B.B. v. State

• Decision Date: 29 June 1995
• Docket Number: No. 83712,83712
• Citation: 659 So.2d 256
• Parties: 20 Fla. L. Weekly S306 B.B., a child, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 256

659 So.2d 256

20 Fla. L. Weekly S306

B.B., a child, Petitioner, v. STATE of Florida, Respondent.

No. 83712.

Supreme Court of Florida.

June 29, 1995.

Rehearing Denied Aug. 24, 1995.

Robert E. Jagger, Public Defender, and Stephen L. Romine, Asst. Public Defender, Clearwater, for petitioner.

Robert A. Butterworth, Atty. Gen., and Ron Napolitano, Asst. Atty. Gen., Tampa, for respondent.

WELLS, Justice.

We have for review a decision of the Second District Court of Appeal, State v. B.B., 637 So.2d 936 (Fla. 2d DCA 1994), which certified the following question to be of great public importance:

Whether Florida's privacy amendment, Article I, Section 23 of the Florida Constitution, renders section 794.05, Florida Statutes (1991), unconstitutional as it pertains to a minor's consensual sexual activity?

Id. We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We answer the certified question in the affirmative as it is applicable to this prosecution of B.B., who was a minor of sixteen years when charged.

B.B. was charged on January 21, 1993, with sexual battery. The victim was also sixteen years of age. After B.B. was deposed, the state attorney amended the petition from sexual battery to unlawful carnal intercourse pursuant to section 794.05, Florida Statutes (1991). Section 794.05 provides that:

(1) Any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) It shall not be a defense to a prosecution under this section that the prosecuting witness was not of previous chaste character at the time of the act when the lack of previous chaste character in the prosecuting witness was caused solely by previous intercourse between the defendant and the prosecuting witness.

B.B. filed a motion to declare the statute unconstitutional as violative of his right to privacy and to dismiss the petition. The circuit court, relying on In re T.W., 551 So.2d 1186 (Fla.1989), found section 794.05 unconstitutional and granted the motion. Specifically, the trial court found that petitioner had a right to privacy guaranteed by article I, section 23 of the Florida Constitution and that the right outweighed the State's interest in protecting minors from the conduct of others.

The State appealed, and the district court reversed the circuit court's findings, relying on Jones v. State, 619 So.2d 418 (Fla. 5th DCA 1993), approved, 640 So.2d 1084 (Fla.1994). The district court certified the above question to this Court.

Initially, we note that section 794.05 is materially different from section 800.04, Florida Statutes (1991), ¹ which we upheld in Jones v. State, 640 So.2d 1084 (Fla.1994), against an attack as to its constitutionality. We do not recede in any way from the holding or reasoning in Jones.

Unlike the Jones case, our focus is not upon whether a minor's consent to sexual intercourse is a defense to a prosecution under a statute prohibiting sexual activity with a minor. Likewise, we do not view the issue presented in this case as being whether it is for the legislature or the courts to determine "Florida's age of consent." If our decision were based upon whether minors could consent to sexual activity as though they were adults, our decision would be "no" for the reasons stated in Justice Kogan's concurring opinion in Jones v. State, 640 So.2d 1084, 1087 (Fla.1994). The issue here, however, is whether a minor who engages in "unlawful" carnal intercourse with an unmarried minor of previous chaste character can be adjudicated delinquent of a felony of the second degree in light of the minor's right to privacy guaranteed by the Florida Constitution.

In In re T.W., 551 So.2d 1186 (Fla.1989), the majority of this Court recognized that based upon the unambiguous language of article I, section 23 of the Florida Constitution, "[t]he right to privacy extends to '[e]very natural person.' Minors are natural persons in the eyes of the law and '[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.' " Id. at 1193. Our analysis, therefore, begins with the recognition that the right to privacy extends to B.B.

