Kruger v. State

• Decision Date: 28 October 1981
• Docket Number: No. 60696,No. 2,60696,2
• Parties: Jimmy KRUGER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 386

623 S.W.2d 386

Jimmy KRUGER, Appellant, v. The STATE of Texas, Appellee.

No. 60696.

Court of Criminal Appeals of Texas, Panel No. 2.

Oct. 28, 1981.

Michael W. George, William L. Smith, Jr., Denton, for appellant.

Jerry W. Cobb, County Atty., and David Bays, Asst. County Atty., Denton, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for rape of a child, where the punishment was assessed by the jury at ten (10) years' imprisonment and a fine of $5,000.00, probated.

On appeal appellant's sole ground of error is the conviction is based upon V.T.C.A., Penal Code, § 21.09, which statute is unconstitutional in that it invidiously discriminates against males in violation of the Fourteenth Amendment, United States Constitution, and Article I, § 3a of the Texas Constitution.

This same contention was raised in and answered adversely to appellant's argument in Ex parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978). We adhere to Groves.

The judgment is affirmed.

CLINTON, Judge, dissenting.

Well aware that it is presumptuous of me to urge that the present condition of judicial gloss, only recently applied to a statute by the Court, be examined for defects, I do so in light of intervening developments and other reflections. ¹

The offense as in Groves, cited in the margin, is "rape of a child," ² commonly called "statutory rape." When a female and a male, neither being married, willfully assume the missionary position and engage in the physical acts that constitute consensual sexual intercourse, is either committing a penal offense against the laws of the State of Texas? The answer: It all depends on how one reads the law.

V.T.C.A. Penal Code, § 21.09 first provides:

"(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years."

That language seems simple enough-a man offends the law when he engages in even consensual sexual intercourse with a woman who has not yet attained her seventeenth birthday. ³ Thus, translated into more traditional terms, 17 is the age of consent for a female, ⁴ according to this legislative expression in § 21.09(a). ⁵ Ex parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975). And, under the former penal code Article 1183, ⁶ P.C. 1925, the offense was complete with or without the consent of a female under 18 years of age. Purifoy v. State, 163 Tex.Cr.R. 488, 293 S.W.2d 663, 664 (1956) and cases cited therein.

Thus, the Legislature appears to have enacted a facially gender based criminal law which makes it a felony of the second degree for a male to have sexual intercourse with a consenting teenager female. Only by judicial construction may it be said to be a crime for a woman to have normal sexual intercourse with a male younger than 17 years-just as Groves did.

It is a defense to prosecution that the female participant is at least 14 years old and promiscuous in her sexual activity, § 21.09(b). ⁷ It is an affirmative defense to prosecution that the difference in ages of the participants is not more than two years; ⁸ that is, that in what may be a completely consensual encounter whomever is considered the "actor"-now "suspect" ⁹-was not more than two years older than whomever is designated the "victim." ¹⁰ (While there is no legislative recognition given to the situation where the suspect is even younger than the victim, presumably that fact may be presented as an affirmative defense.)

Reflecting on the whole statute as written, one easily discerns that after the promiscuous teenagers and trysting adolescent lovers are excused what violators remain will seldom be identified so long as the Groves construction is extant, for a sexual participant runs the risk of being considered a suspect rather than a victim. It is that very feature that representatives of the State of California pointed to in persuading the Supreme Court of the United States "that a gender-neutral statute would frustrate its interest in effective enforcement." That is, "a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution," Michael M. v. Superior Court, supra, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437. ¹¹ For that reason alone the Groves reading of the statute should be reexamined. This Court might formulate some theory to uphold it-as a majority of the Supreme Court did in Michael M., supra, while not agreeing on what it was ¹²-although in my view § 21.09 is nothing more than a script for a morality play that government has no business producing.

Irrationality of § 21.09 is evident-and I mean that in the "liberty" sense of Due Process and Due Course of Law, rather under some Equal Protection doctrine.

