the correct construction of the statute under consideration. Much might be written concerning the history and prevalence of the crime in various times and in different countries, and of the methods of its commission, as well as the baneful effects which it has had upon the mental, moral and physical condition of those peoples amongst whom it is and has been prevalent. It is sufficient to say here, however, that all unnatural forms and methods of coitus have proven themselves detrimental to both health and morals.

Other questions and contentions have been presented and carefully considered. We find no reversible error reflected in either record.

Both judgments are affirmed. So ordered.

TERRELL, CHAPMAN and ADAMS, JJ., concur.

COMMENT BY L. POLLACK ESQ.:

No matter how many times I read this opinion, I can’t help but burst out laughing at some point. If I didn’t know any better, I would think the publication of this decision was a hoax. Even the southern judge’s name, “Justice Buford,” seems like a joke (remember the fictional movie character Judge Buford T. Justice?).  But although the opinion may seem to ”lack penetration” in its analysis, it is not just “tongue in cheek.” 

To begin with, in order to fully understand this opinion, one needs to know what the court meant by the term,  ”the abominable and detestable crime against nature per os.”     Webster’s New Universal Unabridged Dictionary defines “os” as from the Latin, meaning “in anatomy, an opening, as a mouth; an entrance, as the orifice of the vagina.”  Mr. Lason was guilty of the “crime against nature” of allowing his tongue to enter the girls’ ”little though potentially influential and powerful vaginas.”

The defense argued that this abomination can only be committed “per anus.”  In fact, counsel’s brief was “exhaustive” on this point.  The court, however, was convinced “that all unnatural forms and methods of coitus have proven themselves detrimental to both health and morals.” Defendant’s “oral argument” failed to penetrate the court’s naked prejudice; no doubt about it, Mr. Lason took a licking back in ‘42.  

The seminal (unseminal?) Lason case and its progeny, like the Fine case (see below) achieved a kind of comic irony through their singular focus on, and disgust with, the mechanics of the sex acts themselves, while minimizing or essentially ignoring, any issues relating to the abuse and victimization of the minors involved.

Decision’s History:

The Lason case was cited with approval several times over the next 50 years.  Just a few months after the Lason case, the Florida courts went into an even deeper (and hence, more ludicrous) analysis of the topic: “Considering the conduct condemned and object attempted to be accomplished by the law this writer sees no distinction between the insertion of the male organ in the mouth as described in Lason v. State supra, and placing the tongue in the female organ, as here. Both, unquestionably, are abominable and detestable; both offend nature’s laws; both, doubtless, spring from a depraved sexual desire. The base immorality displayed in either case justifies any punishment which may be meted out under the law. At one state in the progress of Anglo-Saxon Jurisprudence the penalty was burning or burying alive.”  Fine v. Florida, 14 So.2d 408 (1943).

In Delaney v. Florida, 190 So.2d 578 (1966), the court stated “Although the opinions of this court are not always the essence of clarity, and never as lucid as we would have them, in this instance those previously rendered on this subject clearly advise all people that in this state the abominable crime against nature includes copulation either by mouth or by anus.”

Finally, however, the Florida courts became sensitive to the fact that by emphasizing the “abominable and detestable” and “unnatural” nature of oral sex, they were missing the forest for the trees. By focusing on the issue of whether oral sex included “penetration,” the courts were missing the real point of the law, that minors need to be protected against any and all type of sexual abuse and contact.  Thus in Swain v. Florida, 172 So.2d 3 (1965), the court indicated its annoyance with the question of whether Lason required actual penetration, and announced that the focus of the law should be on the unlawful sexual contact with a minor, rather than whether “a crime against nature” had been committed.

Finally, in 1971, the Florida Supreme Court declared that statutes which banned “unnatural” sexual acts using language such as “abominable and detestable” were outdated and unconstitutionally vague. Franklin v. Florida, 257 So.2d 21 (1971). The Franklin court noted that the statutory language at issue in Lason dated to 1868, and stated “We do not, of course, here sanction historically forbidden sexual acts, homosexuality or bestiality. We only say that in this, as in any other conduct which is made a crime by statute, the forbidden conduct must be stated in terms which meet the constitutional test, i.e., that it is understood by the average man of common intelligence.” 

As for the Lason case, it has acquired a kind of legendary status in Florida jurisprudence, for the highly descriptive, yet oddly formal, way in which the sexual activities of John Lason and Ruby Cawthon were detailed.  In fact, in a 2005 case, Kasischke v. State, the Florida Supreme Court itself derided the Lason case, stating “Unlike Lason v. State, 12 So. 2d 305 (Fla. 1943), we do not believe that more graphic descriptions are necessary.”

For amusement, each month I will post an actual published court opinion my research has uncovered, that is in my humble opinion absolutely hilarious or ridiculous. Since this is the first time I have blogged, I think it is appropriate to start with a personal favorite of mine, Christy Bros. Circus v. Turnage, 38 Ga. App. 581, 144 S.E. 680(1928), in which the court wrestled with the issue of damages for emotional distress without physical injury. After all, Christy Bros. is more than just another “crappy” opinion;  it is the very touchstone of horseshit court decisions:

“Action by Velna Turnage against the Christy Bros. Circus. Judgment for plaintiff, and defendant brings error. Affirmed.

STEPHENS, J. There may be a recovery of damages for mental suffering, humiliation or embarrassment resulting from a physical injury of which they are inseparable components.

Any unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.

