PEOPLE v. McKELLAR (1978)

This is a challenge to the constitutionality of Penal Code section 261.5. The section provides: “Unlawful sexual intercourse is 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.” Although the statute has been held constitutionally valid (People v. Mackey, 46 Cal.App.3d 755, 120 Cal.Rptr. 157), appellant argues that recent decisions^[FN1] require us, in examining sex classification statutes, to use the constitutional test of strict judicial scrutiny rather than the rational basis test. For this reason we have not relied solely on Mackey, which does not address this issue, and have instead chosen to answer the challenge on its merits.

Appellant was charged with four counts of unlawful sexual intercourse (Pen.Code, s 261.5) and three counts of oral copulation (Pen.Code, s 288a) with a girl 16 years of age. For the purpose of establishing the constitutional issue raised on appeal both parties stipulated that they consented to the sexual activities. Pursuant to a plea bargain, appellant pleaded guilty to one count of a misdemeanor violation of Penal Code section 261.5, and a certificate of probable cause for appeal was issued by the trial court so that the constitutional issue could be pursued.

Appellant has conceded that the state has a compelling interest in preventing and punishing all cases of sexual intercourse with victims who are minors when there is not free, full and genuine consent. However, he argues in various ways that changing social mores have made consensual sexual intercourse so acceptable, as between mature partners, that it is a fundamental right to engage in the act in private; therefore, the validity of the law can only be determined by applying the “strict scrutiny” test of constitutional law. In brief, he claims the statute cannot meet this standard of review and that it violates due process and equal protection requirements because it (1) creates an unreasonable conclusive presumption as to the absence of consent;^[FN2] (2) violates his right to liberty without compelling justification; (3) distinguishes in an impermissible way between mature minors and adults; and (4) unconstitutionally distinguishes between males and females for the purpose of making certain behavior criminal.

It is true that some broad language in numerous cases has decreed that statutory classifications based on sex are suspect, thereby subjecting the classification to strict judicial scrutiny. A review of these cases discloses, however, that they deal with classifications where the physical differences between the genders are not of paramount importance. Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, involved discrimination between male and female bartenders; in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, male probate administrators were given preference over females; in Craig v. Boren, supra, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, females age 18 could purchase beer while males could not until they were 21; and in Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, the court suggests that married and unmarried adults have a constitutional right to engage in sexual intercourse in private. None dealt with la difference per se.

In the recent case of Meloon v. Helgemoe, supra, 564 F.2d 602,^[FN3] the court, in considering a New Hampshire statutory rape law, adopts a middle ground suggested in Reed and Craig, supra. These cases appear to favor, in certain situations, a departure from the “two-tier” approach (strict scrutiny or rational basis) to an in-between concept. The standard stated is: “The statute at issue in this case is a classification based on sex. As such it requires more heightened scrutiny than would be applied to completely non-suspect legislation, but less stringent scrutiny than is typically applied to racial classifications, (citations).” (Meloon, supra, at p. 604.)^[FN4]

The great majority of cases in all jurisdictions recognize that there is no constitutional issue when the classification in question is based on physical characteristics between the sexes rather than psychological, social, etc. In such cases the sexes are not similarly situated and equal protection is not required. (People v. Salinas (Colo.1976) 551 P.2d 703.)

Jurisdictions that recognize this principle use the rational basis test for judicial review of the statute. This traditional test, simply stated, is that the “distinction drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.' ”^[FN5] (In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 261, 473 P.2d 999, 1005.) The states applying this test to unlawful intercourse (statutory rape) are principally concerned with preventing pregnancy in minor females. The reasoning in support of these laws is cogently articulated in In re Interest of J.D.G. (Mo.1973) 498 S.W.2d 786, a case also dealing with the same consensual intercourse argument that is urged here. The court states at page 792: “Age is a legitimate legislative consideration when the evil sought to be prevented is directly related to knowledge of the consequences of the prohibited act by the party who will be seriously damaged by the act and where, in the very nature of things, one of the participants cannot suffer as serious and substantial adverse consequences as the other. (P) The example that obviously comes to mind is that the female can become pregnant but the male cannot. Along with pregnancy comes all of the attendant psychological, medical, sociological, and moral problems, including questions of whether to have an abortion or to bear the child. While other adverse effects on the female could be set forth as well as the problems of the bastard child, it is obvious to all that there are virtually no adverse consequences to the male but the effect upon the female can be disastrous. (P) The selection of the female age factor in a statutory rape statute is basically a legislative function. The court holds that the female age factor contained in (the statute) is directly and reasonably related to the evil sought to be prevented and does not violate the Equal Protection Clause of the Missouri or United States Constitutions.” (Italics added.) And in State v. Drake, supra, 219 N.W.2d 492, 496, the court noted: “sex is the only possible classification if the purposes of the statute are to be realized. Once we accept the principle that the purpose of the statute to protect certain young females from sexual intercourse is a proper subject of state interest, it inevitably follows that the curbs adopted to accomplish that purpose can only be imposed against males because they are the only persons who may inflict the injury which the law seeks to avoid.” (Italics in original.)

