Michael M. v. Superior Court
of Sonoma County, 450 U.S. 464 (1980).
The
question presented in this case is whether California's "statutory rape"
law, § 261.5 of the Cal.Penal Code Ann. (West Supp.1981), violates the Equal
Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse
as "an act of sexual intercourse accomplished with a female not the wife
of the perpetrator, where the female is under the age of 18 years."
The statute thus makes men alone criminally liable for the act of sexual
intercourse.
In
July 1978, a complaint was filed in the Municipal Court of Sonoma County,
Cal., alleging that petitioner, then a 17 1/2 year old male, had had unlawful
sexual intercourse with a female under the age of 18, in violation of § 261.5.
The evidence, adduced at a preliminary hearing showed that at approximately
midnight on June 3, 1978, petitioner and two friends approached Sharon, a
16 1/2 year old female, and her sister as they waited at a bus stop. Petitioner and Sharon, *467
who had already been drinking, moved away from the others and began
to kiss. After being struck in the face for rebuffing
petitioner's initial advances, Sharon submitted to sexual intercourse with
petitioner. Prior to trial, petitioner
sought to set aside the information on both state and federal constitutional
grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender.
The trial court and the California Court of Appeal denied petitioner's
request for relief and petitioner sought review in the Supreme Court of California.
The
Supreme Court held that "section 261.5 discriminates on the basis of
sex because only females may be victims, and only males may violate the section."
25 Cal.3d 608, 611, 159 Cal.Rptr. 340, 342, 601 P.2d 572, 574. The
court then subjected the classification to "strict scrutiny," stating
that it must be justified by a compelling state interest.
It found that the classification was "supported not by mere social
convention but by the immutable physiological fact that it is the female exclusively
who can become pregnant." Ibid.
Canvassing "the tragic human costs of illegitimate teenage pregnancies,"
including the large number of teenage abortions, the increased medical risk
associated with teenage pregnancies, and the social consequences of teenage
childbearing, the court concluded that the State has a compelling interest
in preventing such pregnancies. Because
males alone can "physiologically cause the result which the law properly
seeks to avoid," the court further held that the gender classification
was readily justified as a means of identifying offender and victim.
For the reasons stated below, we affirm the judgment of the California
Supreme Court. [FN1]
FN1. The lower federal
courts and state courts have almost uniformly concluded that statutory rape
laws are constitutional. See, e. g.,
Rundlett v. Oliver, 607 F.2d 495 (CA1 1979); Hall v. McKenzie, 537 F.2d 1232 (CA4 1976); Hall v. State, 365 So.2d 1249, 1252 1253 (Ala.App.1978),
cert. denied, 365 So.2d 1253 (Ala.1979); State v. Gray, 122 Ariz. 445, 446 447, 595
P.2d 990, 991 992 (1979); People
v. Mackey, 46 Cal.App.3d 755, 760 761, 120 Cal.Rptr. 157, 160, cert. denied,
423 U.S. 951, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975); People v. Salinas, 191 Colo. 171, 551 P.2d
703 (1976); State v. Brothers, 384
A.2d 402 (Del.Super.1978); In re W.E.P.,
318 A.2d 286, 289 290 (D.C.1974); Barnes
v. State, 244 Ga. 302, 303 304, 260 S.E.2d 40, 41 42 (1979);
State v. Drake, 219 N.W.2d 492, 495 496 (Iowa 1974); State v. Bell,
377 So.2d 303 (La.1979); State v. Rundlett, 391 A.2d 815 (Me.1978);
Green v. State, 270 So.2d 695 (Miss.1972);
In re J.D.G., 498 S.W.2d 786, 792 793 (Mo.1973);
State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976); State v. Thompson, 162 N.J.Super. 302, 392
A.2d 678 (1978); People v. Whidden,
51 N.Y.2d 457, 434 N.Y.S.2d 937, 415 N.E.2d 927 (1980); State v. Wilson, 296 N.C. 298, 311 313, 250 S.E.2d 621, 629 630
(1979); Olson v. State, 588 P.2d 1018
(Nev.1979); State v. Elmore, 24 Or.App. 651, 546 P.2d 1117 (1976); State v. Ware, 418 A.2d 1 (R.I.1980); Roe v. State, 584 S.W.2d 257, 259 (Tenn.Cr.App.1979); Ex parte Groves, 571 S.W.2d 888, 892 893 (Tex.Cr.App.1978);
Moore v. McKenzie, 236 S.E.2d 342, 342 343 (W.Va.1977);
Flores v. State, 69 Wis.2d 509, 510 511, 230 N.W.2d 637, 638 (1975).
Contra, Navedo v. Preisser, 630 F.2d 636 (CA8 1980); United States
v. Hicks, 625 F.2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977)
(limited in Rundlett v. Oliver, supra ), cert. denied, 436 U.S. 950, 98 S.Ct.
2858, 56 L.Ed.2d 793 (1978).
*468 **1204 As is evident from our
opinions, the Court has had some difficulty in agreeing upon the proper approach
and analysis in cases involving challenges to gender based classifications.
The issues posed by such challenges range from issues of standing,
see Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), to the
appropriate standard of judicial review for the substantive classification.
Unlike the California Supreme Court, we have not held that gender based
classifications are "inherently suspect" and thus we do not apply
so called "strict scrutiny" to those classifications. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688
(1975). Our cases have held, however,
that the traditional minimum rationality test takes on a somewhat "sharper
focus" when gender based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.*,
97 S.Ct. 451, 464, 50 L.Ed.2d 397 (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,
30 L.Ed.2d 225 (1971), for example, the Court stated that a gender based
classification will be upheld if it
*469 bears a "fair and substantial relationship" to legitimate
state ends, while in Craig v. Boren, supra, 429 U.S. at 197, 97 S.Ct. at 457,
the Court restated the test to require the classification to bear a "substantial
relationship" to "important governmental objectives."
[1][2] Underlying these decisions is the principle that a legislature
may not "make overbroad generalizations based on sex which are entirely
unrelated to any differences between men and women or which demean the ability
or social status of the affected class." Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742, 60 L.Ed.2d 269
(1979) (plurality opinion of STEWART, J.).
But because the Equal Protection Clause does not "demand that
a statute necessarily apply equally to all persons" or require "
'things which are different in fact ... to be treated in law as though they
were the same,' " Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497,
1499, 16 L.Ed.2d 577 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147, 60
S.Ct. 879, 882, 84 L.Ed. 1124 (1940), this Court has consistently upheld statutes
where the gender classification is not invidious, but rather realistically
reflects the fact that the sexes are not similarly situated in certain circumstances.
Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313, 97 S.Ct.
1192, 51 L.Ed.2d 360 (1977); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct.
572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40
L.Ed.2d 189 (1974). As the Court has stated, a legislature may
"provide for the special problems of women." Weinberger v. Wiesenfeld, 420 U.S. 636, 653,
95 S.Ct. 1225, 1236, 43 L.Ed.2d 514 (1975).
[3] Applying those principles to this case, the fact that the California
Legislature criminalized the act of illicit sexual intercourse with a minor
female is a sure indication of its intent or purpose to discourage that conduct.
[FN2] Precisely why the legislature
desired that result is of course somewhat less clear. This Court has long recognized that "[i]nquiries
into congressional motives or purposes are a hazardous matter," United
States v. O'Brien, 391 U.S. 367, 383 384, 88 S.Ct. 1673, 1682 1683, 20 L.Ed.2d
672 (1968); Palmer v. Thompson, 403
U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438 (1971), and the
*470 search for the "actual" or "primary" purpose
of a statute is likely to be elusive. Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555,
563, 50 L.Ed.2d 450 (1977); McGinnis
v. Royster, 410 U.S. 263, 276 277, 93 S.Ct. 1055, 1062 1063, 35 L.Ed.2d
282 (1973). Here, for example, the
individual legislators may have voted for the statute for a variety of reasons.
Some legislators may have been concerned about preventing teenage pregnancies,
others about protecting young females from physical
**1205 injury or from the loss of "chastity," and still others
about promoting various religious and moral attitudes towards premarital sex.
FN2.
The statute was enacted as part of California's first penal code in 1850,
1850 Cal.Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970.
The justification for the statute offered by
the State, and accepted by the Supreme Court of California, is that the legislature
sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great
deference. Reitman v. Mulkey, 387
U.S. 369, 373 374, 87 S.Ct. 1627, 1629 1630, 18 L.Ed.2d 830 (1967).
And although our cases establish that the State's asserted reason for
the enactment of a statute may be rejected, if it "could not have been
a goal of the legislation," Weinberger v. Wiesenfeld, supra, 420 U.S.
at 648, n. 16, 95 S.Ct. at 1233, this is not such a case.