Our decision in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985), instructs that we next determine whether this minor had a legitimate expectation of privacy in carnal intercourse. Carnal intercourse is by express definition an intimate act. In Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633, 636 (Fla.1980), we recognized that various intimate personal activities such as marriage, procreation, contraception, and family relationships fall within the privacy interest recognized by the Federal Constitution. Following the 1980 adoption of article I, section 23 of the Florida Constitution, this Court held that Florida's privacy amendment, which provides "an explicit textual foundation for those privacy interests inherent in the concept of liberty" extends to minors with respect to abortion. In re T.W., 551 So.2d at 1192 (quoting Rasmussen v. South Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987)). Consistent with these decisions, we conclude that Florida's clear constitutional mandate in favor of privacy is implicated in B.B., a sixteen-year-old, engaging in carnal intercourse.

Having determined that this statute does implicate B.B.'s right to privacy, the "stringent test" enunciated in Winfield must be applied to the statute. Again, our analysis is in accord with the opinion concurred in by the majority in In re T.W., holding that "[c]ommon sense dictates that a minor's rights are not absolute; in order to overcome these constitutional rights, a statute must survive the stringent test announced in Winfield: The state must prove that the statute furthers a compelling state interest through the least intrusive means." 551 So.2d at 1193. Thus, once it is determined that a citizens's privacy interest is implicated, this test shifts the burden to the State to justify the intrusion of privacy. We find that the State failed to meet its burden in applying section 794.05 to adjudicate a minor as a delinquent second-degree felon.

The State contends that the compelling state interest furthered by this statute is the same as the state interest which we found to be compelling in Jones. However, in Jones we were dealing with a situation where section 800.04 was applied to charge an adult engaged in sexual activity with a minor under the age of sixteen years. We there held, and reiterate here, that the rights of privacy that have been granted to minors do not vitiate the legislature's efforts to protect minors from the conduct of others. " '[S]exual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy.... The state unquestionably has a very compelling interest in preventing such conduct.' " 640 So.2d at 1086 (quoting Schmitt v. State, 590 So.2d 404 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992)).

While we do recognize that Florida does have an obligation and a compelling interest in protecting children from sexual activity before their minds and bodies have sufficiently matured to make it appropriate, safe, and healthy for them and that this interest pertains to one minor engaging in carnal intercourse with another, the crux of the State's interest in an adult-minor situation is the prevention of exploitation of the minor by the adult. Whereas in this minor-minor situation, the crux of the State's interest is in protecting the minor from the sexual activity itself for reasons of health and quality of life. Having distinguished between the State's interest in the adult-minor situation and in the minor-minor situation, we conclude that the State has failed to demonstrate in this minor-minor situation that the adjudication of B.B. as a delinquent through the application of section 794.05 is the least intrusive means of furthering what we have determined to be the State's compelling interest.

The history of this particular statute is rooted in a law created before 1892. See Sec. 2598, Revised Statutes of Fla. (1892); 22 Fla.Stat.Ann. 727 (1992) (Historical and Statutory Notes). The law was enacted originally for the purpose of "protecting the virginity of young maidens," Simmons v. State, 151 Fla. 778, 783-84, 10 So.2d 436, 438 (1942), and to "protect virtuous young women ... within the specific age from defilement." State v. Bowden, 154 Fla. 511, 516, 18 So.2d 478, 481 (1944). In 1921, the law was changed to protect both males and females. See Ch. 8596, Laws of Fla. (1921). In 1935, this Court expressed the view that the statute was "designed to protect the youth of this State of both sexes from the initial violation of their actual condition of sexual chastity, rather than from the consequences of their subsequent voluntary indulgence in unmorality." Deas v. State, 119 Fla. 839, 842, 161 So. 729, 730 (1935). It was on this basis that the Court explained why the statute protected only unmarried minors who were chaste.

We agree with the opinion of the Fourth District Court of Appeal in Victor v. State, 566 So.2d 354 (Fla. 4th DCA 1990), that the purpose of section 794.05(1), Florida Statutes, is "to protect minors from sex acts imposed by adults." Victor, 566 at 356. Here, though, section 794.05 is not being applied in furtherance of the purpose delineated by the district court in Victor. Section 794.05 is not being utilized as a shield to protect a minor, but rather, it is being used as a weapon to adjudicate a minor delinquent. Thus, we do not hold that section 794.05 is facially unconstitutional but only that it is unconstitutional as applied to this 16-year-old as a basis for a...