Since the right to recover for a mental condition induced by the tortious act of another is dependent upon the existence of a physical injury, a person suffering a mental condition dependent upon an injury to the person may, in suing to recover damages for the injury, limit the damages to the mental suffering alone, and it is not essential to his right to the recovery of damages for mental suffering that the physical injury out of which the mental suffering arose, was productive of any actual physical hurt or damage, or that he should seek a recovery for such physical hurt or damage.

Where a petition alleged that the plaintiff was an unmarried white lady, and that while in attendance as a guest of the defendant at a circus performance given by the defendant, and while seated in one of the seats provided by the defendant for the defendant’s guests at the circus, a horse, which was going through a dancing routine immediately in front of where plaintiff was sitting, was by the defendant’s servant, who was riding upon the horse, caused to back towards the plaintiff, and while in this situation the horse evacuated his bowels into her lap, that this occurred in full view of many people, some of whom were the defendant’s employees, and all of whom laughed at the occurrence, that as a result thereof the plaintiff was caused much embarrassment, mortification, and mental pain and suffering, to her damage in a certain amount, that the damage alleged was due entirely to the defendant’s negligence and without any fault on the part of the plaintiff, the petition set out a cause of action and was good as against a general demurrer.

The evidence authorized the inference that the plaintiff was damaged, by reason of humiliation and embarrassment, in the sum of $500, and the verdict found for her in that amount was authorized.”

Commentary by Larry Pollack: 

Christy Bros.   set forth what came to be known as the “impact rule,” that in order for someone to recover damages for mental/emotional distress, that person must have been hit or “touched” [splattered?] by something in a physical sense. Believe it or not, this case was an important case in Georgia jurisprudence for 60 years, until it was expressly overruled by the Georgia Supreme Court in 1989 in the case of OB-GYN Assoc. v. Littleton, 259 Ga. 663.  There, the court modified the rule to require that the individual sustain an actual physical harm; the court noted that the rule articulated in the Christy Bros. case was an “absurdity.”  One thing is certain: that the horse was definitely not “impacted” at the time it committed its foul assault upon the nice “white lady.”  

The issue of damages for the negligent infliction of emotional distress is actually an important and ever evolving aspect of personal injury law. Traditionally, under the common law, damages for emotional distress are not, and have really never been, allowed except as part-and-parcel of a physical injury to the plaintiff.  Yet interestingly, at a time when some more liberal/progressive courts in states like California and New Jersey were taking “baby steps” towards allowing people to recover for emotional distress without physical harm under certain extremely limited conditions, the Georgia courts were apparently far ahead of their time–until the Georgia Supreme Court moved in the opposite direction and restricted such damages in 1989. See the famous case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968) (recovery of emotional distress damages allowed for shock of watching daughter die in an auto accident); or the infamous case of Eyrich v. Dam, 193 N.J. Super. 244 (App. Div. 1984) 473 A.2d 539 (five-year-old boy fatally mauled by leopard at a circus performance dies in father’s arms; father allowed to collect damages for psychological injury).   

Tort law is often regarded as a form of “social engineering,” and cases discussing whether to allow damages for negligent infliction of emotional distress must decide between competing public policy interests. Without limits on the availability of damages for negligent infliction of emotional distress, the results would be absurd. For example, thousands of TV viewers, including relatives of those aboard, watching an airline disaster, could sue for psychological injuries. See Saunders v. Air Florida, 558 F. Supp. 1233 (D.C. Cir. 1983); Burke v. Pan Am, 484 F. Supp. 850 (SD NY 1980).

So courts have limited recovery to those involuntarily finding themselves directly in the “zone of danger of emotional impact.” Society expects individuals to absorb a lot of emotional harm, with the expectation that, alas, life is filled with pain and embarrassment and one’s skin must be thick. As one commentator noted, “To allow all of these feelings to be the basis of legal claims would overwhelm the courts with trivialities, sap people’s emotional resiliency, and seriously restrict freedom of movement in a society in which the tiniest social error could lead to a lawsuit.” Note, Bystander Recovery, 54 S. Cal. L. Rev. 847, 868 (1981).

But freedom of movement also has its limits, as the circus found out in Christy Bros.

Homework:

Should a woman who finds an unwrapped condom in her chicken salad wrap at Applebees, be allowed to recover for ”emotional distress?” For the answer, see Chambley v. Apple Restaurants, 233 Ga. App. 498, 504 S.E. 2d 551 (1998). Hint: testing proved that the condom was never “used.”  

Well, here I am about to start a law weblog or “laweblog,” and just to get it off the ground, in the spirit of late March and the imminent approach of Spring, I offer this original poem I wrote some time ago, about a dog I once knew named Travis:

TRAVIS FROM HIS FUNK

When the morning breaks, and sunshine fills his eyes,

Confusion grips him in a vise:

Travis wakes.

What unseen sights lie ahead?

He wags his tail and wonders;

He trumpets forth a fearless yelp

As down the stairs he stumbles

–serves him right, the silly whelp

(his Mistress softly mumbles)

Dogs hear things that humans don’t:

A whistle, ghost, or hind;

But Travis hears the Song of Spring,

And he replies in kind.

Travis rises with the sun

And dances all day long;

He celebrates his happy youth

And barks a springtime song

–his mistress scarcely knows the truth

(she thinks his brain’s gone wrong)

Forward joyful Travis!

Incapable of being taught

That one’s own shadow can’t be caught,

His springtime folly brings to mind

Remembrance of a long-lost time:

Locked inside an attic trunk,

The relics of my youthful springs

Gather dust until March brings

Travis from his Funk.

At the Law Offices of Larry M. Pollack, Esq., New Jersey Personal Injury attorneys can help you if you have been a victim of the following types of cases or injuries: