People v. Smith

• Decision Date: 21 November 1978
• Citation: 97 Misc.2d 115,411 N.Y.S.2d 146
• Parties: The PEOPLE of the State of New York v. Cornelius SMITH, Defendant.
• Court: New York County Court

Page 146

411 N.Y.S.2d 146

97 Misc.2d 115

The PEOPLE of the State of New York v. Cornelius SMITH, Defendant.

Albany County Court.

Nov. 21, 1978.

Sol Greenberg, Dist. Atty., Colin J. Kenneally, Asst. Dist. Atty., of counsel, Louis J. Lefkowitz, Atty. Gen., Stephen Boiko, Asst. Atty. Gen., of counsel, for the People.

Douglas P. Rutnik, Public Defender, Terence L. Kindlon, Asst. Public Defender, of counsel, for defendant.

JOSEPH HARRIS, Judge.

Defendant is charged with the crime of rape in the third degree in violation of Penal Law Section 130.25 subd. 1. Defendant moves to dismiss the indictment against him on the ground that said section violates his right to equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution and Section 11 of Article 1 of the Constitution of the State of New York.

Penal Law Section 130.25 subd. 1 states:

"A Male is guilty of rape in the third degree when: 1) He engages in sexual intercourse with a Female who is incapable of consent by reason of some factor other then being less then seventeen years old." (emphasis added).

Defendant contends that this section creates a constitutionally impermissible classification based on sex. He argues that since only males are subject to criminal liability under the section and only women are protected thereunder the statute constitutes an arbitrary discrimination based solely upon sex.

New York State's rape statutes in general, and this specific one in particular, are based not on sex but on physiology. They are substantially related to and reasonably tend to further important and legitimate state interests. The failure directly to include potential female violators within their confines does not violate a fundamental interest of men. ¹ The classification making males susceptible to the proscriptions of these statutes but not females, was in no way intended to be, and is not in actual practice, invidious or unreasonably discriminatory. Accordingly they do not violate the mandate guaranteeing equal protection of the laws and are not unconstitutional.

Initially, it must be observed that a strong presumption of validity attaches to statutes and the burden of proving invalidity rests upon those who challenge their constitutionality to establish this beyond a reasonable doubt. People v. Scott, 26 N.Y.2d 286, 309 N.Y.S.2d 919, 258 N.E.2d 206; Matter of VanBerkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539. There is a further presumption that the Legislature has investigated and found the facts necessary to support the legislation. I. L. F. Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 219 N.Y.S.2d 249, 176 N.E.2d 822; People v. Scatena, 63 A.D.2d 687, 404 N.Y.S.2d 655; People v. McNair, 46 A.D.2d 476, 363 N.Y.S.2d 151. As long as the Federal and State Constitutions are not violated, this Court may not substitute its judgment of the wisdom, need or appropriateness of the statute in question for that of our duly elected Legislature. See, Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 132 N.E.2d 829.

In the only reported cases in New York addressing the constitutionality of a rape statute, courts have held constitutional Penal Law Section 130.35 subd. 1, the "forcible compulsion" section of the rape statutory scheme. People v. Wheeler, 50 A.D.2d 1089, 377 N.Y.S.2d 329 (4th Dept. 1975); People v. Reilly, 85 Misc.2d 702, 381 N.Y.S.2d 732 (County Court, Westchester County 1976). The defendant argues that any rationale reflecting a greater need to protect women from forcible rape does not apply in the narrower case where lack of consent is based upon mental incapacity, as in the instant case that in such cases there is as much reason to protect mentally incapacitated men as there is to protect mentally incapacitated women.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Essentially similar is the language of Article 1, Section 11 of the New York Constitution which states that "No person shall be denied the equal protection of the laws of this state or any subdivision thereof." The breadth of coverage afforded by the two constitutions is equal. Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, cert. den. 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385; 9 N.Y.Jur. Constitutional Law, Section 287.

The principle of equal protection does not lend itself to hard and fast rules because of the variety of subjects and situations to which it applies. Equal protection of the law does not prohibit the State from treating different classes of persons in different ways. Statutory classification for purposes of according different treatment, however, must always rest on a difference which bears a fair, substantial, natural, reasonable and just relation to the object, act, or purpose of the statute in order that all persons who are similarly situated are treated in the same way. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Matter of Patricia A., 31 N.Y.2d 83, 88, 335 N.Y.S.2d 33, 36, 286 N.E.2d 432, 434; People v. Ditniak, 28 N.Y.2d 74, 78, 320 N.Y.S.2d 25, 27, 268 N.E.2d 768, 769; 9 N.Y.Jur. Constitutional Law, Section 300.

The appropriate standard for judicial review in equal protection analysis depends upon the nature of the classification involved and the character of the rights asserted. Under "traditional" equal protection analysis, a legislative classification will be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 36 L.Ed.2d 583. This analysis recognizes that a state has vast discretion in developing classifications and categories in the exercise of its police powers. In this regard, the Supreme Court has often stated "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 be applied." Minnesota v. Probate Court, 309 U.S. 270, 274-75, 60 S.Ct. 523, 84 L.Ed. 744; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S.Ct. 578, 81 L.Ed. 703; Semler v. Dental Examiners, 294 U.S. 608, 610, 611, 55 S.Ct. 570, 79 L.Ed. 1086.

The rational basis test described above is not appropriate for the constitutional evaluation of all statutory classifications. Where a statute affects a "fundamental interest" or employs a "suspect" classification, the "strict scrutiny" test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 332, 384 N.Y.S.2d 82, 87, 348 N.E.2d 537, 542. Suspect classifications include race (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010), national origin (Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866), and alienage (Matter of Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910). Fundamental interests include, Inter alia, voting (Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274), travel (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600), and procreation (Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655).

The appropriate standard with respect to classifications based upon sex is not free from doubt. In Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583, a plurality of the United States Supreme Court, but not a majority thereof, were of the view that classifications based upon sex, like classifications based upon race or national origin, are inherently suspect and must, therefore, be subjected to close judicial scrutiny. Subsequent cases, however, have made clear that legislative classifications based on sex are not viewed as inherently suspect. In the recent case of Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, a majority opinion evaluated a gender based state statute 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. The Supreme Court struck down under this standard an Oklahoma statute which prohibited the sale of 3.2% beer to males under the age of 21 while permitting such sales to females between 18 and 20 years of age. Although separate concurrences by Justice Powell and Justice Stevens make unclear whether this "middle tier" standard has majority support, it should apply to this case as the most recent Supreme Court pronouncement of the appropriate standard in gender classification cases in a criminal context. This standard is hardly precise but it is clear that it requires to some indeterminate extent more of a connection between the classification and the governmental objective than that of the minimum rationality standard. Meloon v. Helgemoe, 1 Cir., 564 F.2d 602, 604.

The defendant contends that the object of Penal Law Section 130.25 subd. 1 is to protect persons incapable of consent by reason of some mental disease or defect from exploitation through the act of sexual intercourse. Defendant argues that the statute is not substantially related to the achievement of this objective for three reasons: (1) Females are given the protection but males are not; ² (2) Females are as capable as men of having sexual intercourse with a mentally incapacitated member of the opposite sex, yet they are not prohibited from so doing; (3) There is not, demonstrably, a greater number of potential male offenders than female offenders.

The defendant errs in his view of the purpose of the statute involved. The statute is not intended as a general statute to protect all...