JOSEPH J. MULLINS, Retired Circuit Judge.
The Grand Jury of Dallas County returned an indictment against the appellant, Arthur Larnell Baynes, charging him with the offense of rape in the second degree, a Class C felony, in violation of Section 13A-6-62 of the Code of Alabama, 1975. The appellant entered a plea of not guilty. A jury returned a verdict finding the appellant guilty of rape in the second degree as charged in the indictment. The trial court
The appellant was represented at all proceedings in the trial court by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.
duly sentenced the appellant to the penitentiary for a period of ten years. The appellant duly appealed to this Court.
The appellant states in his brief three reasons why his conviction should be reversed because of prejudicial error of the trial court: (1) in ruling that Code of Alabama, 1975, Section 13A-6-62 does not violate the equal protection clause of the fourteenth amendment, because it is strictly a sex and gender based statute; (2) in refusing to give jury charges one and three; (3) in admitting state exhibits.
State's evidence tended to prove that on May 24, 1981 at about 2:30 or 3:00 o'clock, A.M. the victim of the crime charged against the appellant was a fourteen-year-old girl child, was asleep in her bed in her bedroom in her home in the City of Selma, Dallas County, Alabama, when the appellant, a twenty-nine-year-old male, came into her bedroom and waked her up, got on her bed, and pinned her arms down, and pulled her panties down, threatened to strike her if she screamed out, and had intercourse with her by placing his private parts in her private parts. The appellant did not testify in his own behalf. There being ample evidence in the record to sustain the jury's verdict, a detailed statement of all the facts surrounding the charge against the appellant would serve no useful purpose.
The appellant's first argument in his brief is that Code of Alabama, 1975, Section 13A-6-62, is unconstitutional because it is strictly a sex and gender based statute in violation of the equal protection clause of the fourteenth amendment of the Constitution of the United States of America.
Section 13A-6-62 provides:
"Rape in the second degree.
"(a) A male commits the crime of rape in the second degree if:
"(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.
"(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being mentally defective.
"(b) Rape in the second degree is a Class C felony. (Acts 1977, No. 607, p. 812, Sec. 2311; Acts 1979, No. 79-471, p. 862, Sec. 1.)"
This Court and the Supreme Court of the United States Of America have recently passed upon similar statutes and held them to be valid and not in violation of the fourteenth amendment.
We quote from the case of Smith v. State, Ala.Cr.App., 409 So.2d 455, at page 460, where Judge Tyson of this Court said:
"(8) True these statutes clearly single out males for more severe punishment than that provided for females who commit a similar crime. However, Section 13A-6-61 (the only statute challenged in the instant case) will withstand constitutional scrutiny if its 'gender-based' classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relationship to the objective of the legislation. (Emphasis Supplied) Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Hobson v. Pow, 434 F.Supp. 362 (1977).
"The obvious objective of Section 13A-6-61(a)(1) (the only portion of this statute under attack) is to protect females from sexual attacks by males which result in nonconsensual sexual intercourse. This objective is a legitimate state interest because of the potential harm to the victim and society. [Emphasis Supplied] Female victims of nonconsensual sexual intercourse by males are subjected to a possible unwanted pregnancy and the medical, physical, sociological, moral, and psychological problems associated therewith, in addition to the physical injuries and psychological traumas potentially inflicted upon any victim of a sexual assault. This 'unwanted pregnancy' risk to
"Moreover, 'rape' of females is a long recognized and very serious problem in this state due not only to the severity of this potential harm to its victim but also to the frequency with which it occurs. This frequency factor further distinguishes a Section 13A-6-61(a)(1) crime from a Section 13A-6-65(a)(2) crime. The appellant has not presented and we are not aware of any evidence to the effect that nonconsensual sexual intercourse by females is as serious a problem as nonconsensual sexual intercourse by males.
the victims is uniquely characteristic of nonconsensual sexual intercourse perpetrated by males upon females in contrast with the similar act committed by a female upon an unwilling male. This specific characteristic of the crime described in Section 13A-6-61(a)(1), which presents the possibility of a higher degree of harm to its victims than does its counterpart described in Section 13A-6-65(a)(2), is the clearest example of a 'ground of difference' sufficient to justify this 'gender-based' classification.
"Moreover, such nonconsensual sexual intercourse often results in unwanted pregnancy. This too often results in society having to care for the victims who are the result of such attacks, as well as the children born as the result of such.
"These reasons are clearly a sufficient basis for legislative action.' "
And again we quote from Hall v. State, Ala.Cr.App., 365 So.2d 1249, at page 1253; Certiorari Denied, Ala., 365 So.2d 1253, where Harris, Presiding Judge of this Court, said:
"The state has a vital interest in the protection of young girls from the animalistic instincts of such men. It is the declared public policy of this State and in no wise runs afoul of the Equal Protection Clause of the Fourteenth Amendment, or any other constitutional provision."
We quote from the case of Michael M., Petitioner, v. Superior Court Of Sonoma County (California, Real Party in Interest), 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437, where Justice Rehnquist, speaking for the Supreme Court of The United States of America, in a case involving challenges to gender-based classifications, said:
"We have not held that gender-based classifications are 'inherently suspect' and thus we do not apply so-called 'strict scrutiny' to those classifications. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat 'sharper focus' when gender-based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.*, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Powell, J., concurring). In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), for example, the Court stated that a gender-based classification will be upheld if it (450 U.S. 469) bears a 'fair and substantial relationship' to legitimate state ends, while in Craig v. Boren, supra [429 U.S.] at 197, 97 S.Ct. 451, 50 L.Ed.2d 397, the Court restated the test to require the classification to bear a 'substantial relationship' to 'important governmental objectives.'
"Underlying these decisions is the principle that a legislature may not 'make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.' Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742 [1747], 60 L.Ed.2d 269 (1979) (plurality opinion of Stewart, J.,). But because the Equal Protection Clause does not 'demand that a statute necessarily apply equally to all persons' or require 'things which are different in fact ... to be treated in law as though they were the same,' (Emphasis Supplied) Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497 [1499-1500], 16 L.Ed.2d 577 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879 , 84 L.Ed. 1124, 130 A.L.R. 1321 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically
"We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the 'purposes' of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades,3 have significant social, medical, and economic consequences for both the mother and her child, and the State.4 (450 U.S. 471, 101 S.Ct. 1205)
reflects the fact that the sexes are not similarly situated in certain circumstances....
"Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.5 And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.6
"We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become...
