U.S. v. Smith, s. 76-3349

Decision Date16 February 1978
Docket NumberNos. 76-3349,s. 76-3349
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alfred SMITH, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Irvin WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph KOMOK, Defendant-Appellant. to 76-3351.
CourtU.S. Court of Appeals — Ninth Circuit

Keith L. Kessler (argued), William J. Bender (argued), Seattle, Wash., Denton P. Andrews (argued), Gig Harbor, Wash., for defendants-appellants.

John Obenour, Asst. U.S. Atty. (argued), Tacoma, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KILKENNY, SNEED and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Appellants, three male inmates of the federal penitentiary at McNeil Island in Washington, committed forcible acts of sodomy upon another male prisoner. They were convicted under the Assimilative Crimes Act, 18 U.S.C. § 13, by application of a Washington statute, Wash.Rev.Code Ann. § 9.79.170 (1977), 1 which defines the offense of rape to include such acts. Id. § 9.79.140. 2 Appellants Williams and Smith were convicted of three counts under the statute and appellant Komok was convicted of one count. Appellants Williams and Smith were also convicted of assault with intent to commit a felony under 18 U.S.C. § 113.

Appellants contend that Congress did not intend to permit reference to state law for punishment of the sexual conduct in question, and that in any event to do so discriminates against them by reason of their sex in violation of the equal protection clause. It is further contended that, assuming the Assimilative Crimes Act does incorporate the Washington statute, the minimum prison term provisions of the Washington statute are not applicable to sentencing for the federal offense. We affirm the convictions but rule that the state sentencing provision which requires a minimum period of confinement was not binding on the district court judge. We therefore remand the case to the district court for resentencing.

Appellants argue that the Washington state statute may not be incorporated under the Assimilative Crimes Act since to do so would be to redefine and enlarge the definition of rape set forth by Congress in 18 U.S.C. § 2031. They cite Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946), wherein the Court held the Assimilative Crimes Act did not incorporate an Arizona statute prohibiting sexual intercourse with a girl under the age of eighteen years. The Court based its decision on a recognition that Congress had already covered the specific act committed by the defendant in a statute punishing adultery and had also legislated to proscribe the generic act of having carnal knowledge by a statutory rape section fixing the age of consent at sixteen years.

The federal statutory scheme with respect to the conduct punished in this case differs from the relevant scheme in Williams. Section 2031 of title 18 3 has been interpreted to punish rape as defined at common law, that is, carnal knowledge of a female by force or threat of force. Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970), modified, 434 F.2d 1283, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); see United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976); Oliver v. United States, 230 F. 971 (9th Cir.), cert. denied, 241 U.S. 670, 36 S.Ct. 721, 60 L.Ed. 1230 (1916). Hence Congress has neither proscribed the specific acts committed by these defendants nor the generic conduct in which they engaged in such a way as to indicate an intent to "(cover) the field with uniform federal legislation . . . ." Williams, 327 U.S. at 724, 66 S.Ct. at 785. There is no federal statute punishing the specific acts perpetrated by a homosexual rapist. See Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966).

In arguing that Congress did act with reference to the type of conduct in question here when it passed the statute proscribing rape, appellants rely upon the policy reflected by the Washington statute, which defines rape of a female and the act of sodomy as one and the same offense. Quite apart from the observation that congressional intent in passing the Assimilative Crimes Act in 1948 cannot be established persuasively by reference to a Washington statute enacted in 1975, the act of rape is not, for federal purposes, generically the same as the acts of sodomy committed here. The Washington statute reflects an approach to the delicate problem of defining sexual offenses which is an exception among the states, not the rule. The Model Penal Code and almost all state criminal codes classify sodomy as a crime distinct from common law rape. Model Penal Code §§ 213.1, 213.2 (1962); id. § 207.5, Comment at 279 (Tent.Draft No. 4, 1955); Comment, Sodomy Statutes A Need for Change, 13 S.D.L.Rev. 384 (1968). Sodomy has traditionally been defined as an offense generically distinct from the crime of rape. R. Perkins, Criminal Law 389-92 (2d ed. 1969). Congress enacted the Assimilative Crimes Act against this background. We conclude that enactment of the federal rape statute does not constitute legislative action with reference to acts of sodomy. Therefore, Congress did not intend to bar incorporation through the Assimilative Crimes Act of a state statute which makes the act of sodomy a criminal offense.