We are satisfied not only that the prevention
of illegitimate pregnancy is at least one of the "purposes" of the
statute, but also that the State has a strong interest in preventing such
pregnancy. At the risk of stating
the obvious, teenage pregnancies, which have increased dramatically over the
last two decades, [FN3] have significant social, medical, and economic consequences
for both the mother and her child, and the State. [FN4] *471 Of particular concern to the State is that
approximately half of all teenage pregnancies end in abortion. [FN5] And of those children who are born, their illegitimacy
makes them likely candidates to become wards of the State. [FN6]
FN3. In 1976 approximately one million 15 to 19 year olds
became pregnant, one tenth of all women in that age group. Two thirds of the pregnancies were illegitimate.
Illegitimacy rates for teenagers (births per 1,000 unmarried females
ages 14 to 19) increased 75% for 14 to 17 year olds between 1961 and 1974
and 33% for 18 to 19 year olds. Alan Guttmacher Institute, 11 Million Teenagers
10, 13 (1976); C. Chilman, Adolescent
Sexuality In a Changing American Society 195 (NIH Pub. No. 80 1426, 1980).
FN4. The risk of maternal death is 60% higher for a teenager
under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15 to 19 year
olds. The statistics further show that most teenage
mothers drop out of school and face a bleak economic future. See, e. g., 11 Million Teenagers, supra, at
23, 25; Bennett & Bardon, The
Effects of a School Program On Teenager Mothers and Their Children, 47 Am.J.
Orthopsychiatry 671 (1977); Phipps
Yonas, Teenage Pregnancy and Motherhood, 50 Am.J. Orthopsychiatry 403, 414
(1980).
FN5. This is because teenagers are disproportionately likely
to seek abortions. Center for Disease Control, Abortion Surveillance
1976, pp. 22 24 (1978). In 1978,
for example, teenagers in California had approximately 54,000 abortions and
53,800 live births. California Center
for Health Statistics, Reproductive Health Status of California Teenage Women
1, 23 (Mar. 1980).
FN6. The policy and intent of the California Legislature evinced
in other legislation buttresses our view that the prevention of teenage pregnancy
is a purpose of the statute. The preamble
to the Pregnancy Freedom of Choice Act, for example, states:
"The legislature finds that pregnancy among unmarried persons
under 21 years of age constitutes an increasing social problem in the State
of California." Cal.Welf. & Inst.Code Ann. § 16145 (West
1980).
Subsequent to the decision below, the California Legislature
considered and rejected proposals to render § 261.5 gender neutral, thereby
ratifying the judgment of the California Supreme Court. That is enough to answer petitioner's contention
that the statute was the " 'accidental by product of a traditional way
of thinking about females.' " Califano v. Webster, 430 U.S. 313, 320, 97 S.Ct. 1192, 1196, 51
L.Ed.2d 360 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct.
1021, 1035, 51 L.Ed.2d 270 (1977) (STEVENS, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source
as is this Court in deciding what is "current" and what is "outmoded"
in the perception of women.
We need not be medical
doctors to discern that young men and young women are not similarly situated
with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer
disproportionately the profound physical, emotional and psychological consequences
of sexual activity. The statute at
issue here *472 protects women
from sexual intercourse at an age when those consequences are particularly
severe. [FN7]
FN7. Although petitioner concedes that the State has a "compelling"
interest in preventing teenage pregnancy, he contends that the "true"
purpose of § 261.5 is to protect the virtue and chastity of young women.
As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose
of that contention. The question for
us and the only question under the Federal Constitution is whether the
legislation violates the Equal Protection Clause of the Fourteenth Amendment,
not whether its supporters may have endorsed it for reasons no longer generally
accepted. Even if the preservation of female chastity were
one of the motives of the statute, and even if that motive be impermissible,
petitioner's argument must fail because "[i]t is a familiar practice
of constitutional law that this court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive."
United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20
L.Ed.2d 672 (1968). In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102,
59 L.Ed.2d 306 (1979), for example, the Court rejected one asserted purpose
as impermissible, but then considered other purposes to determine if they
could justify the statute. Similarly,
in Washington v. Davis, 426 U.S. 229, 243, 96 S.Ct. 2040, 2049, 48 L.Ed.2d
597 (1976), the Court distinguished Palmer v. Thompson, 403 U.S. 217, 91 S.Ct.
1940, 29 L.Ed.2d 438 (1971), on the grounds that the purposes of the ordinance
there were not open to impeachment by evidence that the legislature was actually
motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 270, n. 21, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977); Mobile v. Bolden, 446 U.S. 55, 91, 100 S.Ct.
1490, 1508, 64 L.Ed.2d 47 (1980) (STEVENS, J., concurring in judgment).
**1206
The question thus boils down to whether a State may attack the problem of
sexual intercourse and teenage pregnancy directly by prohibiting a male from
having sexual intercourse with a minor female. [FN8] We hold that such a statute is *473 sufficiently related to the State's objectives to pass constitutional
muster.
FN8. We do not understand petitioner to question a State's
authority to make sexual intercourse among teenagers a criminal act, at least
on a gender neutral basis. In Carey
v. Population Services International, 431 U.S. 678, 694, n. 17, 97 S.Ct. 2010,
2021, 52 L.Ed.2d 675 (1977) (plurality opinion of BRENNAN, J.), four Members
of the Court assumed for the purposes of that case that a State may regulate
the sexual behavior of minors, while four other Members of the Court more
emphatically stated that such regulation would be permissible. Id., at 702, 703, 97 S.Ct., at 2025, 2026 (WHITE,
J., concurring in part and concurring in result); Id., at 705 707, 709, 97 S.Ct., at 2026 2028,
2029 (POWELL, J., concurring in part and concurring in judgment);
Id., at 713, 97 S.Ct., at 2030 2031 (STEVENS, J., concurring in part
and concurring in judgment); id.,
at 718, 97 S.Ct., at 2033 (REHNQUIST, J., dissenting). The Court has long
recognized that a State has even broader authority to protect the physical,
mental, and moral well being of its youth, than of its adults.
See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 72 74, 96 S.Ct. 2831, 2842 2843, 49 L.Ed.2d 788 (1976); Ginsberg v. New York, 390 U.S. 629, 639 640, 88 S.Ct. 1274, 1280
1281, 20 L.Ed.2d 195 (1968); Prince
v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944).
Because virtually
all of the significant harmful and inescapably identifiable consequences of
teenage pregnancy fall on the young female, a legislature acts well within
its authority when it elects to punish only the participant who, by nature,
suffers few of the consequences of his conduct.
It is hardly unreasonable for a legislature acting to protect minor
females to exclude them from punishment.
Moreover, the risk of pregnancy itself constitutes a substantial deterrence
to young females. No similar natural
sanctions deter males. A criminal
sanction imposed solely on males thus serves to roughly "equalize"
the deterrents on the sexes.
We are unable to accept
petitioner's contention that the statute is impermissibly underinclusive and
must, in order to pass judicial scrutiny, be broadened so as to hold the female
as criminally liable as the male. It
is argued that this statute is not necessary to deter teenage pregnancy because
a gender neutral statute, where both male and female would be subject to
prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether
the statute is drawn as precisely as it might have been, but whether the line
chosen by the California Legislature is within constitutional limitations.
Kahn v. Shevin, 416 U.S., at 356 n. 10, 94 S.Ct., at 1737 1738.
In any event, we cannot
say that a gender neutral statute would be as effective as the statute California
has chosen to enact. The State persuasively
contends that a gender **1207 neutral statute would frustrate its interest in effective enforcement.
Its view is that a female is surely less likely to report
*474 violations of the statute if she herself
would be subject to criminal prosecution. [FN9] In an area already fraught with prosecutorial difficulties, we decline
to hold that the Equal Protection Clause requires a legislature to enact a
statute so broad that it may well be incapable of enforcement. [FN10]
FN9. Petitioner contends that a gender neutral statue would
not hinder prosecutions because the prosecutor could take into account the
relative burdens on females and males and generally only prosecute males.
But to concede this is to concede all.
If the prosecutor, in exercising discretion, will virtually always
prosecute just the man and not the woman, we do not see why it is impermissible
for the legislature to enact a statute to the same effect.
FN10. The question whether a statute is substantially related
to its asserted goals is at best
an opaque one. It can be plausibly
argued that a gender neutral statute would produce fewer prosecutions than
the statute at issue here. See STEWART,
J., concurring, post, at 1210, n. 13. Justice
BRENNAN's dissent argues on the other hand, that
"even assuming that a gender neutral statute would be
more difficult to enforce, ... [c]ommon sense ... suggests that a gender neutral
statutory rape law is potentially a greater deterrent of sexual activity than
a gender based law, for the simple reason that a gender neutral law subjects
both men and women to criminal sanctions and thus arguably has a deterrent
effect on twice as many potential violators."
Post, at 1216 1217 (emphasis deleted).
Where such differing speculations as to the effect of a statute
are plausible, we think it appropriate to defer to the decision of the California
Supreme Court, "armed as it was with the knowledge of the facts and circumstances
concerning the passage and potential impact of [the statute], and familiar
with the milieu in which that provision would operate." Reitman v. Mulkey, 387 U.S. 369, 378 379,
87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967).
