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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Wilkes LANGDON, Defendant and Appellant.

Crim. B020590.

Decided: June 26, 1987

 Donald R. Wager, Los Angeles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., David F. Glassman, Deputy Atty. Gen., Los Angeles, for plaintiff and respondent.

Sterility is not a defense to the crime of unlawful sexual intercourse.   (Pen.Code, § 261.5.) 1  [[ ]]

Defendant Langdon agreed that the issue of his guilt of the offenses, unlawful sexual intercourse (§ 261.5), and oral copulation (§ 288a, subd. (b)(1)) could be submitted to the trial court on the preliminary hearing transcript and a stipulation that because of a vasectomy Langdon's semen had a zero sperm count.


Langdon hired the victim to work in his hotel when she was 10 years old.   Over the next seven years, she worked in a variety of capacities—as a maid, bus girl, hostess, waitress and cook.   When she was 15 Langdon, and several friends of his, spent the weekend with her at the hotel.   After giving her drugs to make her drowsy, Langdon had sexual intercourse with her throughout the weekend.

Langdon had sex with her on other occasions over the next two years.   In particular, the victim testified to the specifically-charged incidents of sexual intercourse and oral copulation occurring in August and September of 1984.

 The court found Langdon guilty of both counts.


Langdon contends that because he is physiologically incapable of impregnating a female, because of his vasectomy, he cannot be convicted of the charge of unlawful sexual intercourse.  [[ ]]

Langdon relies on Michael M. v. Superior Court (1979) 25 Cal.3d 608, 159 Cal.Rptr. 340, 601 P.2d 572, affirmed at 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437, to support this contention.   In Michael M., the California Supreme Court, using a compelling state interest standard, rejected the contention that section 261.5 violates the Equal Protection Clause of the Fourteenth Amendment in that only males may be convicted of it.   The court held that the section was primarily designed to prevent teen-age pregnancies, and disparate treatment of males is constitutionally justified because the burden of teen-age pregnancies falls on the female.  (Id., at pp. 610–611, 159 Cal.Rptr. 340, 601 P.2d 572;  see also Michael M. v. Sonoma County Superior Court (1981) 450 U.S. 464, 470, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437.)

It does not follow that because one of the purposes of the statute is the prevention of teen-age pregnancies, a man is immune from prosecution under the statute because he is unable to impregnate a female.  Michael M. specifically rejected the contention that section 261.5 was overly broad for its inclusion of those men “incapable of procreation ․” or who assert they used other forms of birth control.  (Michael M. v. Superior Court, supra, 25 Cal.3d at pp. 612–613, 159 Cal.Rptr. 340, 601 P.2d 572.)   The court noted the legislators' reluctance to rely “ ‘․ upon the doubtful efficacy of contraceptives and the truth of the inevitable claim of non-emission by a male charged with statutory rape.’ ”  (Id., at p. 613, 159 Cal.Rptr. 340, 601 P.2d 572, citing State v. Rundlett (Me.1978) 391 A.2d 815, 821, fn. 18.)

We reject Langdon's contention that because there is no doubt or uncertainty as to his sterility, he has a non-statutory defense to the crime.   Impregnation is not an element of the crime, but penetration is. Langdon's vasectomy did not render him incapable of accomplishing this act.

Although prevention of pregnancy is one purpose of the statute, it may not be the only one.  (Michael M. v. Sonoma County Superior Court, supra, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437.)   The United States Supreme Court  stated that inquiries into legislative motives are hazardous;  it is often an elusive search.   Legislators may have voted for the statute under consideration here “․ for a variety of reasons.   Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of ‘chastity,’ and still others about promoting various religious and moral attitudes towards premarital sex.”  (Id., at pp. 469–470, 101 S.Ct. at p. 1204.)   If the Legislature desires to carve out defenses for particular classes of people, it is free to do so.   We shall not do so by judicial decree. (See Michael M. v. Superior Court, supra, 25 Cal.3d at pp. 614–615, 159 Cal.Rptr. 340, 601 P.2d 572.)

[[ ]]

The judgment is affirmed.


1.   All future references to code sections refer to the Penal Code unless otherwise stated.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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