Jones v. State, s. 92-134

Citation619 So.2d 418
Decision Date04 June 1993
Docket Number92-1876,Nos. 92-134,s. 92-134
Parties, 18 Fla. L. Week. D1375 Quarry JONES, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. Erik RODRIGUEZ and Steven Williams, Appellees.
CourtCourt of Appeal of Florida (US)

James B. Gibson, Public Defender and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant in No. 92-134.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee in No. 92-134.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen Billy H. Nolas, Public Defender, and Julie D. Naylor, Asst. Public Defender, Ocala, for appellees in No. 92-1876.

West Palm Beach, for appellant in No. 92-1876.

David A. Henson of Kirkconnell, Lindsey & Snure, Winter Park, for amicus FACDL in No. 92-1876.

HARRIS, Judge.

We have for review the companion appeals in the cases of State v. Erik Rodriguez and Steven Williams (No. 92-1876) in which section 800.04, Florida Statutes (1991) was held unconstitutional and Quarry Jones v. State, (No. 92-134), in which the validity of the statute was upheld and Jones was sentenced to four and a half years in prison for violating it.

ISSUE

The issue involved in these companion cases is whether the expansive constitutional right of privacy of minors our supreme court announced in In re T.W., 551 So.2d 1186 (Fla.1989), renders unconstitutional that portion of section 800.04, which provides that consent is not a defense to a prosecution for sexual activity with a minor under sixteen.

STANDING

The State urges that the young men involved in these appeals lack standing to assert the young women's rights to privacy even if such rights exist. We reject this argument. The State relies on State v. Phillips, 575 So.2d 1313 (Fla. 4th DCA1991), rev. denied, 589 So.2d 292 (Fla.1991). We disagree with the analysis of Phillips. We find that the boyfriend who assists the minor child in achieving her constitutional right to engage in sexual activity (if, in fact, she has such a right) has the same standing as the doctor who assists the minor in obtaining her constitutionally protected right to have an abortion. Suppose, for example, the State, while recognizing the minor's right to an abortion, made it a second degree felony for any doctor to perform an abortion on a minor without parental consent. Would the State urge that the doctor could not assert as a defense the minor's right to an abortion? We think not. And even if the State took such a position, we doubt any court would lend it credence.

We hold, therefore, that the young men's position is similar to the appellants' in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and that they have standing to raise the alleged constitutional rights of their sexual partners as a defense to their prosecution.

FACTS

The relevant facts in the Rodriguez and Williams prosecutions are without dispute. Two young women, ages 14, had consensual sex with young men, ages 19 and 20. Neither of the "victims" wanted to prosecute; 1 the charges were initiated by family members (mother or sister). At least one of the young women desired (intended) to get pregnant and have a child. In the Jones prosecution, the defendant was denied the opportunity to raise consent as a defense.

MERITS

Our oath and the law require that we apply the law as determined by the Florida Supreme Court. This obligation is not based on the premise that we agree with the supreme court's opinion. Rather, it is based on the concept of precedent and the relative standing of the courts in the judicial hierarchy. This obligation not only requires us to apply such law in cases with similar facts or issues specifically covered by the supreme court's opinion, but also to give such effect to its opinion on related issues as appears intended by the supreme court. However, particularly because the supreme court must ultimately decide this issue and will have that opportunity to do so through our certification, we are at liberty to consider the possibility that the different policy concerns raised in this case might cause the supreme court to recede from, or at least clarify, the broad rule of law announced in T.W.

If this case involved abortion, the decision would be simple. The supreme court has ruled that a minor (of any age if such minor can become pregnant) has the constitutional right to an abortion without the parents' knowledge or consent. But this case does not involve abortion. Instead, the related issue before us is whether a minor under sixteen years of age has a right, protected by Florida's constitutional right of privacy, to engage in consensual sex. While this issue is not identical to the abortion issue before the court in In re T.W., we recognize that although it may be distinguished, it may be a distinction without a difference. That is why we certify the issue to the supreme court.

If the supreme court's opinion is vague, we are free to search for its intent. While the decision in T.W. regarding a minor's right to have an abortion is not at all vague, there are different policy concerns raised by the related issue of a minor's right to engage in consensual sex. If the decision in T.W. does not apply, it must be because of these differing policy concerns. 2 In that case and in sweeping language, the supreme court mandated that Florida's constitutional right of privacy be construed very broadly and that any constitutional rights of adults must also apply to minors unless the State meets a stringent burden of establishing a compelling state interest to restrict such constitutional rights:

The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words "unreasonable" or "unwarranted" before the phrase "governmental intrusion" in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.

In re T.W. at 1191-92, quoting Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985).

* * * * * *

The next question to be addressed is whether this freedom of choice concerning abortion extends to minors. We conclude that it does, based on the unambiguous language of the amendment: The right of 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. Minors, as well as adults, ... possess constitutional rights." ...

Common 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.

In re T.W., 551 So.2d at 1193.

The first question, then, is whether adults have a constitutional right to engage in sex without marriage. A few short years ago, the answer would have been different. Fornication was statutorily prohibited in Florida until 1979, when our supreme court ruled the statute unconstitutional. This holding was based on equal protection rather than right of privacy concerns. Purvis v. State, 377 So.2d 674 (Fla.1979). The legislature then repealed the fornication statute in 1983. Section 798.03, Florida Statutes, repealed by section 17, chapter 83-214. Despite the Purvis court's reliance on equal protection, it appears now that the right of privacy precludes the State from restricting an unmarried adult's right to engage in consensual sex.

If, then, a sixteen-year-old girl has a right to engage in consensual sex, 3 what compelling state interest can deny this "right" to a fifteen, fourteen or thirteen-year-old girl? The State's only response to this question is one similar to that considered by the United States Supreme Court in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797, rehearing denied, 444 U.S. 887, 100 S.Ct. 185, 62 L.Ed.2d 121 (1979). That is, the State's compelling interest arises from

... the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.

Bellotti, 443 U.S. at 634, 99 S.Ct. at 3043. 4

We are impressed with this argument. We agree with the Bellotti court that "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them," (443 U.S. at 635, 99 S.Ct. at 3044) and that the role of parents in "teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens." 443 U.S. at 638, 99 S.Ct. at 3045.

The Florida Supreme Court, in In re T.W., held that these considerations are relevant only under the relaxed standard of "significant state interest" applied by the United States Supreme Court to the United States Constitution. While our supreme court agreed that protecting minors and preserving family unity were "worthy objectives," the court held that they were not sufficiently compelling, under our more stringent "compelling state...

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