P., In re

• Decision Date: 05 December 1977
• Parties: In re P., * a person alleged to be a juvenile delinquent. Family Court, New York County
• Court: New York Family Court

Page 455

400 N.Y.S.2d 455

92 Misc.2d 62

In re P., ^* a person alleged to be a juvenile

delinquent.

Family Court, New York County.

Dec. 5, 1977.

W. Bernard Richland, Corp. Counsel, by Sydney A. Mayers, Asst. Corp. Counsel, New York City, In Support of the Petition.

Charles Schinitsky, for respondent; Janet Fink, of counsel, Legal Aid Society, New York City.

OPINION

MARGARET TAYLOR, Judge.

Respondent P. is a 14 year old female. She is before this court on the complaint of D.

The petition alleges, inter alia, ¹ that "Respondent did offer to perform a deviate sexual act for U.S. currency", an act which, if committed by an adult, would constitute the crime of prostitution, Penal Law Section 230.00, a class B misdemeanor.

Paragraph Ten of the Bill of Particulars of the Corporation Counsel describes the incident as follows:

"On March 6, 1977, at about 8:30 P.M., respondent accosted complaining witness on the street and offered to engage in sexual acts with him for a fee of $10; he agreed and respondent took him to the Evans Hotel, 273 West 38 Street, New York City. Complaining witness paid $4 for the use of a room and went there with respondent."

It should be noted that the complaining witness was not charged with the violation of patronizing a prostitute, P.L. § 230.05. ² Nor was he charged with any other crime applicable to these facts. ³

Section 230.00 of the Penal Law reads A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

A deviate sexual act is defined by Section 130.00(2) of the Penal Law as:

"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

Deviate sexual intercourse, also a Class B misdemeanor, is made a crime under Section 130.38 of the Penal Law:

Consensual Sodomy: A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.

Under the Family Court Act, the court can find that a respondent is a juvenile delinquent only if (a) the court finds beyond a reasonable doubt (F.C.A. § 744(b)) that "the respondent did any act which, if done by an adult, would constitute a crime" (F.C.A. §§ 731(1)(a); 752) and (b) "the respondent requires supervision, treatment, or confinement". (F.C.A. §§ 731(1)(c); 752). Both of these findings are jurisdictional and, therefore, a failure to find both elements requires dismissal of a juvenile delinquent petition. F.C.A. § 751.

The threshold question in all juvenile delinquency proceedings is, therefore, not whether a respondent committed a particular act but whether such an act would be a crime if committed by an adult. If not, then the court can go no further and must dismiss the petition. Accordingly, if acts committed by an adult would not constitute a crime because the criminal statute or statutes making such alleged acts a crime were unconstitutional, such acts could not be the basis for a charge of juvenile delinquency. A youth under the age of 16 may be found to be a juvenile delinquent only if an adult who engaged in the same conduct as the youth could be found to have committed a crime. If a statute is unconstitutional as applied to adults, a statute is unconstitutional as applied to juveniles. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1966).

Inasmuch as the petition alleges that the respondent offered to perform an act of consensual sodomy for a fee, the charges brought against respondent necessarily invoke the prostitution statute (P.L. § 230.00) and the consensual sodomy law (P.L. §§ 130.38; 130.00(2)). Respondent is specifically charged with offering to perform a "deviate" sexual act for a fee. If she had been charged with offering to perform a "normal" sexual act (i. e. fornication) for a fee, it would have been necessary for the court to deal with the question of whether a crime can be committed by offering to perform a sexual act, which in and of itself is not illegal, for money. ⁴ Here, however, respondent is charged with offering to perform an act which in and of itself is proscribed by a criminal statute, the consensual sodomy law (P.L. §§ 130.38; 130.00(2)). It is necessary, therefore, for the court to examine those sections of the Penal Law and make a determination as to their constitutionality.

Respondent, by her attorney, has moved to dismiss the prostitution charge on constitutional and other grounds. ⁵ For the reasons stated below, the court holds that sections 230.00, 130.38 and 130.00(2) of the Penal Law are unconstitutional under the New York State Constitution in that these statutes constitute a denial of equal protection and invade respondent's constitutionally protected right of privacy.

Article I, Section 11 of the New York State Constitution guarantees that:

No person shall be denied the equal protection of the laws of this State or any subdivision thereof.