It should be noted that two of the three cases relied upon
by Justice BRENNAN's dissent are readily distinguishable from the instant
one. See post, at 1215, n. 3. In both Navedo v. Preisser, 630 F.2d 636 (CA8
1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied,
436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), the respective governments
asserted that the purpose of the statute was to protect young women from physical
injury. Both courts rejected the justification on the grounds that there
had been no showing that young females are more likely than males to suffer
physical injury from sexual intercourse.
They further held, contrary to our decision, that pregnancy prevention
was not a "plausible" purpose of the legislation. Thus neither court reached the issue presented
here, whether the statute is substantially related to the prevention of teenage
pregnancy. Significantly, Meloon has
been severely limited by Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), where
the court upheld a statutory rape law on the ground that the State had shown
that sexual intercourse physically injures young women more than males.
Here, of course, even Justice BRENNAN's dissent does not dispute that
young women suffer disproportionately the deleterious consequences of illegitimate
pregnancy.
*475 We
similarly reject petitioner's argument that § 261.5 is impermissibly overbroad
because it makes unlawful sexual intercourse with prepubescent females, who
are, by definition, incapable of becoming pregnant. Quite apart from the fact
that the statute could well be justified on the grounds that very young females
are particularly susceptible to physical injury from sexual intercourse, see
Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), it is ludicrous to suggest that
the Constitution requires the California Legislature to limit the scope of
its rape statute to older teenagers and exclude young girls.
There remains only
petitioner's contention that the statute is unconstitutional as it is applied
to him because he, like Sharon, was under 18 at the time of sexual intercourse.
Petitioner argues that the statute is flawed because it presumes that
as between two persons under 18, the male is the culpable aggressor.
We find petitioner's contentions unpersuasive. Contrary to his assertions,
the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by a legislature to
prevent illegitimate teenage pregnancy by providing an additional deterrent
for men. The age of the man is irrelevant
since young men are as capable as older men of inflicting the harm sought
to be prevented.
In upholding the California
statute we also recognize that this is not a case where **1208 a statute is being challenged
on the grounds that it "invidiously discriminates" against females. *476
To the contrary, the statute places a burden on males which is not
shared by females. But we find nothing to suggest that men, because
of past discrimination or peculiar disadvantages, are in need of the special
solicitude of the courts. Nor is this
a case where the gender classification is made "solely for ... administrative
convenience," as inFrontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct.
1764, 1772, 36 L.Ed.2d 583 (1973) (emphasis omitted), or rests on "the
baggage of sexual stereotypes" as in Orr v. Orr, 440 U.S., at 283, 99
S.Ct., at 1114. As we have held, the
statute instead reasonably reflects the fact that the consequences of sexual
intercourse and pregnancy fall more heavily on the female than on the male.
Accordingly, the judgment
of the California Supreme Court is
Affirmed.
Justice STEWART, concurring.
Section 261.5, on
its face, classifies on the basis of sex.
A male who engages in sexual intercourse with an underage female who
is not his wife violates the statute; a
female who engages in sexual intercourse with an underage male who is not
her husband does not. [FN1] The petitioner
contends that this state law, which punishes only males for the conduct in
question, violates his Fourteenth Amendment right to the equal protection
of the law. The Court today correctly rejects that contention.
FN1. But see n. 5 and accompanying text, infra.
A
At the outset, it
should be noted that the statutory discrimination, when viewed as part of
the wider scheme of California law, is not as clearcut as might at first appear.
Females are not freed from criminal liability in California for engaging
in sexual activity that may be harmful. It
is unlawful, for example, for any person, of either sex, to molest, annoy,
or contribute to the delinquency of anyone under 18 years of
*477 age. [FN2] All persons are prohibited from
committing "any lewd or lascivious act," including consensual intercourse,
with a child under 14. [FN3] And members
of both sexes may be convicted for engaging in deviant sexual acts with anyone
under 18. [FN4] Finally, females may
be brought within the proscription of § 261.5 itself, since a female may be
charged with aiding and abetting its violation. [FN5]
FN2. See Cal.Penal Code Ann. §§ 272, 647a (West Supp.1981).
FN3. Cal.Penal Code Ann. § 288 (West Supp.1981). See People v. Dontanville, 10 Cal.App.3d 783,
796, 89 Cal.Rptr. 172, 180 (2d Dist.).
FN4. See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West
Supp.1981).
FN5. See Cal.Penal Code Ann. § 31 (West 1970); People v. Haywood, 131 Cal.App.2d 259, 280
P.2d 180 (2d Dist.); People v. Lewis,
113 Cal.App.2d 468, 248 P.2d 461 (1st Dist.).
According to statistics maintained by the California Department of
Justice Bureau of Criminal Statistics, approximately 14% of the juveniles
arrested for participation in acts made unlawful by § 261.5 between 1975 and
1979 were females. Moreover, an underage female who is as culpable as her
male partner, or more culpable, may be prosecuted as a juvenile delinquent. Cal.Welf. & Inst.Code Ann. § 602 (West
Supp.1981); In re Gladys R., 1 Cal.3d
855, 867 869, 464 P.2d 127, 136 138, 83 Cal.Rptr. 671, 680 682.
Section 261.5 is thus
but one part of a broad statutory scheme that protects all minors from the
problems and risks attendant upon adolescent sexual activity. To be sure, § 261.5 creates an additional measure
of punishment for males who engage in sexual intercourse with females between
the ages of 14 and 17. [FN6] The question
then is whether the Constitution prohibits a state legislature from imposing
this additional sanction on a gender specific basis.
FN6. Males and females are equally prohibited by § 288 from
sexual intercourse with minors under 14.
Compare Cal.Penal Code Ann. § 288 (West Supp.1981) with Cal.Penal Code
Ann. §§ 18, 264 (West Supp.1981).
B
The Constitution is
violated when government, state or federal, invidiously classifies **1209 similarly situated people on the
basis of the immutable characteristics with which they were *478 born. Thus, detrimental
racial classifications by government always violate the Constitution, for
the simple reason that, so far as the Constitution is concerned, people of
different races are always similarly situated.
See Fullilove v. Klutznick, 448 U.S. 448, 522, 100 S.Ct. 2758, 2798,
65 L.Ed.2d 902 (dissenting opinion); McLaughlin
v. Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 13 L.Ed.2d 222 (concurring opinion);
Brown v. Board of Ed., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873;
Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 1144, 41 L.Ed.
256 (dissenting opinion). By contrast,
while detrimental gender classifications by government often violate the Constitution,
they do not always do so, for the reason that there are differences between
males and females that the Constitution necessarily recognizes.
In this case we deal with the most basic of these differences:
females can become pregnant as the result of sexual intercourse; males cannot.
As was recognized
in Parham v. Hughes, 441 U.S. 347, 354, "a State is not free to make
overbroad generalizationsbased on sex which are entirely unrelated to any
differences between men and women or which demean the ability or social status
of the affected class." Gender
based classifications may not be based upon administrative convenience, or
upon archaic assumptions about the proper roles of the sexes. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451,
50 L.Ed.2d 397; Frontiero v. Richardson,
411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30
L.Ed.2d 225. But we have recognized
that in certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification
based on clear differences between the sexes in not invidious, and a legislative
classification realistically based upon those differences is not unconstitutional.
See Parham v. Hughes, supra; Califano
v. Webster, 430 U.S. 313, 316 317, 97 S.Ct. 1192, 1194 1195, 51 L.Ed.2d
360; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct.
572, 42 L.Ed.2d 610; cf. San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 1310,
36 L.Ed.2d 16 (concurring opinion). "[G]ender
based classifications are not invariably invalid.
When men and women are not in fact similarly situated in the area covered
by the legislation in question, the Equal Protection Clause is not violated."
Caban v. Mohammed, 441 U.S. 380, 398, 99 S.Ct. 1760, 1771, 60 L.Ed.2d
297 (dissenting opinion).
*479 Applying these principles to the classification
enacted by the California Legislature, it is readily apparent that § 261.5
does not violate the Equal Protection Clause. Young women and men are not similarly situated
with respect to the problems and risk associated with intercourse and pregnancy,
and the statute is realistically related to the legitimate state purpose of
reducing those problems and risks.
C
As the California
Supreme Court's catalog shows, the pregnant unmarried female confronts problems
more numerous and more severe than any faced by her male partner. [FN7] She alone endures the medical risks of pregnancy
or abortion. [FN8] She suffers
**1210 disproportionately the social, educational, and emotional consequences
of pregnancy. [FN9] Recognizing this disproportion, *480 California has attempted to protect
teenage females by prohibiting males from participating in the act necessary
for conception. [FN10]
FN7. The court noted that from 1971 through 1976, 83.6% of
the 4,860 children born
to girls under 15 in California were illegitimate, as were 51% of those born
to girls 15 to 17. The court also
observed that while accounting for only 21% of California pregnancies in 1976,
teenagers accounted for 34.7% of legal abortions.
