|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 BRENNAN, with whom JUSTICES WHITE and MARSHALL join, dissenting.
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) 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 (1976). [n1] 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 [p489] in the California statute is substantially related to the achievement of that goal. [n2]
After some uncertainty as to the proper framework for analyzing equal protection challenges to statutes containing gender-based classifications, see ante at 468, this Court settled upon the proposition that a statute containin a gender-based classification cannot withstand constitutional challenge unless [p490] the classification is substantially related to the achievement of an important governmental objective. Kirchberg v. Feenstra, ante at 459; Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980); Califano v. Westcott, 443 U.S. 76, 85 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Orr v. Orr, 440 U.S. 268, 279 (1979); Califano v. Goldfarb, 430 U.S. 199, 210-211 (1977); Califano v. Webster, 430 U.S. 313, 316-317 (1977); Craig v. Boren, supra at 197. This analysis applies whether the classification discriminates against males or against females. Caban v. Mohammed, supra at 394; Orr v. Orr, supra at 278-279; Craig v. Boren, supra, at 204. 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, ante at 461; Wengler v. Druggists Mutual Ins. Co., supra at 151-152; Caban v. Mohammed, supra at 393; Craig v. Boren, supra at 204. 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; Orr v. Orr, supra, at 281, 283. [n3]
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. [n4] But even assuming that prevention of teenage [p491] pregnancy is an important governmental objective and that it is, in fact, an objective of § 261.5, see infra, at 491-196, 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. [n5]
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 crimina prosecution. [p492] 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.
Ante at 473-474 (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.
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. [n6] California has introduced no evidence that those States have been handicapped [p493] by the enforcement problems the plurality finds so persuasive. [n7] Surely, if those States could provide such evidence, we might expect that California would have introduced it.
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. [n8] Common sense, however, suggests [p494] that a gende-neutral statutory rape law is potentially a rgeater 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.
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. [n9] Because [p495] their chastity was considered particularly precious, those young women were felt to be uniquely in need of the State's protection. [n10] In contrast, young men were assumed to [p496] be capable of making such decisions for themselves; the law therefore did not offer them any special protection.
It is perhaps because the gender classifiation 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 beween the classification and its newly asserted goal. Cf. Califano v. Goldfarb, 430 U.S. at 223 (STEVENS, J., concurring in judgment). But whatever the reason, the State has not shown that Cal.Penal Cod § 261.5 is any more effective than a gender-neutral law would be in deterring 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.
1. 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 467. 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 § 2615
As the California Supreme Court stated in People v. Hernandez, 61 Cal.2d 529, 531, 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.
2. 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 (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 473. 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 478, 479. 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 482. 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 its hurden 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.
3. Gender-based statutory rape laws were struck down in Navedo v. Preisser, 630 F.2d 636 (CA8 1980), United State v. Hicks, 625 F.2d 216 (CA9 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950 (1978), precisely because the government failed to meet this burden of proof.
4. 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, 601 P.2d 572, 575 (1979) (emphasis in original).
5. 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 (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 (1977). Thus, despite the suggestion of the plurality to the contrary, ante at 472-473, 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.
6. 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).
7. 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.
8. As it is, § 261.5 seems to be an ineffective deterrent of sexual activity. Cf. Carey v. Population Services International, supra at 695 (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 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 (STEVENS, J., concurring).
9. 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 § 261, 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).
10. 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. Verdereen, 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, 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.