People v. McKellar

• Decision Date: 26 May 1978
• Docket Number: Cr. 30376
• Citation: 146 Cal.Rptr. 327,81 Cal.App.3d 367
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Tillmon McKELLAR, Defendant and Appellant.

Page 327

146 Cal.Rptr. 327

81 Cal.App.3d 367

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Tillmon McKELLAR, Defendant and Appellant.

Cr. 30376.

Court of Appeal, Second District, Division 5, California.

May 26, 1978.

Hearing Granted July 20, 1978.

Leon Letwin and Richard A. Wasserstrom, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Chief Asst. Atty. Gen., Juliet H. Swoboda, and Sandy R. Kriegler, Deputy Attys. Gen., for plaintiff and respondent.

HASTINGS, Associate Justice.

This is a challenge to the constitutionality of Penal Code section 261.5. The section provides: "Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Although the statute has been held constitutionally valid (People v. Mackey, 46 Cal.App.3d 755, 120 Cal.Rptr. 157), appellant argues that recent decisions ¹ require us, in examining sex classification statutes, to use the constitutional test of strict judicial scrutiny rather than the rational basis test. For this reason we have not relied solely on Mackey, which does not address this issue, and have instead chosen to answer the challenge on its merits.

Appellant was charged with four counts of unlawful sexual intercourse (Pen.Code, § 261.5) and three counts of oral copulation (Pen.Code, § 288a) with a girl 16 years of age. For the purpose of establishing the constitutional issue raised on appeal both parties stipulated that they consented to the sexual activities. Pursuant to a plea bargain, appellant pleaded guilty to one count of a misdemeanor violation of Penal Code section 261.5, and a certificate of probable cause for appeal was issued by the trial court so that the constitutional issue could be pursued.

Appellant has conceded that the state has a compelling interest in preventing and punishing all cases of sexual intercourse with victims who are minors when there is not free, full and genuine consent. However, he argues in various ways that changing social mores have made consensual sexual intercourse so acceptable, as between mature partners, that it is a fundamental right to engage in the act in private; therefore, the validity of the law can only be determined by applying the "strict scrutiny" test of constitutional law. In brief, he claims the statute cannot meet this standard of review and that it violates due process and equal protection requirements because it (1) creates an unreasonable conclusive presumption as to the absence of consent; ² (2) violates his right to liberty without compelling justification; (3) distinguishes in an impermissible way between mature minors and adults; and (4) unconstitutionally distinguishes between males and females for the purpose of making certain behavior criminal.

It is true that some broad language in numerous cases has decreed that statutory classifications based on sex are suspect, thereby subjecting the classification to strict judicial scrutiny. A review of these cases discloses, however, that they deal with classifications where the physical differences between the genders are not of paramount importance. Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, involved discrimination between male and female bartenders; in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, male probate administrators were given preference over females; in Craig v. Boren, supra, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, females age 18 could purchase beer while males could not until they were 21; and in Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, the court suggests that married and unmarried adults have a constitutional right to engage in sexual intercourse in private. None dealt with la difference per se.

In the recent case of Meloon v. Helgemoe, supra, 564 F.2d 602, ³ the court, in considering a New Hampshire statutory rape law, adopts a middle ground suggested in Reed and Craig, supra. These cases appear to favor, in certain situations, a departure from the "two-tier" approach (strict scrutiny or rational basis) to an in-between concept. The standard stated is: "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, (citations)." (Meloon, supra, at p. 604.) ⁴

The great majority of cases in all jurisdictions recognize that there is no constitutional issue when the classification in question is based on physical characteristics between the sexes rather than psychological, social, etc. In such cases the sexes are not similarly situated and equal protection is not required. (People v. Salinas (Colo.1976) 551 P.2d 703.)

Jurisdictions that recognize this principle use the rational basis test for judicial review of the statute. This traditional test, simply stated, is that the "distinction drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.' " ⁵ (In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 261, 473 P.2d 999, 1005.) The states applying this test to unlawful intercourse (statutory rape) are principally concerned with preventing pregnancy in minor females. The reasoning in support of these laws is cogently articulated in In re Interest of J.D.G. (Mo.1973) 498 S.W.2d 786, a case also dealing with the same consensual intercourse argument that is urged here. The court states at page 792: "Age is a legitimate legislative consideration when the evil sought to be prevented is directly related to knowledge of the consequences of the prohibited act by the party who will be seriously damaged by the act and where, in the very nature of things, one of the participants cannot suffer as serious and substantial adverse consequences as the other. (P) The example that obviously comes to mind is that the female can become pregnant but the male cannot. 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. While other adverse effects on the female could be set forth as well as the problems of the bastard child, it is obvious to all that there are virtually no adverse consequences to the male but the effect upon the female can be disastrous. (P) The selection of the female age factor in a statutory rape statute is basically a legislative function. The court holds that the female age factor contained in (the statute) is directly and reasonably related to the evil sought to be prevented and does not violate the Equal Protection Clause of the Missouri or United States Constitutions." (Italics added.) And in State v. Drake, supra, 219 N.W.2d 492, 496, the court noted: "sex is the only possible classification if the purposes of the statute are to be realized. Once we accept the principle that the purpose of the statute to protect certain young females from sexual intercourse is a proper subject of state interest, it inevitably follows that the curbs adopted to accomplish that purpose can only be imposed against males because they are the only persons who may inflict the injury which the law seeks to avoid." (Italics in original.)

In this state, in People v. Mackey, supra, 46 Cal.App.3d 755, 120 Cal.Rptr. 157, the court said (pages 760-761, 120 Cal.Rptr. page 160): "In the case at bench the girl had recently completed her 14th year; defendant had recently completed his 17th year. It would be unrealistic to base a conclusion as to the reasonableness of the statute's classification of the protected class upon a belief that girls of the age of the victim in this case are no more likely than boys of the same age to be the objects of the desires and designs of older people of the opposite sex who are on the prowl. (P) We hold that the statute is not unconstitutional in extending its protection only to female persons under the age of 18."

One final statement on this issue is compelling. I...