See ante, at 1205, n. 3.
FN8. There is also empirical evidence that sexual abuse of
young females is a more serious problem than sexual abuse of young males. For example, a review of five studies found
that 88% of sexually abused minors were female. Jaffe, Dynneson, & ten Bensel, Sexual Abuse of Children, 129
Am.J. of Diseases of Children 689, 690 (1975).
Another study, involving admissions to a hospital emergency room over
a 3 year period, reported that 86 of 100 children examined for sexual abuse
were girls. Orr & Prietto, Emergency
Management of Sexually Abused Children, 133 Am.J. of Diseased Children 630
(1979). See also State v. Craig, 169
Mont. 150, 156 157, 545 P.2d 649, 653; Sarafino, An Estimate of Nationwide Incidence
of Sexual Offenses Against Children, 58 Child Welfare, 127, 131 (1979).
FN9. Most teenage mothers do not finish high school and are
disadvantaged economically thereafter. See
Moore, Teenage Childbirth and Welfare Dependency, 10 Family Planning Perspectives
233 235 (1978). The suicide
rate for teenage mothers is seven times greater than that for teenage
girls without children. F. Nye, School Age Parenthood (Wash.State
U.Ext.Bull. No. 667) 8 (1976). And
60% of adolescent mothers aged 15 to 17 are on welfare within two to five
years of the birth of their children. Teenage
Pregnancy, Everybody's Problem 3 4 (DHEW Publication (HSA) No. 77 5619).
FN10. Despite the increased availability of contraceptives
and sex education, the pregnancy rates for young women are increasing. See Alan Guttmacher Institute, 11 Million Teenagers
12 (1976). See generally C. Chilman,
Adolescent Sexuality in a Changing American Society (NIH Pub.No.80 1426,
1980).
The petitioner contends that the statute is overinclusive
because it does not allow a defense that contraceptives were used, or that
procreation was for some other reason impossible. The petitioner does not allege, however, that he used a contraceptive,
or that pregnancy could not have resulted from the conduct with which he was
charged. But even assuming the petitioner's
standing to raise the claim of overbreadth, it is clear that a statute recognizing
the defenses he suggests would encounter difficult if not impossible problems
of proof.
The fact that males
and females are not similarly situated with respect to the risks of sexual
intercourse applies with the same force to males under 18 as it does to older
males. The risk of pregnancy is a
significant deterrent for unwed young females that is not shared by unmarried
males, regardless of their age. Experienced
observation confirms the commonsense notion that adolescent males disregard
the possibility of pregnancy far more than do adolescent females. [FN11]
And to the extent that § 261.5 may punish males for intercourse with
prepubescent females, that punishment is justifiable because of the substantial
physical risks for prepubescent females that are not shared by their male
counterparts. [FN12]
FN11. See, e. g., Phipps Yonas, Teenage Pregnancy and Motherhood,
50 Am.J. Orthopsychiatry 403, 412 (1980). See also State v. Rundlett, 391 A.2d 815, 819, n. 13, 822 (Me.);
Rundlett v. Oliver, 607 F.2d 495, 502 (CA1).
FN12. See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40; see generally Orr & Prietto, supra; Jaffee, Dynneson, & ten Bensel, supra;
Chilman, supra.
*481 D
The petitioner argues
that the California Legislature could have drafted the statute differently,
so that its purpose would be accomplished more precisely. "But the issue, of course, is not whether
the statute could have been drafted more wisely, but whether the lines chosen
by the ... [l]egislature are within constitutional limitations."
Kahn v. Shevin, 416 U.S. 351, 356, n. 10, 94 S.Ct. 1734, 1738, 40 L.Ed.2d
189. That other States may have decided to attack
the same problems more broadly, with gender neutral statutes, does not mean
that every State is constitutionally compelled to do so. [FN13]
FN13. The fact is that a gender neutral statute would not
necessarily lead to a closer fit with the aim of reducing the problems associated
with teenage pregnancy. If both parties
were equally liable to prosecution, a female would be far less likely to complain;
the very complaint would be self incriminating.
Accordingly, it is possible that a gender neutral statute would result
in fewer prosecutions than the one before us.
In any event, a state legislature is free to address itself
to what it believes to be the most serious aspect of a broader problem. "[T]he Equal Protection Clause does not
require that a State must choose between attacking every aspect of a problem
or not attacking the problem at all."
Dandridge v. Williams, 397 U.S. 471, 486 487, 90 S.Ct. 1153, 1162
1163, 25 L.Ed.2d 491; see also Williamson
v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.
E
In short, the Equal
Protection Clause does not mean that the physiological differences **1211 between men and women must be
disregarded. While those differences
must never be permitted to become a pretext for invidious discrimination,
no such discrimination is presented by this case.
The Constitution surely does not require a State to pretend that demonstrable
differences between men and women do not really exist.
Justice BLACKMUN,
concurring in the judgment.
[3] It is gratifying
that the plurality recognizes that "[a]t the risk of stating the obvious,
teenage pregnancies ... have increased dramatically over the last two decades"
and "have significant social, medical, and economic consequences for
both *482 the mother and her child, and the State."
Ante, at 1205 (footnotes omitted). There have been times when I have wondered whether the Court was
capable of this perception, particularly when it has struggled with the different
but not unrelated problems that attend abortion issues. See, for example, the opinions (and the dissenting
opinions) in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977);
Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Poelker
v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977); Harris v. McRae,
448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Williams v. Zbaraz, 448
U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831 (1980); and today's opinion in H.
L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388.
Some might conclude
that the two uses of the criminal sanction here flatly to forbid intercourse
in order to forestall teenage pregnancies, and in Matheson to prohibit a physician's
abortion procedure except upon notice to the parents of the pregnant minor
are vastly different proscriptions. But the basic social and privacy problems are
much the same. Both Utah's statute
in Matheson and California's statute in this case are legislatively created
tools intended to achieve similar ends and addressed to the same societal
concerns: the control and direction
of young people's sexual activities. The
plurality opinion impliedly concedes as much when it notes that "approximately
half of all teenage pregnancies end in abortion," and that "those
children who are born" are "likely candidates to become wards of
the State." Ante, at 1205, and
n.6.
I, however, cannot
vote to strike down the California statutory rape law, for I think it is a
sufficiently reasoned and constitutional effort to control the problem at
its inception. For me, there is an
important difference between this state action and a State's adamant and rigid
refusal to face, or even to recognize, the "significant ... consequences"
to the woman of a forced or unwanted conception.
I have found it difficult to rule constitutional, for example, state
efforts to block, at that later point, a woman's attempt to deal with the
enormity of the problem confronting her, just as I have rejected state efforts
to prevent women from rationally taking
*483 steps to prevent that problem from arising.
See, e. g., Carey v. Population Services International, 431 U.S. 678,
97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). See
also Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965). In contrast, I am persuaded
that, although a minor has substantial privacy rights in intimate affairs
connected with procreation, California's efforts to prevent teenage pregnancy
are to be viewed differently from Utah's efforts to inhibit a woman from dealing
with pregnancy once it has become an inevitability.
Craig v. Boren, 429
U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), was an opinion which, in large
part, I joined, id., at 214, 97 S.Ct., at 466.
The plurality opinion in the present case points out, ante, at 1204,
the Court's respective phrasings of the applicable test in Reed v. Reed, 404
U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), and in Craig v. Boren,
429 U.S., at 197, 97 S.Ct., at 457. I
vote to affirm the judgment of the Supreme Court of California and to uphold
the State's gender based classification on that test and as exemplified by
those two cases and by Schlesinger v. Ballard, 419 **1212 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Weinberger
v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct.
1734, 40 L.Ed.2d 189 (1974).
I note, also, that
§ 261.5 of the California Penal Code is just one of several California statutes
intended to protect the juvenile. Justice
STEWART, in his concurring opinion, appropriately observes that § 261.5 is
"but one part of a broad statutory scheme that protects all minors from
the problems and risks attendant upon adolescent sexual activity."
Ante, at 1208.
I think, too, that
it is only fair, with respect to this particular petitioner, to point out
that his partner, Sharon, appears not to have been an unwilling participant
in at least the initial stages of the intimacies that took place the night
of June 3, 1978. [FN*] Petitioner's **1213 and Sharon's nonacquaintance *484 with each other before the incident; their drinking; their withdrawal from the others of the group; their foreplay, in which she willingly participated
and seems to have encouragedsS *485 and the closeness of their ages (a
difference of only one year and 18 days) are factors that should make this
case an unattractive one to prosecute at all, and especially to pros *486 ecute as a felony, rather than as
a misdemeanor chargeable under § 261.5. But
the State has chosen to prosecute in that *487 manner, and the facts,
I reluctantly conclude, may fit the crime.
FN* Sharon at the preliminary hearing testified as follows:
"Q. [by the Deputy District Attorney]. On June the 4th, at approximately midnight
midnight of June the 3rd, were you in Rohnert Park?
