The opinion of the court was delivered by: Dalianis, C.J.
a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.
Resubmitted: July 20, 2012
The State appeals the order of the Superior Court
(McHugh, J.) dismissing charges filed against the defendant, Burton G. Hollenbeck, Jr., Ph.D., because it determined that the statute upon which they were based, RSA 632-A:2, I(g)(1) (2007), violated his state and federal substantive due process rights. We reverse.
For the purposes of this appeal, the following facts are undisputed. At the time of the alleged crimes, the defendant was a licensed psychologist, who provided therapy to the complainant in 2007. Less than a year after the therapy ended, the two became sexually involved. In April 2010, the defendant was charged with thirty counts of aggravated felonious sexual assault (AFSA) for engaging in sexual penetration with the complainant between February 1, 2008, and December 9, 2008. The indictments alleged that by engaging in sexual penetration with the complainant "within one year of the termination of their therapeutic relationship," the defendant "act[ed] in a manner which is not professionally recognized as ethical," thereby violating RSA 632-A:2, I(g)(1).
In December 2010, the defendant moved to dismiss the indictments,
arguing, inter alia, that RSA 632-A:2, I(g)(1) violated his state and federal rights to substantive due process because it "criminalizes the private sexual conduct of consenting adults." The trial court agreed, and this appeal followed.
The issue before us is one of constitutional law, which we review de novo. State v. MacElman, 154 N.H. 304, 307 (2006). In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds. State v. Gubitosi, 157 N.H. 720, 727 (2008). In other words, we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution. Id. We first address the defendant's claim under the State Constitution and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
RSA 632-A:2, I(g) provides:
A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person [w]hen the actor provides therapy, medical treatment or examination of the victim and in the course of that therapeutic or treating relationship or within one year of termination of that therapeutic or treating relationship:
(1) Acts in a manner or for purposes which are not professionally recognized as ethical or acceptable; or
(2) Uses this position as such provider to coerce the victim to submit.
The only portions of this statute at issue are those that criminalize engaging in sexual penetration with another "within one year of the termination" of the therapeutic or treating relationship between them when doing so is not "professionally recognized as ethical or acceptable." RSA 632-A:2, I(g)(1). The other portions of RSA 632-A:2, I(g)(1) that relate to sexual relationships between therapists and their current clients are not at issue. Nor is RSA 632- A:2, I(g)(2), which criminalizes sexual contact between a therapist and his or her current or former client when he or she "[u]ses this position as such provider to coerce the victim to submit," at issue.
Our first task is to determine the scope of the defendant's challenge to RSA 632-A:2, I(g)(1). See Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339 (2010). "An appellant may challenge the constitutionality of a statute by asserting a facial challenge, an as-applied challenge, or both." United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011). "A facial challenge is a head-on attack of a legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications." Id. (quotation and brackets omitted). To prevail on a facial challenge to a statute, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987); see State v. Furgal, 161 N.H. 206, 210 (2010); cf. United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (in First Amendment context, court recognizes another type of facial challenge under which a law may be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep" (quotation omitted)). "[A]n as-applied challenge," on the other hand, "concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case." Carel, 668 F.3d at 1217 (quotation and emphasis omitted).
The defendant argues that he attacked RSA 632-A:2, I(g)(1) both facially and as-applied, but contends that the relief he sought, dismissal of the indictments against him, requires us to consider his challenge only as an as- applied challenge. See id.; John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2817 (2010). The defendant's as-applied challenge relies solely upon the language of the indictments, which tracks, nearly exactly, the language of RSA 632-A:2, I(g)(1). Under these circumstances, there is no meaningful difference between his as-applied and facial challenges. See United States v. Riquene, No. 3:10-cr- 227-J-34TEM, 2012 WL 171080, at *7 n.9 (M.D. Fla. Jan. 20, 2012) (when as- applied challenge is not "tied to any case-specific discussion that would make [defendant's] as-applied challenge different from his facial challenge," court treats them as the same; moreover, to extent that as-applied challenge depends upon facts and evidence beyond those given in indictment, it must be denied before trial).
The dissent argues that because the trial court stated that it was undisputed that the relationship between the defendant and the complainant was consensual, the defendant's as-applied challenge is ripe for review. We disagree. Under the statute variation at issue, lack of consent is irrelevant; it is not an element of the crime for which the defendant was charged. See RSA 632-A:2, I(g)(1). As the dissent itself points out, "the legislature has determined that all patients are legally incapable, for an admittedly arbitrary period of one year after the termination of therapy, of consenting to sex with a former therapist." Accordingly, the trial court's finding did not transform this case from a facial to an as-applied challenge.
Moreover, in this case, unlike the cases upon which the dissent relies, the operative facts are disputed. In this case, we have no facts, jury-decided or otherwise, which would allow us to opine as to whether the complainant is part of "that subset of adults who may not easily refuse consent to sex with a former therapist." Accordingly, we consider the defendant's claim to be a facial challenge to the portion of RSA 632-A:2, I(g)(1) that relates to therapists and their former clients, and hold that to ...