This provision provides at least as broad protection as its federal counterpart. Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 544, 87 N.E.2d 541, 556 (1949) (J. Fuld dissenting); Town of Greenburgh v. Board of Supervisors of Westchester County, 53 Misc.2d 88, 277 N.Y.S.2d 885 (Sup.Ct., West.Cty.1967); People v. Reilly, 85 Misc.2d 702, 381 N.Y.S.2d 732 (West.Cty.Ct.1976). See 2 Rev. Record of New York State Constitutional Convention at 1965 (1938).

The equal protection clause is offended when the state discriminates between classes of citizens similarly situated on arbitrary and unreasonable grounds not related to the objective of the legislation. In re Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432 (1972).

The selective enforcement of a law against a particular class of individuals on the basis of sex is no less offensive to the equal protection clause of the New York State Constitution than classification by sex on the face of the statute. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 200 N.E.2d 779 (1964); People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128 (4th Dept. 1962).

Sex is a suspect classification in New York State. Application of Ogilvie, 83 Misc.2d 896, 373 N.Y.S.2d 281 (1975); People v. Moss, 80 Misc.2d 633, 366 N.Y.S.2d 522 (1975); People v. Overton, 88 Misc.2d 531, 389 N.Y.S.2d 253 (1976). See In re Adoption of Malpica-Orsini, 36 N.Y.2d 568 at 591, 370 N.Y.S.2d 511, at 533, 331 N.E.2d 486 at 502; Matter of Sontag v. Bronstein, 33 N.Y.2d 197, 201 n. 2, 351 N.Y.S.2d 389, 392, 306 N.E.2d 405, 405 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (Justices Brennan, Douglas, White and Marshall). Thus, sections 230.00 and 230.05 as applied are subject to strict scrutiny.

However, as the Court of Appeals notes,

The inflexibility of the traditional equal protection approaches is readily apparent for each is polarized and outcome determinative. Modern day theorists . . . have detected a departure from traditional approaches in recent precedent and argue, convincingly, we think, that a middle level of review presently exists. Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 333, 384 N.Y.S.2d 82, 88, 348 N.E.2d 537, 544 (1976).

The middle level of review adopted in Alevy requires that a court examine such factors as the classification involved, the constitutional and societal importance of the interests adversely affected and the relative invidiousness of the basis upon which the classification is drawn. This court has no interest in adopting an outcome determinative test when it is faced with these controversial challenges to the prostitution and consensual sodomy laws. Thus, all the forementioned facts will be considered when examining the constitutional challenges raised.

Until 1964, a prostitute was defined as a "female person". See Roby, Politcs and Criminal Law: Revision of the New York State Criminal Law on Prostitution, 17 J.Soc. Problems No. 1, p. 83 (1972). The legislature amended the penal law to make the prostitution statute sex neutral in its wording and it enacted a statute proscribing the act of patronizing a prostitute. P.L. § 230.05 (enacted L.1965, c. 1030, eff. Sept. 1, 1967). Although the prostitution laws were made facially sex neutral, their historical sex bias has endured.

Prostitution is a Class B misdemeanor, carrying a penalty of up to ninety days imprisonment. A person may be found guilty of prostitution for simply "agreeing" to perform a sexual act, even if the patron is the solicitor. In contrast, patronizing a prostitute is merely a violation carrying a penalty of up to fifteen days imprisonment or up to $250 fine. P.L. § 230.05. The conduct engaged in by the prostitute and the patron is nearly identical and the wording of the respective statutes is quite similar.

The instant case presents clear evidence of intentional selective enforcement of the prostitution statutes against females. ⁶ The overwhelming majority of arrests made under section 230.00 of the Penal Law are of female prostitutes. During the first six months of 1977, 3219 arrests were made in New York County under this statute. Of those arrested, 2,944 were females and only 275 were males. ⁷ Of equal importance is the fact that although 3219 arrests were made for prostitution, only 62 persons were charged with patronizing a prostitute. Of the 2,944 female prostitutes arrested, only 60 of their male patrons were charged with a violation. ⁸ This data supports the conclusion that those assigned the task of enforcing the law harbor the attitude that women who supply sex are immoral whereas the men who demand their services are considered blameless. See The Politics of Prostitution, supra at 6.

The methods of enforcement used by the police contribute to the selective enforcement of the prostitution laws against females. Arrests for...