Appellants contend that since their conduct is proscribed by 18 U.S.C. § 113(b) (assault with intent to commit a felony), the reasoning of Williams precludes application of the Assimilative Crimes Act. We reject this argument because the federal assault statute does not punish "the precise acts upon which the (Assimilative Crimes Act) conviction depends . . . ." Williams, 327 U.S. at 717, 66 S.Ct. at 781. Rape as defined by the Washington statute requires sexual contact between perpetrator and victim, whereas the federal statute prohibiting assault does not require physical contact, United States v. Bell, 505 F.2d 539 (7th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1357, 43 L.Ed.2d 442 (1975), and in cases where the victim is physically touched does not require the contact to be a sexual one. The two crimes are readily distinguishable. Congressional specificity with respect to assault does not preclude incorporation of the offense in question here under the Assimilative Crimes Act.

Appellants argue that application of the Washington statute in an Assimilative Crimes Act prosecution for forcible sodomy constitutes denial of equal protection. Conviction under the Washington statute carries a minimum sentence of twenty years while the specific federal rape statute provides no such minimum sentence. It is argued that the difference in the penalties for these offenses constitutes unlawful discrimination on the basis of sex. We cannot agree.

The Washington statute, when operating exclusively in the state sphere, imposes the same punishment for all sexual offenses of the types here considered. Sexual abuses by a male or female against a victim of either sex carry the same sanction. The federal rape statute assigns a lower penalty, but it applies only to a male who rapes a female. We have recently held that the perpetrator of a crime may not construct an equal protection claim based on a distinction resulting from the sex of his victim, United States v. Green, 554 F.2d 372, 375 (9th Cir. 1977); see United States v. Garrett, 521 F.2d 444 (8th Cir. 1975), and to the extent appellants' equal protection argument is designed to state such a claim, we reject it.

We do not imply, even were we to accept the doubtful assumption that this classification turns on sexual characteristics of the offender recognized by the equal protection clause, that the statutory scheme fails to bear a fair and substantial relation to an important government interest. The physical abuses against the victim's anatomy committed in this case were acts distinct in kind from the act of rape as proscribed by federal statute and defined by common law. It is rational to determine that the harm, both physical and mental, suffered by victims of these two crimes are of a different quality in each instance. These distinctions are reflected in traditions and community attitudes that have prevailed for centuries, and penal laws may properly take account of such differences by assigning a separate generic classification to each offense. The separate classifications have utility in various respects. For example, the Model Penal Code section proscribing rape defines aggravating circumstances that increase the degree of the felony, but these aggravations are not provided for in the section covering the offense of sodomy. Model Penal Code §§ 213.1, 213.2 (1962). In the instant case, the use of the distinction is a demarcation for giving effect to a federal or state law enforcement policy. If a crime is distinct, or if it can rationally be defined as such, we cannot invalidate Congress' choice of a scheme by which punishment for that crime depends upon local, rather than federal, law. It is quite beside the point that the two offenses have been treated the same under Washington law. Congressional policy, not state policy, controls the case. The equal protection clause is not offended when Congress punishes one offense by assimilation of a state statute but provides its own definition and punishment for a rationally distinguishable offense.

We turn to a consideration of the applicable sentencing requirements for the Assimilative Crimes Act convictions. The Act provides that upon conviction under an applicable state statute the defendant shall be "subject to a like punishment." 18 U.S.C. § 13. The Washington statute requires that persons convicted of the sexual offenses involved here receive a...

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