Meloon v. Helgemoe

• Decision Date: 31 October 1977
• Docket Number: No. 77-1197,77-1197
• Citation: 564 F.2d 602
• Parties: Thomas E. MELOON, Petitioner, Appellee, v. Raymond A. HELGEMOE, Warden, New Hampshire State Prison, et al., Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 602

564 F.2d 602

Thomas E. MELOON, Petitioner, Appellee, v. Raymond A. HELGEMOE, Warden, New Hampshire State Prison, et

al., Respondents, Appellants.

No. 77-1197.

United States Court of Appeals, First Circuit.

Argued Sept. 9, 1977.

Decided Oct. 31, 1977.

Peter W. Heed, Concord, N. H., with whom David H. Souter, Atty. Gen., Concord, N. H., was on brief, for appellants.

Eleanor Krasnow, Manchester, N. H., by appointment of the court, for appellee.

Before COFFIN, Chief Judge, TUTTLE, ^* Circuit Judge and WOLLENBERG, ^** District Judge.

COFFIN, Chief Judge.

Appellee, Thomas E. Meloon, was indicted and convicted under New Hampshire RSA 632:1 subd. I(c) in 1974 for the crime of "statutory rape". Meloon unsuccessfully appealed his conviction to the New Hampshire Supreme Court arguing among other issues that the New Hampshire statute violated the Fourteenth Amendment. ¹ State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976). In 1977 appellee filed a petition for a writ of habeas corpus with the United States District Court for the District of New Hampshire. The district court at first denied appellee's petition, but later reconsidered and granted the writ on the grounds that the statute under which appellee had been convicted violated the Equal Protection Clause. The state of New Hampshire appeals.

This case presents us with an unusual legal situation. New Hampshire has promulgated a gender based criminal law which makes it a felony for a male to have sexual intercourse with a consenting female under the age of 15, while it is not a crime of any kind for a woman to have normal sexual intercourse with a male under the age of 15. ² All of the other New Hampshire laws regulating sexual behavior which were brought to the attention of this court, as they pertain to the conduct of consenting parties, are gender neutral and apply equally to men and women. Appellee states that RSA 632:1 subd. I(c) discriminates against males; there can be little question that it does so since only male perpetrators of the offense are punished and only female victims of the crime are protected. We must decide whether such a discriminating classification violates the Fourteenth Amendment. We conclude that it does and affirm the decision of the district court.

It has long been recognized that a state has vast discretion in developing classifications and categories in the exercise of its police power. Legislatures may decide that certain groups of individuals will suffer particular penalties and others will not. As the Supreme Court indicated in upholding a law permitting the commitment of a "psychopathic personality",

"The question, however, is whether the legislature could constitutionally make a class of the group it did select. That is, whether there is any rational basis for such a selection. We see no reason for doubt upon this point. Whether the legislature could have gone farther is not the question. The class it did select is identified by the state court in terms which clearly show that the persons within that class constitute a dangerous element in the community which the legislature in its discretion could put under appropriate control. As we have often said, the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. If the law 'presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (31 S.Ct. 337, 55 L.Ed. 369); Miller v. Wilson, 236 U.S. 373, 384 (35 S.Ct. 342, 344, 59 L.Ed. 628); Semler v. Dental Examiners, 294 U.S. 608, 610, 611 (55 S.Ct. 570, 79 L.Ed. 1086); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (57 S.Ct. 578, 81 L.Ed. 703)." Minnesota v. Probate Court, 309 U.S. 270, 274-75, 60 S.Ct. 523, 84 L.Ed. 744 (1939).

See also Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539 (1914); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

The rational basis test described above is not appropriate for the constitutional evaluation of all criminal classification systems. Legislation which involves certain fundamental rights invites strict scrutiny, Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1941). Racial or "suspect" classification also require a compelling state interest to meet equal protection standards. Indeed, the Supreme Court has admonished that "with a racial classification embodied in a criminal statute . . . where the power of the State weighs most heavily upon the individual or the group, we must be especially sensitive to the policies of the Equal Protection Clause . . .", McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288-89, 13 L.Ed.2d 222 (1964).

The statute at issue in this case is a classification based on sex. As such it requires more heightened scrutiny than would be applied to completely non-suspect legislation, but less stringent scrutiny than is typically applied to racial classifications, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Moreover, since a criminal statute is involved, the standards governing gender classification must be applied with special sensitivity. In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the majority opinion evaluated a gender based state law with criminal implications under the rule that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id. at 197, 97 S.Ct. at 457. This is hardly a precise standard. Moreover, separate concurrences by Justice Powell and Justice Stevens make it unclear as to whether that standard has majority support. In brief we must decide the constitutionality of the New Hampshire statute under a test that to some indeterminate extent requires more of a connection between classification and governmental objective than that of the minimal rationality standard. ³ We do not believe the statute before us can withstand any such "fair and substantial relation" test. Reed v. Reed, supra, 404 U.S. at 71, 92 S.Ct. 251.

New Hampshire suggests four "reasons" for its classification scheme: (1) part of the class of males under the age of 15, pre-pubescent males, are physiologically incapable of becoming victims of this consensual offense; therefore the class of victims vulnerable to women offenders is smaller than the class of victims vulnerable to male offenders; (2) adult males, due to a psychological disorder known as pedophilia or otherwise, are more likely to seek to commit the offense than adult women; therefore the class of potential male offenders is larger than the class of potential women offenders; (3) female children are more likely to suffer physical damage during the commission of the offense than are male children; thus the class of female victims is in danger of more severe injury than their male counterparts; (4) only female victims may become pregnant; thus again the class of female victims may suffer more severe repercussions from the offense than will their male counterparts. ⁴

The state also noted in its brief that the general object of the legislation was "the protection of children from exploitation through the act of sexual intercourse." What the state has failed to indicate, however, is how these "reasons" connect the statutory classification to its specified objective. Before examining any of these justifications on the merits we must probe further to determine exactly what the state is trying to tell us as to why its law withstands constitutional scrutiny. Why, we must ask, does the difference in sex between persons who have sexual intercourse with persons under 15 "warrant the distinction" in penalties imposed by state law. See Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).

The state's first two "reasons" relate to the size of the victim and offender class. If one assumes that all else was equal, simply hinging the criminal sanction to the indeterminate differences in the size of these classes need not further the objective of protecting children from exploitation. Under a minimal rationality test the state's suggestion that there are more potential offenders in the class of males than the class of females would suffice. But under the stricter scrutiny required for classifications by gender, the state should be obliged to make some showing that by concentrating its enforcement resources on the gender class with more potential offenders and ignoring the rest of the population altogether, it is likely to achieve some greater measure of protection for its children than a gender neutral law would achieve. Similarly, the state should make some showing that by exclusively protecting a class disproportionately vulnerable to attack and offering no protection whatsoever to the other gender, it is maximizing its overall objective of protecting all children from exploitation by the means of sexual intercourse. The state has made no such showing. Indeed, its very premises are open to serious question.

The state's contention as to the limited number of potential victims in the class of males under 15 is not only unsupported by any evidence but seems inconsistent with the face of the statute. Obviously pre-pubescent boys are incapable of achieving the degree of sexual penetration normally associated with adult intercourse. However, the New Hampshire statute specifically denotes that it applies to sexual contact involving "any penetration, however slight", New Hampshire RSA 632:1, subd. II. There is no reason to believe that the degree of penetration necessary to achieve the statutory offense could not be successfully accomplished by pre-pubescent children. See generally Model Penal...