"A. [by Sharon]. Yes.
"Q. Is that in Sonoma County?
"A. Yes.
"Q. Did anything unusual happen to you that night in
Rohnert Park?
"A. Yes.
"Q. Would you briefly describe what happened that night?
Did you see the defendant that night in Rohnert Park?
"A. Yes.
"Q. Where did you first meet him? "A. At a bus stop.
"Q. Was anyone with you?
"A. My sister.
"Q. Was anyone with the defendant?
"A. Yes.
"Q. How many people were with the defendant?
"A. Two.
"Q. Now, after you met the defendant, what happened?
"A. We walked down to the railroad tracks.
"Q. What happened at the railroad tracks?
"A. We were drinking at the railroad tracks and we walked
over to this bush and he started kissing me and stuff, and I was kissing him
back, too, at first. Then, I was telling
him to stop
"Q. Yes.
"A. and i was teLling him to slow down and stop.
he said, 'okay, okay.' But then he just kept doing it.
He just kept doing it and then my sister and two other guys came over
to where we were and my sister said told me to get up and come home. And then I didn't
"Q. Yes.
"A. and then my sister and "Q. All right.
"A. David, one of the boys that were there, started
walking home and we stayed there and then later
"Q. All right.
"A. Bruce left Michael, you know.
"The Court: Michael
being the defendant?
"The Witness: Yeah.
We was lying there and we were kissing each other, and then he asked
me if I wanted to walk him over to the park;
so we walked over to the park and we sat down on a bench and then he
started kissing me again and we were laying on the bench.
And he told me to take my pants off.
"I said, 'No,' and I was trying to get up and he hit
me back down on the bench and then I just said to myself, 'Forget it,' and
I let him do what he wanted to do and he took my pants off and he was telling
me to put my legs around him and stuff
* * *
"Q. Did you have sexual intercourse with the defendant?
"A. Yeah.
"Q. He did put his penis into your vagina?
"A. Yes. "Q.
You said that he hit you?
"Q. Yeah.
"Q. How did he hit you?
"A. He slugged me in the face.
"Q. With what did he slug you?
"A. His fist.
"Q. Where abouts in the face?
"A. On my chin.
"Q. As a result of that, did you have any bruises or
any kind of an injury?
"A. Yeah.
"Q. What happened?
"A. I had bruises.
"The Court: Did
he hit you one time or did he hit you more than once?
"The Witness: He
hit me about two or three times.
* * *
"Q. Now, during the course of that evening, did the defendant
ask you your age?
"A. Yeah.
"Q. And what did you tell him?
"A. Sixteen. "Q.
Did you tell him you were sixteen?
"A. Yes.
"Q. Now, you said you had been drinking, is that correct?
"A. Yes.
"Q. Would you describe your condition as a result of
the drinking?
"A. I was a little drunk." App. 20 23.
CROSS EXAMINATION
"Q. Did you go off with Mr. M. away from the others?
"A. Yeah.
"Q. Why did you do that?
"A. I don't know. I
guess I wanted to.
"Q. Did you have any need to go to the bathroom when
you were there.
"A. Yes.
"Q. And what did you do?
"A. Me and my sister walked down the railroad tracks
to some bushes and went to the bathroom.
"Q. Now, you and Mr. M., as I understand it, went off
into the bushes, is that correct?
"A. Yes.
"Q. Okay. And
what did you do when you and Mr. M. were there in the bushes?
"A. We were kissing and hugging.
"Q. Were you sitting up?
"A. We were laying down.
"Q. You were lying down. This was in the bushes?
"A. Yes.
"Q. How far away from the rest of them were you?
"A. They were just bushes right next to the railroad
tracks. We just walked off into the
bushes; not very far.
* * *
"Q. So your sister and the other two boys came over to
where you were, you and Michael were, is that right?
"A. Yeah.
"Q. What did they say to you, if you remember?
"A. My sister didn't say anything. She said, 'Come on, Sharon, let's go home.'
"Q. She asked you to go home with her?
"A. (Affirmative nod.)
"Q. Did you go home with her?
"A. No. "Q.
You wanted to stay with Mr. M.?
"A. I don't know.
"Q. Was this before or after he hit you?
"A. Before.
* * *
"Q. What happened in the five minutes that Bruce stayed
there with you and Michael?
"A. I don't remember.
"Q. You don't remember at all?
"A. (Negative head shake.)
"Q. Did you have occasion at that time to kiss Bruce?
"A. Yeah.
"Q. You did? You
were kissing Bruce at that time?
"A. (Affirmative nod.)
"Q. Was Bruce kissing you?
"A. Yes.
"Q. And were you standing up at this time?
"A. No, we were sitting down.
* * *
"Q. Okay. So
at this point in time you had left Mr. M. and you were hugging and kissing with Bruce, is that right?
"A. Yeah.
"Q. And you were sitting up.
"A. Yes.
"Q. Was your sister still there then?
"A. No. Yeah,
she was at first.
"Q. What was she doing?
"A. She was standing up with Michael and David.
"Q. Yes. Was
she doing anything with Michael and David?
"A. No, I don't think so.
"Q. Whose idea was it for you and Bruce to kiss? Did you initiate that?
"A. Yes.
"Q. What happened after Bruce left?
"A. Michael asked me if I wanted to go walk to the park.
"Q. And what did you say?
"A. I said, 'Yes.'
"Q. And then what happened?
"A. We walked to the park.
* * *
"Q. How long did it take you to get to the park? "A. About ten or fifteen minutes.
"Q. And did you walk there?
"A. Yes.
"Q. Did Mr. M. ever mention his name?
"A. Yes." Id.,
at 27 32.
*488 Justice BRENNAN, with whom Justices WHITE and
MARSHALL join, dissenting.
I
It is disturbing to
find the Court so splintered on a case that presents such a straightforward
issue: Whether the admittedly gender
based classification in Cal.Penal Code Ann. § 261.5 (West Supp.1981) **1214 bears a sufficient relationship
to the State's asserted goal of preventing teenage pregnancies to survive
the "mid level" constitutional scrutiny mandated by Craig v. Boren,
429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). [FN1] Applying the analytical framework provided
by our precedents, I am convinced that there is only one proper resolution
of this issue: the classification
must be declared unconstitutional. I
fear that the plurality opinion and Justices STEWART and BLACKMUN reach the
opposite result by placing too much emphasis on the desirability of achieving
the State's asserted statutory goal prevention of teenage pregnancy and
not enough emphasis on the fundamental question of whether the sex based
discrimination *489 in the California
statute is substantially related to the achievement of that goal. [FN2]
FN1. The California Supreme Court acknowledged, and indeed
the parties do not dispute, that Cal.Penal Code Ann. § 261.5 (West Supp.1981)
discriminates on the basis of sex. Ante,
at 1203. Because petitioner is male,
he faces criminal felony charges and a possible prison term while his female
partner remains immune from prosecution. The gender of the participants, not their relative
responsibility, determines which of them is subject to criminal sanctions
under § 261.5.
As the California Supreme Court stated in People v. Hernandez,
61 Cal.2d 529, 531, 39 Cal.Rptr. 361, 362, 393 P.2d 673, 674 (1964) (footnote
omitted):
"[E]ven in circumstances where a girl's actual comprehension
contradicts the law's presumption [that a minor female is too innocent and
naive to understand the implications and nature of her act], the male is deemed
criminally responsible for the act, although himself young and naive and responding
to advances which may have been made to him."
FN2. None of the three opinions upholding the California statute
fairly applies the equal protection analysis this Court has so carefully developed
since Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
The plurality opinion, for example, focusing on the obvious and uncontested
fact that only females can become pregnant, suggests that the statutory gender
discrimination, rather than being invidious, actually ensures equality of
treatment. Since only females are subject to a risk of
pregnancy, the plurality opinion concludes that "[a] criminal sanction
imposed solely on males ... serves to roughly 'equalize' the deterrents on
the sexes." Ante, at 1206. Justice STEWART adopts a similar approach.
Recognizing that "females can become pregnant as the result of sexual
intercourse; males cannot," Justice
STEWART concludes that "[y]oung women and men are not similarly situated
with respect to the problems and risks associated with intercourse and pregnancy,"
and therefore § 261.5 "is realistically related to the legitimate state
purpose of reducing those problems and risks" (emphasis added).
Ante, at 1209. Justice BLACKMUN, conceding that some limits
must be placed on a State's power to regulate "the control and direction
of young people's sexual activities," also finds the statute constitutional. Ante, at 1211. He distinguishes the State's
power in the abortion context, where the pregnancy has already occurred, from
its power in the present context, where the "problem [is] at its inception."
He then concludes, without explanation, that "the California statutory
rape law ... is a sufficiently reasoned and constitutional effort to control
the problem at its inception." Ibid.
All three of these approaches have a common failing. They overlook the fact that the State has not
met is burden of proving that the gender discrimination in § 261.5 is substantially
related to the achievement of the State's asserted statutory goal.