To hold one teenager criminally responsible for participating in a consensual act of normal sexual intercourse on grounds that the other willingly participating teenager is legally barred by artificially determined number of years of age from consenting to do what that one is freely doing is manifestly arbitrary. To say that it is rendered less capricious by allowing an escape from criminal responsibility when the consent-barred participant is demonstrably promiscuous or is within two years of the age of the accused only undermines a given premise of the legislation-if, contrary to historical fact, ¹³ prevention of illegitimate pregnancy is, indeed, the idea.

The defense of promiscuity negates the idea. So does the affirmative defense of a two-year age differential, for the wide range thus fenced off-I am unable to perceive a minimum age for the participating female-admits sexual gamboling by pairs of contemporary teenagers that is most likely to result in pregnancy. Indeed, the very design of the age differential is, we are told by the Practice Commentary, "to exclude from the talons of the criminal law children in the same age bracket." Thus, unlike California's law, here there is sure indication that the intent and purpose of § 21.09 is not to discourage consensual sexual intercourse between the very peers whose immaturity and inexperience lead to the consequence of pregnancy. See statistics discussed by the plurality opinion in Michael M., supra, 28 CrL 3123, ns. 3 and 5.

"(T)he objective of the incapable-of-consent offense," states the Practice Commentary, "is to prevent imposition by the older and presumably more experienced," to focus "on the true offender, he who takes advantage of a child's immaturity." Yet, while not invariably so, a cursory examination of cases annotated to § 21.09 reveals that it is, and its predecessor was, often utilized by the prosecuting attorney to upgrade what is really incest, ¹⁴ a felony of the third degree, to the second degree felony of statutory rape. Illustrative are the stepfather in Groves, this day decided on appeal; the adoptive father in McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974); the stepfather in Cause No. 47,896 in Carter v. State, 506 S.W.2d 876, 879 (Tex.Cr.App.1974) and also in Seaton v. State, 564 S.W.2d 721, 723 (Tex.Cr.App.1978); apparently the father in Ex parte Smith, 571 S.W.2d 22 (Tex.Cr.App.1978). Thus, the statute still retains that moralistic character bestowed by the Legislature in 1918.

Normal sexual intercourse surely is one of the most intimate acts engaged in by consenting couples. Any attempt by government to regulate such interpersonal conduct directly implicates that aspect of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment and by the Due Course Clause of Article I, § 19 of our own Bill of Rights now recognized as "a right of personal privacy, or a guarantee of certain areas or zones of privacy," Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973), which "includes 'the interest in independence in making certain kinds of important decisions.' Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977)," Carey v. Population Services International, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). "State restrictions inhibiting privacy rights of minors are valid only if they serve 'any significant state interest... that is not present in the case of an adult'," id., 431 U.S. at 693, 97 S.Ct. at 2020. While the Supreme Court has assumed that the Constitution does not bar state regulation of sexual behavior of minors, still it critically examines assertions that a related regulation serves significant state interests in discouraging early sexual behavior, id., at 694 n. 17 and 695-696, 97 S.Ct. at 2021 n. 17 and 2022, and looks for "supporting evidence" to justify the assertion, id., at 696, 97 S.Ct. at 2022.

In the case at bar the State does not even assert any significant interest, content merely to cite and rely only on Ex parte Groves, supra, in its halfpage "Argument and Authorities." Since I would reexamine Groves, the State's expressed position is not helpful, but it might be shored up if given another opportunity.

Accordingly, I would determine to address Ex parte Groves again and order the parties to submit fresh briefs directed to both Equal Protection and Due Process issues that appear in the case. Because the majority does otherwise, I respectfully dissent.

1 In Ex parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978), the Court derived from the "gender" provision of our Code Construction Act an interpretation that "makes it a second degree felony for any person to have 'sexual intercourse with a male not her husband and he is younger than 17 years'." (Emphasis in original.) From that interpretation the Groves Court professed the belief "that the Legislature intended to protect both male and female victims of rape," and so held. Therefore, concluded the Court in Groves, "Under our interpretation...