|Michael M. v. Superior Court
25 Cal.3d 608, 601 P.2d 572, affirmed.
[ Rehnquist ]
[ Stewart ]
[ Blackmun ]
[ Brennan ]
[ Stevens ]
Michael M. v. Superior Court
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
JUSTICE BLACKMUN, concurring in the judgment.
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 [p482] the mother and.her child, and the State." Ante at 470 (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 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519 (1977); Harris v. McRae, 448 U.S. 297 (1980); Williams v. Zbaraz, 448 U.S. 358 (1980); and today's opinion in H.L. v. Matheson, ante p. 389.
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 471, 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 [p483] steps to prevent that problem from arising. See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977). See also Griswold v. Connecticut, 381 U.S. 479 (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 (1976), was an opinion which, in large part, I joined, id. at 214. The plurality opinion in the present case points out, ante at 468-469, the Court's respective phrasings of the applicable test in Reed v. Reed, 404 U.S. 71, 76 (1971), and in Craig v. Boren, 429 U.S. at 197. 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 U.S. 498 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); and Kahn v. Shevin, 416 U.S. 351 (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 477.
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. [*] Petitioner's and Sharon's nonacquaintance [p484] 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 encouraged; [p485] 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 prosecute [p486] as a felony, rather than as a misdemeanor chargeable under § 261.5. But the State has chosen to prosecute in that [p487] manner, and the facts, I reluctantly conclude, may fit the crime. [p488]
* 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?
Q. Did anything unusual happen to you that night in Rohnert Park?
Q. Would you briefly describe what happened that night? Did you see the defendant that night in Rohnert Park?
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?
Q. How many people were with the defendant?
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 --
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 --
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 laying 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?
Q. He did put his penis into your vagina?
Q. You said that he hit you?
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?
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?
Q. And what did you tell him?
Q. Did you tell him you were sixteen?
Q. Now, you said you had been drinking, is that correct?
Q. Would you describe your condition as a result of the drinking?
A. I was a little drunk.
Q. Did you go off with Mr. M. away from the others?
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.
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?
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?
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?
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?
Q. You wanted to stay with Mr. M.?
A. I don't know.
Q. Was this before or after he hit you?
* * * *
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?
Q, You did? You were kissing Bruce at that time?
A. (Affirmative nod.)
Q. Was Bruce kissing you?
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?
Q. And you were sitting up.
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?
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?
Q. Did Mr. M. ever mention his name?