My Brethren seem not to recognize that California has the burden of
proving that a gender neutral statutory rape law would be less effective
than § 261.5 in deterring sexual activity leading to teenage pregnancy.
Because they fail to analyze the issue in these terms, I believe they
reach an unsupportable result.
II
After some uncertainty
as to the proper framework for analyzing equal protection challenges to statutes
containing gender based classifications, see ante, at 1204, this Court settled
upon the proposition that a statute containing a gender based classification
cannot withstand constitutional challenge unless
*490 the classification is substantially related
to the achievement of an important governmental objective. Kirchberg v. Feenstra, 450 U.S. 455, 459, 101
S.Ct. 1195, 1198, 67 L.Ed.2d 428; Wengler
v. Druggists Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64
L.Ed.2d 107 (1980); Califano v. Westcott,
443 U.S. 76, 85, 99 S.Ct. 2655, 2661, 61 L.Ed.2d 382 (1979); Caban v. Mohammed, 441 U.S. 380, 388, 99 S.Ct.
1760, 1766, 60 L.Ed.2d 297 (1979); Orr
v. Orr, 440 U.S. 268, 279, 99 **1215
S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 210 211, 97 S.Ct. 1021, 1028
1029, 51 L.Ed.2d 270 (1977); Califano v. Webster, 430 U.S. 313, 316 317,
97 S.Ct. 1192, 1194 1195, 51 L.Ed.2d 360 (1977); Craig v. Boren, supra, at 197, 97 S.Ct., at
457. This analysis applies whether
the classification discriminates against males or against females. Caban v. Mohammed, supra, at 394, 99 S.Ct.,
at 1769; Orr v. Orr, supra, at 278 279, 99 S.Ct., at 1111; Craig v. Boren, supra, at 204, 97 S.Ct., at
460. The burden is on the government
to prove both the importance of its asserted objective and the substantial
relationship between the classification and that objective. See Kirchberg v. Feenstra, 450 U.S., at 461,
101 S.Ct., at 1199; Wengler v. Druggists
Mutual Ins. Co., supra, at 151 152, 100 S.Ct., at 1546; Caban v. Mohammed, supra, at 393, 99 S.Ct.,
at 1768; Craig v. Boren, supra, at
204, 97 S.Ct., at 460. And the State
cannot meet that burden without showing that a gender neutral statute would
be a less effective means of achieving that goal.
Wengler v. Druggists Mutual Ins. Co., supra, at 151 152, 100 S.Ct.,
at 1546 1547; Orr v. Orr, supra,
at 281, 283, 99 S.Ct., at 1112, 1113. [FN3]
FN3. Gender based statutory rape laws were struck down in
Navedo v. Preisser, 630 F.2d 636 (CA8 1980), United States v. Hicks, 625 F.2d
216 (CA9 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied,
436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), precisely because the
government failed to meet this burden of proof.
The State of California
vigorously asserts that the "important governmental objective" to
be served by § 261.5 is the prevention of teenage pregnancy. It claims that
its statute furthers this goal by deterring sexual activity by males the
class of persons it considers more responsible for causing those pregnancies.
[FN4] But even assuming that prevention
of teenage *491 pregnancy is an
important governmental objective and that it is in fact an objective of §
261.5, see infra, at 1217 1218, California still has the burden of proving
that there are fewer teenage pregnancies under its gender based statutory
rape law than there would be if the law were gender neutral. To meet this
burden, the State must show that because its statutory rape law punishes only
males, and not females, it more effectively deters minor females from having
sexual intercourse. [FN5]
FN4. In a remarkable display of sexual stereotyping, the California
Supreme Court stated:
"The Legislature is well within its power in imposing
criminal sanctions against males, alone, because they are the only persons
who may physiologically cause the result which the law properly seeks to avoid."
25 Cal.3d 608, 612, 159 Cal.Rptr. 340, 343, 601 P.2d 572, 575 (1979) (emphasis
in original).
FN5. Petitioner has not questioned the State's constitutional
power to achieve its asserted objective by criminalizing consensual sexual
activity. However, I note that our
cases would not foreclose such a privacy challenge.
The State is attempting to reduce the incidence of teenage
pregnancy by imposing criminal sanctions on those who engage in consensual
sexual activity with minor females. We
have stressed, however, that
"[i]f the right of privacy means anything, it is the
right of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child."
Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d
349 (1972) (footnote omitted).
Minors, too, enjoy a right of privacy in connection with decisions
affecting procreation. Carey v. Population
Services International, 431 U.S. 678, 693, 97 S.Ct. 2010, 2020, 52 L.Ed.2d
675 (1977). Thus, despite the suggestion
of the plurality to the contrary, ante, at 1206, n. 8, it is not settled that
a State may rely on a pregnancy prevention justification to make consensual
sexual intercourse among minors a criminal act.
The plurality assumes
that a gender neutral statute would be less effective than § 261.5 in deterring
sexual activity because a gender neutral statute would create significant
enforcement problems. The plurality
thus accepts the State's assertion that
"a female is
surely less likely to report violations of the statute if she herself would
be subject to criminal prosecution. *492 In an area already fraught with prosecutorial
**1216 difficulties, we decline to hold that the Equal Protection Clause
requires a legislature to enact a statute so broad that it may well be incapable
of enforcement." Ante, at 1206
1207 (footnotes omitted).
However, a State's bare assertion that its gender based statutory
classification substantially furthers an important governmental interest is
not enough to meet its burden of proof under Craig v. Boren. Rather, the State must produce evidence that
will persuade the court that its assertion is true. See Craig v. Boren, 429
U.S., at 200 204, 97 S.Ct., at 458 460.
The State has not produced such evidence in this case. Moreover, there are at least two serious flaws
in the State's assertion that law enforcement problems created by a gender
neutral statutory rape law would make such a statute less effective than
a gender based statute in deterring sexual activity.
First, the experience of other jurisdictions, and California itself,
belies the plurality's conclusion that a gender neutral statutory rape law
"may well be incapable of enforcement." There are now at least 37 States that have
enacted gender neutral statutory rape laws. Although most of these laws protect young persons (of either sex)
from the sexual exploitation of older individuals, the laws of Arizona, Florida,
and Illinois permit prosecution of both minor females and minor males for
engaging in mutual sexual conduct. [FN6]
California has introduced no evidence that those States have been handi *493 capped by the enforcement problems
the plurality finds so persuasive. [FN7] Surely, if those States could provide such evidence, we might expect
that California would have introduced it.
FN6. See Ariz.Rev.Stat.Ann.
§ 13 1405 (1978); Fla.Stat. § 794.05
(1979); Ill.Rev.Stat., ch. 38, ¶ 11
5 (1979). In addition, eight other
States permit both parties to be prosecuted when one of the participants to
a consensual act of sexual intercourse is under the age of 16. See Kan.Stat.Ann. § 21 3503 (1974);
Mass.Gen.Laws Ann., ch. 265, § 23 (West Supp.1981);
Mich.Comp.Laws § 750.13 (1970); Mont.Code
Ann. §§ 45 5 501 to 45 5 503 (1979);
N.H.Rev.Stat. § 632 A:3 (Supp.1979); Tenn.Code Ann. § 39 3705(4)
(Supp.1979); Utah Code Ann. § 76 5
401 (Supp.1979); Vt.Stat.Ann., Tit.
13, § 3252(3) (Supp.1980).
FN7. There is a logical
reason for this. In contrast to laws
governing forcible rape, statutory rape laws apply to consensual sexual activity.
Force is not an element of the crime. Since a woman who consents to an act of sexual intercourse is unlikely
to report her partner to the police whether or not she is subject to criminal
sanctions enforcement would not be undermined if the statute were to be
made gender neutral. See n. 8, infra.
In addition, the California Legislature in recent years has revised
other sections of the Penal Code to make them gender neutral. For example, Cal.Penal Code Ann. §§ 286(b)(1)
and 288a(b)(1) (West Supp.1981), prohibiting sodomy and oral copulation with
a "person who is under 18 years of age," could cause two minor homosexuals
to be subjected to criminal sanctions for engaging in mutually consensual
conduct. Again, the State has introduced
no evidence to explain why a gender neutral statutory rape law would be any
more difficult to enforce than those statutes.
The second flaw in the State's assertion is that even assuming that
a gender neutral statute would be more difficult to enforce, the State has
still not shown that those enforcement problems would make such a statute
less effective than a gender based statute in deterring minor females from
engaging in sexual intercourse. [FN8] Common
sense, however, suggests *494
that a gender neutral statutory rape law is potentially a
**1217 greater deterrent of sexual activity than a gender based law,
for the simple reason that a gender neutral law subjects both men and women
to criminal sanctions and thus arguably has a deterrent effect on twice as
many potential violators. Even if
fewer persons were prosecuted under the gender neutral law, as the State
suggests, it would still be true that twice as many persons would be subject
to arrest. The State's failure to
prove that a gender neutral law would be a less effective deterrent than
a gender based law, like the State's failure to prove that a gender neutral
law would be difficult to enforce, should have led this Court to invalidate
§ 261.5.