In this state, in People v. Mackey, supra, 46 Cal.App.3d 755, 120 Cal.Rptr. 157, the court said (pages 760-761, 120 Cal.Rptr. page 160): “In the case at bench the girl had recently completed her 14th year; defendant had recently completed his 17th year. It would be unrealistic to base a conclusion as to the reasonableness of the statute's classification of the protected class upon a belief that girls of the age of the victim in this case are no more likely than boys of the same age to be the objects of the desires and designs of older people of the opposite sex who are on the prowl. (P) We hold that the statute is not unconstitutional in extending its protection only to female persons under the age of 18.”

One final statement on this issue is compelling. In 80 Yale L.J. 872,^[FN6] (1971), a leading article on the Equal Rights Amendment supports the rationale applied here. Beginning on page 893, it states that the fundamental legal principle underlying the ERA “does not preclude legislation (or other official action) which regulates, takes into account, or otherwise deals with a physical characteristic unique to one sex. . . . Legislation of this kind does not . . . deny equal rights to the other sex. So long as the law deals only with a characteristic found in all (or some) women but no men . . . it does not ignore individual characteristics found in both sexes in favor of an average based on one sex. Hence such legislation does not, without more, violate the basic principle of the Equal Rights Amendment . . . Laws punishing forcible rape, which relate to a unique physical characteristic of men and women, would remain in effect.”

We agree with the argument of the Attorney General that the Legislature in enacting section 261.5 was concerned primarily with the “pregnancy prevention rationale” with females under 18. For the reasons stated earlier most of the problems encountered by the female when pregnant do not accrue to the male, minor or adult, who engages in sexual intercourse. The sexes are not similarly situated; therefore, the argument of appellant, ante, that males receive unconstitutional unequal treatment for the reasons stated, lacks merit. Equal treatment is not required. Appellant's argument that there is not a sufficient state interest in regulating consensual sexual behavior of mature minors (16 years old in our present case) also misses the mark. Today's newspapers, almost daily, contain stories of the problems to society caused by the many pregnant unmarried minor females. The selection of the female age factor is clearly for the Legislature. (In re Interest of J.D.G., supra,498 S.W.2d 786, 792.) We conclude section 261.5 represents a proper exercise of the Legislature's police power and the classification is reasonable and bears a genuine and substantial relationship to the object of the legislation.

Appellant's final contention is that Penal Code section 261.5 violates the right to privacy guaranteed by the California Constitution (art. I, s 1) when applied to genuinely consensual conduct. This argument, like appellant's other contentions is grounded on the premise that we are dealing with approved consensual conduct. We have explained earlier that the “consensual” argument fails when the legislative reasoning behind the statute is approved. There can be no consent to violate the law even when the law is for ones own self protection. In White v. Davis, 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 106, the Supreme Court reviewed the legislative history of the right to privacy amendment and noted it was intended to protect against four principal mischiefs: “. . . (1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing record.” Clearly the Legislature did not intend the amendment to create a right to engage in any consensual intercourse. If it did create such a right the amendment to Penal Code section 288a would have been an unnecessary act.

The judgment is affirmed.

FOOTNOTES

1.  Some of the cases cited are Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; and Meloon v. Helgemoe (1st Cir. 1977) 564 F.2d 602.

2.  On this argument appellant is raising the proverbial straw man. The section is not, strictly speaking, dealing with a presumption, or even an inference. It is not concerned with presumptions and consent is not an element of the crime. The section simply prohibits the act defendant committed. (State v. Drake, 219 N.W.2d 492, 496).

3.  At this writing, a petition for certiorari in Meloon (Helgemoe v. Meloon, No. 77-1058, filed 1/27/78) is pending before the United States Supreme Court.

4.  The New Hampshire statute ruled unconstitutional by Meloon was substantially broader than section 261.5. Unlike our statute, it dealt with consensual sexual intercourse and the court expressly stated that it found “only one particular statutory rape law to be unconstitutional” and that it did not “intend to question the constitutionality of the laws of other states.” (Id. at p. 609.)

5.  The power to make certain sexual conduct unlawful was also stated in People v. Drolet, 30 Cal.App.3d 207, 211-212, 105 Cal.Rptr. 824, 826, as follows:“In the exercise of its police power, each state has the right to enact laws to promote public health, safety, morals and welfare. (Citations.) Penal statutes proscribing illicit sexual contacts constitute a legitimate and proper exercise of that power. (See concurring opinions of Mr. Justice Goldberg and Mr. Justice White in Griswold v. Connecticut, (supra ), 381 U.S. 479, 498-499, 505, 85 S.Ct. 1678, 14 L.Ed.2d 510. . . .) The exercise of this power is a legitimate legislative function, and the courts do not sit as a super-legislative body to determine the desirability or propriety of statutes enacted by the Legislature. (Griswold v. Connecticut, supra, at p. 482, 85 S.Ct. 1678.)”

6.  “The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women,” authored by Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman.

HASTINGS, Associate Justice.

KAUS, P. J., and STEPHENS, J., concur.