State v. Barlow

Decision Date13 August 1993
Docket NumberNo. 91-454,91-454
CourtVermont Supreme Court
PartiesSTATE of Vermont v. William BARLOW, Jr.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Charles Martin of Martin & Paolini, Barre, for defendant-appellant.


GIBSON, Justice.

Defendant entered a conditional plea of guilty to sexual assault on a minor, commonly known as statutory rape, in violation of 13 V.S.A. § 3252(3) (now 13 V.S.A. § 3252(a)(3)). He appeals on grounds that the statute violates a substantive due process right to privacy under the Vermont Constitution and the right to equal protection under the United States Constitution. We affirm.

Defendant argues that privacy in sexual matters is a natural or fundamental right "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), and that this right should be recognized under the Vermont Constitution. He contends that by limiting criminalization to a sexual act with a "person under the age of 16, except where the persons are married to each other and the sexual act is consensual," 13 V.S.A. § 3252(a)(3), the Legislature recognized that this right extends to persons under the age of sixteen. He also maintains that the statute in effect compels marriage with a would-be sexual partner under the age of sixteen, and that this amounts to a violation of due process because the decision to marry or not to marry is a fundamental right, which cannot be infringed by the state. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967). Defendant further contends that the statute violates equal protection guarantees by treating married and unmarried minors differently with respect to sexual intercourse.

We do not decide whether to recognize a right to privacy in sexual matters under the Vermont Constitution or whether this right extends to minors because, in any event, we conclude that the state has a compelling interest in protecting minors that is served by the statute at issue. Cf. Jones v. State, 619 So.2d 418, 422 (Fla.Dist.Ct.App.1993) (recognizing a fundamental right to privacy for minors but concluding that compelling state interest outweighs the limited burden of waiting until age of majority). The trial court noted that the state has long recognized an obligation to protect its children from others and from themselves. It found that the statutory rape law has many "salutary purposes," citing with approval State v. Munz, 355 N.W.2d 576, 585 (Iowa 1984), which listed the dangers of pregnancy, venereal disease, damage to reproductive organs, the lack of considered consent, heightened vulnerability to physical and psychological harm, and the lack of mature judgment, among the many significant interests of the state. Further, the United States Supreme Court has itself observed that "teenage pregnancies ... have significant social, medical, and economic consequences for both the mother and her child, and the State." Michael M. v. Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1205, 67 L.Ed.2d 437 (1981).

The Supreme Court has also "recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults....' " Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968) (quoting Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944)). Similarly, this Court has noted that:

Vermont law reflects our enhanced concern for the protection and well-being of minors and the gravity we attach to crimes involving the exploitation of minors. See, e.g., 13 V.S.A. § 1304 (cruelty to children under ten by one over sixteen); 33 V.S.A. §§ 4911-4920 (reporting abuse of children); 13 V.S.A. § 2804b (displaying obscene materials to minors); 13 V.S.A. §§ 2821-2826 (sexual exploitation of children).

State v. Searles, 159 Vt. 525, ----, 621 A.2d 1281, 1283 (1993). Thus, our law is well-settled that the state has a compelling interest in protecting the well-being of minors. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) (recognizing state's compelling interest in "safeguarding the physical and psychological well-being of a minor"). We agree with the Florida court that any infringement on the minor's privacy interest under the state constitution is limited in duration and is outweighed by a compelling state interest.

Defendant's equal protection claim focuses on the state's different treatment of an adult who has sex with a minor spouse and an adult who has sex with an unmarried minor. The equal protection clause of the United States Constitution requires that all persons " 'shall be treated alike under like circumstances and conditions [,] both in the privileges conferred and in the liabilities imposed.' " State v. Reynolds, 109 Vt. 308, 312, 1 A.2d 730, 732 (1938) (emphasis in original) (quoting Marchant v. Pennsylvania R.R., 153 U.S. 380, 390, 14 S.Ct. 894, 897, 38 L.Ed. 751 (1894)). Because of the requirements a minor must complete prior to marriage, we hold that the two adults described...

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7 cases
  • In re GT
    • United States
    • Vermont Supreme Court
    • 19 Mayo 2000
    ...1281, 1283 (1993), for which the only elements are the age of the "victim" and the presence of a sexual act. See State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). Thus, under the State's theory, both G.T. and M.N. have necessarily committed the crime, and all consensual sexual ......
  • Owens v. State
    • United States
    • Maryland Court of Appeals
    • 12 Febrero 1999
    ...withstood constitutional challenges despite their greater potential to affect noncriminal sexual conduct. See, e.g., State v. Barlow, 160 Vt. 527, 630 A.2d 1299 (Vt.1993)(under age 16); Campbell, 239 Neb. 14, 473 N.W.2d 420 (under age 16); Brooks, 841 F.2d 268 (under age 16); Miller, 385 Ma......
  • Northern Sec. Ins. Co. v. Perron
    • United States
    • Vermont Supreme Court
    • 4 Mayo 2001
    ...age of sixteen guilty of sexual assault); id. §§ 2822-2823 (proscribing use of child in sexual performance). In State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993), a case that presented a challenge to 13 V.S.A. § 3252, we noted that, underlying criminal statutes that serve to pro......
  • State v. Hazelton
    • United States
    • Vermont Supreme Court
    • 22 Noviembre 2006
    ...more than a calendar and the person's birth certificate are required to determine the statute's applicability." State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). ¶ 26. While differences between the two crimes may be apparent, they are not real.2 Despite the language in § 3252(a......
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1 books & journal articles
  • Statutory rape law and enforcement in the wake of welfare reform.
    • United States
    • Stanford Law Review Vol. 52 No. 2, January 2000
    • 1 Enero 2000 abusive exercise of prosecutorial discretion or discriminatory enforcement practices than any other crime. See State v. Barlow, 630 A.2d 1299 (Vt. 1993). In fact, the court reasoned, statutory rape may be even less susceptible to such practices because of the clear-cut nature of the viol......

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