FN8.
As it is, § 261.5 seems to be an ineffective deterrent of sexual activity. Cf. Carey v. Population Services International,
supra, at 695, 97 S.Ct., at 2021 (substantial reason to doubt that limiting
access to contraceptives will substantially discourage early sexual behavior).
According to statistics provided by the State, an average of only 61 juvenile
males and 352 adult males were arrested for statutory rape each year between
1975 and 1978. Brief for Respondent
19. During each of those years there
were approximately one million Californian girls between the ages of 13 17.
Cal. Dept. of Finance, Population Projections for California Counties,
1975 2020, with Age/Sex Detail to 2000, Series E 150 (1977).
Although the record in this case does not indicate the incidence of
sexual intercourse involving those girls during that period, the California
State Department of Health estimates that there were almost 50,000 pregnancies
among 13 to 17 year old girls during 1976. Cal. Dept. of Health, Birth and Abortion Records,
and Physician Survey of Office Abortions (1976). I think it is fair to speculate from this evidence
that a comparison of the number
of arrests for statutory rape in California with the number of acts of sexual
intercourse involving minor females in that State would likely demonstrate
to a male contemplating sexual activity with a minor female that his chances
of being arrested are reassuringly low. I seriously question, therefore, whether § 261.5 as enforced has
a substantial deterrent effect. See
Craig v. Boren, 429 U.S., at 214, 97 S.Ct., at 465 (STEVENS, J., concurring).
III
Until very recently, no California court or
commentator had suggested that the purpose of California's statutory rape
law was to protect young women from the risk of pregnancy. Indeed, the historical development of § 261.5
demonstrates that the law was initially enacted on the premise that young
women, in contrast to young men, were to be deemed legally incapable of consenting
to an act of sexual intercourse. [FN9] Because *495 their chastity
was considered particularly precious, those young women were felt to be uniquely
in need of the State's protection. [FN10] In contrast, young men were
**1218 assumed to *496 be capable of making such decisions for
themselves; the law therefore did
not offer them any special protection.
FN9. California's statutory rape law had its origins in the
Statutes of Westminster enacted during the reign of Edward I at the close
of the 13th century (3 Edw. 1, ch. 13 (1275);
13 Edw. 1, ch. 34 (1285)). The
age of consent at that time was 12 years, reduced to 10 years in 1576 (18
Eliz. 1, ch. 7, § 4). This statute
was part of the common law brought to the United States. Thus, when the first California penal statute was enacted, it contained
a provision (1850 Cal.Stats., ch. 99, § 47, p. 234) that proscribed sexual
intercourse with females under the age of 10. In 1889, the California statute was amended to make the age of consent
14 (1889 Cal.Stats., ch. 191, § 1, p. 223). In 1897, the age was advanced to 16 (1897 Cal.Stats., ch. 139, §
1, p. 201). In 1913 it was fixed at
18, where it now remains (1913 Cal.Stats., ch. 122, § 1, p. 212).
Because females generally have not reached puberty by the
age of 10, it is inconceivable that a statute designed to prevent pregnancy
would be directed at acts of sexual intercourse with females under that age.
The only legislative history available, the draftsmen's notes
to the Penal Code of 1872, supports the view that the purpose of California's
statutory rape law was to protect those who were too young to give consent.
The draftsmen explained that the "[statutory rape] provision embodies
the well settled rule of the existing law;
that a girl under ten years of age is
incapable of giving any consent to an act of intercourse which can
reduce it below the grade of rape."
Code Commissioners' note, subd. 1, following Cal.Penal Code, p. 111
(1st ed. 1872). There was no mention whatever of pregnancy
prevention. See also Note, Forcible
and Statutory Rape: An Exploration of the Operation and Objectives of the
Consent Standard, 62 Yale L.J. 55, 74 76 (1952).
FN10. Past decisions of the California courts confirm that
the law was designed to protect the State's young females from their own uninformed
decisionmaking. In People v. Verdegreen,
106 Cal. 211, 214 215, 39 P. 607, 608 609 (1895), for example, the California
Supreme Court stated:
"The obvious purpose of [the statutory rape law] is the
protection of society by protecting from violation the virtue of young and
unsophisticated girls.... It is the
insidious approach and vile tampering with their persons that primarily undermines
the virtue of young girls, and eventually destroys it; and the prevention of this, as much as the
principal act, must undoubtedly have been the intent of the legislature."
As recently as 1964, the California Supreme Court decided
People v. Hernandez, 61 Cal.2d, at 531, 39 Cal.Rptr., at 362, 393 P.2d, at
674, in which it stated that the under age female "is presumed too innocent and naive to understand the implications
and nature of her act.... The law's
concern with her capacity or lack thereof to so understand is explained in
part by a popular conception of the social, moral and personal values which
are preserved by the abstinence from sexual indulgence on the part of a young
woman. An unwise disposition of her
sexual favor is deemed to do harm both to herself and the social mores by
which the community's conduct patterns are established. Hence the law of statutory rape intervenes
in an effort to avoid such a disposition."
It was only in deciding Michael M. that the California Supreme
Court decided for the first time in the 130 year history of the statute,
that pregnancy prevention had become one of the purposes of the statute.
It is perhaps because
the gender classification in California's statutory rape law was initially
designed to further these outmoded sexual stereotypes, rather than to reduce
the incidence of teenage pregnancies, that the State has been unable to demonstrate
a substantial relationship between the classification and its newly asserted
goal. Cf. Califano v. Goldfarb, 430
U.S., at 223, 97 S.Ct., at 1035. (STEVENS,
J., concurring in judgment). But whatever
the reason, the State has not shown that Cal.Penal Code § 261.5 is any more
effective than a gender neutral law would be in determining minor females
from engaging in sexual intercourse. It has therefore not met its burden of proving
that the statutory classification is substantially related to the achievement
of its asserted goal.
I would hold that
§ 261.5 violates the Equal Protection Clause of the Fourteenth Amendment,
and I would reverse the judgment of the California Supreme Court.
Justice STEVENS, dissenting.
Local custom and belief
rather than statutory laws of venerable but doubtful ancestry will determine
the volume of sexual activity among unmarried teenagers. [FN1]
The empirical *497 evidence
cited by the plurality demonstrates the futility of the notion that a statutory
prohibition will significantly affect the volume of that activity or provide
a meaningful solution to the problems created by it. [FN2]
Nevertheless, as a matter of constitutional power, unlike my Brother
BRENNAN see ante, at 1215 n. 5, I would have no doubt about the validity of
a state law prohibiting all unmarried teenagers from engaging in sexual intercourse.
The societal interests in reducing the incidence of venereal disease
and teenage pregnancy are sufficient, in my judgment, to justify a prohibition
of conduct that increases the risk of those harms. [FN3]
FN1. "Common sense indicates that many young people will
engage in sexual activity regardless of what the New York Legislature does;
and further, that the incidence of venereal disease and premarital
pregnancy is affected by the availability or unavailability of contraceptives.
Although young persons theoretically may avoid those harms by practicing
total abstention, inevitably many will not." Carey v. Population Services International, 431 U.S. 678, 714, 97
S.Ct. 2010, 2031, 52 L.Ed.2d 675 (STEVENS, J., concurring in part and in judgment).
FN2. If a million teenagers became pregnant in 1976, see ante,
at 1205, n. 3, there must be countless violations of the California statute.
The statistics cited by Justice BRENNAN also indicate, as he correctly
observes, that the statute "seems to be an ineffective deterrent of sexual
activity." See ante, at 1216 1217, n. 8.
FN3. See Carey v. Population Services International, supra,
at 713, 97 S.Ct., at 2030 (STEVENS, J., concurring in part and in judgment).
My conclusion that
a nondiscriminatory prohibition would be constitutional does not help me answer
the question whether a prohibition applicable to only half of the joint participants
in the risk creating conduct is also valid. It cannot be true that the validity of a total
ban is an adequate justification for a selective prohibition; otherwise, the constitutional objection to
discriminatory rules would be meaningless.
The question in this case is whether the difference between males and
females justifies this statutory discrimination based entirely on sex. [FN4]
FN4. Equal protection analysis is often said to involve different
"levels of scrutiny." It
may be more accurate to say that the burden of sustaining an equal protection
challenge is much heavier in some cases than in others. Racial classifications, which are subjected
to "strict scrutiny," are presumptively invalid because there is
seldom, if ever, any legitimate reason for treating citizens differently because
of their race. On the other hand,
most economic classifications are presumptively valid because they are a necessary
component of most regulatory programs. In
cases involving discrimination between men and women, the natural differences
between the sexes are sometimes relevant and sometimes wholly irrelevant.
If those differences are obviously irrelevant, the discrimination should be
treated as presumptively unlawful in the same way that racial classifications are presumptively unlawful.
