People v. Dozier

• Decision Date: 14 February 1980
• Citation: 72 A.D.2d 478,424 N.Y.S.2d 1010
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne DOZIER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1010

424 N.Y.S.2d 1010

72 A.D.2d 478

The PEOPLE of the State of New York, Respondent, v. Wayne DOZIER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 14, 1980.

Donald E. Gilbert, New York City, for defendant-appellant.

Vida M. Alvy, New York City, of counsel (Billie Manning, New York City, with her on the brief, Mario Merola, Dist. Atty.), for respondent.

Before MURPHY, P. J., and KUPFERMAN, BIRNS, SANDLER and SULLIVAN, JJ.

SULLIVAN, Justice.

Convicted upon his plea of guilty of rape in the third degree, in that being over the age of twenty-one years, he had sexual intercourse with a female less than seventeen years of age (Penal Law § 130.25(2)), defendant challenges New York's statutory rape law as violative of due process and equal protection. Specifically, defendant claims that the statute offends constitutional precepts because it does not permit ignorance, fraud or mistake as to the female's age to be asserted as a defense and, further, that it arbitrarily and capriciously fixes the age at which a female may consent to sexual intercourse at seventeen years. ¹

In support of his due process challenge defendant claims that complainant, before engaging in sexual relations with him, showed him an identification card which represented that she was eighteen years of age, and that had he known that she was not even seventeen he would have refrained from having intercourse with her. ²

We find that the statute serves a significant state interest in that it protects a certain class of minors from any adverse consequences of sexual intercourse, even if consensual. Following long-settled principles, we also find no constitutional prohibition against imposing criminal liability for conduct in which Mens rea is not an element of the offense.

In considering defendant's equal protection argument we take note at the outset of the test to be applied. Generally, in evaluating whether a statute violates the equal protection clause a court must apply a "rational basis" test and determine whether a classification which affects a group of citizens differently from others "rest(s) on grounds wholly irrelevant to the achievement of the State's objective." (McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393; see, also, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070; Minnesota v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744.)

Where fundamental interests are involved, however, or where the classification is deemed suspect, i. e., the statute differentiates on the basis of race, alienage or nationality, a strict scrutiny test must be applied. (See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249.) Under this test constitutionality turns on whether the law in question is "necessary to promote a compelling governmental interest." (Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600.)

In the mist of these two tests the possibility of a third has arisen in evaluating gender-based statutes:

A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." (Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.)

Subsequent to the Reed decision, however, a plurality of the Supreme Court applied the strict scrutiny test in an evaluation of a gender-based plan to provide fringe benefits to members of the uniformed services. (See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583.) Inasmuch as the Frontiero court mustered a majority for the result and not for the "strict scrutiny" test, it remains unclear that classifications based upon sex are suspect, and thus subject to strict judicial scrutiny. (See, e. g., Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397; Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 319; Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360.)

But whatever test is employed with regard to gender-based statutes, the Supreme Court has clearly demonstrated that age is not a suspect classification. Distinctions based on age, at least as they apply to the privacy rights of minors, are valid if they foster "any significant state interest . . . that is not present in the case of an adult." (Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788.) This standard is less rigorous than the "strict scrutiny" test, since "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults . . . ." (Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645.) "(T)he law has generally regarded minors as having a lesser capability for making important decisions." (Carey v. Population Services International, 431 U.S. 678, 693, fn. 15, 97 S.Ct. 2010, 2020 fn. 15, 52 L.Ed.2d 675.)

The question for resolution then is whether the prevention of sexual intercourse by unmarried females under seventeen serves a significant state interest not present when the proscribed activity is undertaken by females seventeen years of age and older. Since other sections of the Penal Law specifically protect females under fourteen, the class protected by the statute under challenge is comprised of females aged fourteen to sixteen, inclusive. ³

Challenges to statutory rape statutes have, generally, centered on distinctions based on gender. (See, e. g. Flores v. State, 69 Wis.2d 505, 230 N.W.2d 637, 638; People v. Green, 183 Colo. 25, 514 P.2d 769; People v. Mackey, 46 Cal.App.3d 755, 120 Cal.Rptr. 157; State v. Elmore, 24 Or.App. 651, 546 P.2d 1117.) The experience in New York has been no different. (See, e. g., People v. Whidden, App.Div., 423 N.Y.S.2d 512, Third Department, 1979; People v. Mndange-Pfupfu, 97 Misc.2d 496, 411 N.Y.S.2d 1000; People v. Smith, 97 Misc.2d 115, 411 N.Y.S.2d 146; People v. Prainto, 97 Misc.2d 66, 410 N.Y.S.2d 772; People v. Weidiga, 96 Misc.2d 978, 410 N.Y.S.2d 209.)

Although such challenges have, for the most part, been unsuccessful, in Meloon v. Helgemoe, D.C., 436 F.Supp. 528, aff'd. 1st Cir., 564 F.2d 602, cert. den. 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793, a United States District Court held unconstitutional a New Hampshire statute which imposed penal sanctions upon a male who had sexual intercourse with a female less than fifteen years of age. The District Court stated that "there is no valid reason for singling out the male for criminal treatment where the act is consensual." (Id. at 532.) In its affirmance the Court of Appeals discussed, in a footnote, the cases in which state courts had upheld the validity of their states' statutory rape laws. One of the decisions was State v. Drake, Iowa, 219 N.W.2d 492, which upheld an Iowa statute that punished a male over the age of twenty-five who had intercourse with a female under the age of seventeen. The Helgemoe court commented on the Drake decision as follows:

Not only does this age disparity significantly affect the purposes for which such a statute might be enacted but the high age of the potential victim lends greater credence to a pregnancy prevention rationale. (Meloon v. Helgemoe, supra at 605.)

Of course, the specific claim here is not that the New York statute discriminates on the basis of sex, Per se, but rather that it unreasonably fixes seventeen as the age below which a woman becomes a victim, regardless of her consent. ⁴ We think it significant, however, that a court which found a statutory rape statute unconstitutional on the ground of discriminatory gender classification, would comment approvingly on a decision upholding a statute proscribing the same conduct, but taking into account factors such as the victim's pregnancy potential and age disparity between the actors.

The focus of inquiry, therefore, must be directed to the nature of the state's interest, if any, in prohibiting sexual intercourse by unwed females under seventeen, and the reasonableness of age seventeen as the line of demarcation between consensual incapacity and a female's right to sexual freedom equal to that of her male consort.

Two immediate interests come to mind. First, and most obvious, is the problem of preventing pregnancy. "Along with pregnancy comes all of the attendant psychological, medical, sociological and moral problems, including questions of whether to have an abortion or to bear the child." (State v. Drake, supra, 219 N.W.2d 492, 495.) Secondly, although many females under seventeen, such as those in pre-pubescence, are physically incapable of child-bearing, younger girls, at the same time, are susceptible to physical injury resulting from sexual intercourse. The Court of Appeals for the First Circuit, which affirmed the declaration of unconstitutionality of the New Hampshire statute in Meloon (supra), recently rejected a gender-based challenge to a similar law in Maine, noting that "physical injury resulting from sexual intercourse is uniquely suffered by young females." (Rundlett v. Oliver, 607 F.2d 495, 1979.)

The state has a legitimate concern that females sixteen years and younger do not become pregnant or suffer physical injury, and as a result, find themselves facing practical problems for which their youth has not prepared them. Forced marriage, unwed motherhood, adoption, abortion, the need for medical treatment and precipitate withdrawal from school are just some of the considerations which often have to be faced, so it can be discerned that the state's concern stems from more than a dogmatic insistence on...