Cf. Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51
L.Ed.2d 270 (STEVENS, J., concurring in judgment).
But if, as in this case, there is an apparent connection between the
discrimination and the fact that only women can become pregnant, it may be
appropriate to presume that the classification is lawful.
This presumption, however, may be overcome by a demonstration that
the apparent justification for the discrimination is illusory or wholly inadequate. Thus, instead of applying a "mid level"
form of scrutiny in all sex discrimination cases, perhaps the burden is heavier
in some than in others. Nevertheless,
as I have previously suggested, the ultimate standard in these, as in all
other equal protection cases, is essentially the same. See Craig v. Boren, 429 U.S. 190, 211 212, 97 S.Ct. 451, 464 465,
50 L.Ed.2d 397 (STEVENS, J., concurring). Professor Cox recently noted that however the
level of scrutiny is described, in the final analysis, "the Court is
always deciding whether in its judgment the harm done to the disadvantaged
class by the legislative classification is disproportionate to the public
purposes the measure is likely to achieve." Cox, Book Review, 94 Harv.L.Rev.
700, 706 (1981).
*498 **1219
The fact that the Court did not immediately acknowledge that the capacity
to become pregnant is what primarily differentiates the female from the male
[FN5] does not impeach the validity of the plurality's newly found wisdom. I think the plurality is quite correct in making the assumption
that the joint act that this law seeks to prohibit creates a greater risk
of harm for the female than for the male.
But the plurality surely cannot believe that the risk of pregnancy
confronted by the female any more than the risk of venereal disease confronted
by males as well as females has provided an effective deterrent to voluntary
female participation in the risk creating conduct.
Yet the plurality's decision seems to rest on the assumption that the
California Legislature acted on the basis of that rather fanciful notion.
FN5. See General Electric Co. v. Gilbert, 429 U.S. 125, 162,
97 S.Ct. 401, 421, 50 L.Ed.2d 343 (STEVENS, J., dissenting).
*499 In my judgment, the fact that a class of persons
is especially vulnerable to a risk that a statute is designed to avoid is
a reason for making the statute applicable to that class. The argument that a special need for protection
provides a rational explanation for an exemption is one I simply do not comprehend.
[FN6]
FN6. A hypothetical racial classification will illustrate
my point. Assume that skin pigmentation provides some measure of protection
against cancer caused by exposure to certain chemicals in the atmosphere and,
therefore, that white employees confront a greater risk than black employees
in certain industrial settings. Would
it be rational to require black employees to wear protective clothing but
to exempt whites from that requirement? It
seems to me that the greater risk of harm to white workers would be a reason
for including them in the requirement not for granting them an exemption.
In this case, the
fact that a female confronts a greater risk of harm than a male is a reason
for applying the prohibition to her not a reason for granting her a license
to use her own judgment on whether or not to assume the risk. Surely, if we
examine the problem from the point of view of society's interest in preventing
the risk creating conduct from occurring at all, it is irrational to exempt
50% of the potential violators. See dissent of Justice BRENNAN, ante, at 1216 1217. And, if we view the government's interest as
that of a parens patriae seeking to protect its subjects from harming themselves,
the discrimination is actually perverse. Would a rational parent making rules for the conduct of twin children
of opposite sex simultaneously forbid the son and authorize the daughter to
engage in conduct that is especially harmful to the daughter? That is the effect of this statutory classification.
If pregnancy or some
other special harm is suffered by one of the two participants in **1220 the prohibited act, that special
harm no doubt would constitute a legitimate mitigating factor in deciding
what, if any, punishment might be appropriate in a given case. But from the standpoint of fashioning a general
preventive rule or, indeed, in determining appropriate punishment when
neither party in fact has suffered any special *500 harm I regard a total exemption for the members of the more
endangered class as utterly irrational.
In my opinion, the
only acceptable justification for a general rule requiring disparate treatment
of the two participants in a joint act must be a legislative judgment that
one is more guilty than the other. The
risk creating conduct that this statute is designed to prevent requires the
participation of two persons one male and one female. [FN7] In many situations it is probably true that
one is the aggressor and the other is either an unwilling, or at least a less
willing, participant in the joint act. If
a statute authorized punishment of only one participant and required the prosecutor
to prove that that participant had been the aggressor, I assume that the discrimination
would be valid. Although the question
is less clear, I also assume, for the purpose of deciding this case, that
it would be permissible to punish only the male participant, if one element
of the offense were proof that he had been the aggressor, or at least in some
respects the more responsible participant in the joint act.
The statute at issue in this case, however, requires no such proof.
The question raised by this statute is whether the State, consistently
with the Federal Constitution, may always punish the male and never the female
when they are equally responsible or when the female is the more responsible
of the two.
FN7. In light of this indisputable biological fact, I find
somewhat puzzling the California Supreme Court's conclusion, quoted by the
plurality, ante, at 1203, that males "are the only persons who may physiologically
cause the result which the law properly seeks to avoid." 25 Cal.3d 608,
612, 159 Cal.Rptr. 340, 343, 601 P.2d 572, 575 (1979) (emphasis in original).
Presumably, the California Supreme Court was referring to the equally
indisputable biological fact that only females may become pregnant.
However, if pregnancy results from sexual intercourse between two willing
participants and the California statute is directed at such conduct I
would find it difficult to conclude that the pregnancy was "caused"
solely by the male participant.
It would seem to me
that an impartial lawmaker could give only one answer to that question. The fact that the California Legislature has
decided to apply its prohibition only to
*501 the male may reflect a legislative
judgment that in the typical case the male is actually the more guilty party.
Any such judgment must, in turn, assume that the decision to engage
in the risk creating conduct is always or at least typically a male
decision. If that assumption is valid, the statutory
classification should also be valid. But
what is the support for the assumption? It is not contained in the record of this case or in any legislative
history or scholarly study that has been called to our attention.
I think it is supported to some extent by traditional attitudes toward
male female relationships. But the
possibility that such a habitual attitude may reflect nothing more than an
irrational prejudice makes it an insufficient justification for discriminatory
treatment that is otherwise blatantly unfair.
For, as I read this statute, it requires that one, and only one, of
two equally guilty wrongdoers be stigmatized by a criminal conviction.
I cannot accept the
State's argument that the constitutionality of the discriminatory rule can
be saved by an assumption that prosecutors will commonly invoke this statute
only in cases that actually involve a forcible rape, but one that cannot be
established by proof beyond a reasonable doubt. [FN8] **1221 That assumption implies
that a State has a legitimate interest in convicting a defendant on evidence
that is constitutionally insufficient. Of
course, the State may create a lesser included offense that would authorize
punishment of the more guilty party, but surely the interest in obtaining
convictions on inadequate *502
proof cannot justify a statute that punishes one who is equally or less guilty
than his partner. [FN9]
FN8. According to the State of California:
"The statute is commonly employed in situations involving
force, prostitution, pornography or coercion due to status relationships,
and the state's interest in these situations is apparent."
Brief for Respondent 3. See
also id., at 23 25. The State's interest in these situations is
indeed apparent and certainly sufficient to justify statutory prohibition
of forcible rape, prostitution, pornography, and nonforcible, but nonetheless
coerced, sexual intercourse. However,
it is not at all apparent to me how this state interest can justify a statute
not specifically directed to any of these offenses.
FN9. Both Justice REHNQUIST and Justice BLACKMUN apparently
attach significance to the testimony at the preliminary hearing indicating
that the petitioner struck his partner. See
opinion of REHNQUIST, J., ante,
at 1203; opinion of BLACKMUN, J.,
ante, at 1212 1213, n. In light of
the fact that the petitioner would be equally guilty of the crime charged
in the complaint whether or not that testimony is true, it obviously has no
bearing on the legal question presented by this case.
The question is not whether "the facts ... fit the crime,"
opinion of BLACKMUN, J., ante, at 1213 that is a question to be answered at
trial but rather, whether the statute defining the crime fits the constitutional
requirement that justice be administered in an evenhanded fashion.
Nor do I find at all
persuasive the suggestion that this discrimination is adequately justified
by the desire to encourage females to inform against their male partners. Even if the concept of a wholesale informant's
exemption were an acceptable enforcement device, what is the justification
for defining the exempt class entirely by reference to sex rather than by
reference to a more neutral criterion such as relative innocence? Indeed, if the exempt class is to be composed
entirely of members of one sex, what is there to support the view that the
statutory purpose will be better served by granting the informing license
to females rather than to males? If
a discarded male partner informs on a promiscuous female, a timely threat
of prosecution might well prevent the precise harm the statute is intended
to minimize.
Finally, even if my
logic is faulty and there actually is some speculative basis for treating
equally guilty males and females differently, I still believe that any such
speculative justification would be outweighed by the paramount interest in
evenhanded enforcement of the law. A
rule that authorizes punishment of only one of two equally guilty wrongdoers
violates the essence of the constitutional requirement that the sovereign
must govern impartially.
I respectfully dissent.