State v. Brothers

• Decision Date: 28 March 1978
• Citation: 384 A.2d 402
• Parties: The STATE of Delaware v. John T. BROTHERS, Jr., Defendant.
• Court: Delaware Superior Court

Page 402

384 A.2d 402

The STATE of Delaware v. John T. BROTHERS, Jr., Defendant.

Superior Court of Delaware, New Castle County.

Submitted March 14, 1978.

Decided March 28, 1978.

Jerome O. Herlihy, of Herlihy & Herlihy, Wilmington, for defendant.

Eugene M. Hall, Deputy Atty. Gen., Dept. of Justice, Wilmington, for the State.

CHRISTIE, Judge.

Defendant, John T. Brothers, Jr., is charged with the crime of rape second degree in violation of 11 Del.C. § 763.

The indictment reads as follows:

The Grand Jury charges JOHN T. BROTHERS, JR. with the following offense, A FELONY: RAPE SECOND DEGREE in violation of Title 11, Section 763 of the Delaware Code of 1974, as amended.

JOHN T. BROTHERS, JR., a male, on or about the 6th day of September, 1977, in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with . . . , a female, not his wife, who was less than sixteen years old and he was over four years older, without her consent.

The defendant has filed a motion to dismiss contending that the statute creates an impermissible classification based on sex in violation of the equal protection clause of the United States Constitution.

The evidence, as outlined in the briefs, is expected to indicate that John T. Brothers, Jr., age 27, had a date to take the fifteen-year old prosecutrix to the movies. The State alleges that the defendant instead took the prosecutrix to the bank of a canal where he forced her to engage in sexual intercourse.

It is provided in 11 Del.C. § 763 that "A male is guilty of rape in the second degree when he intentionally engages in sexual intercourse with a female without her consent." Another section, 11 Del.C. § 767, defines "without consent" as sexual intercourse, deviate sexual intercourse, or sexual contact when:

(1) The defendant compels the victim to submit by force or by threat of imminent death, serious physical injury, extreme pain, or kidnapping, to be inflicted upon anyone, or by any other threat which would compel a reasonable person under the circumstances to submit; or

(3) The victim is less than 16 years old.

Thus, the indictment may be read to charge that the victim was actually forced to submit or that the victim willingly engaged in sexual intercourse, but that she was legally incapable of consenting under the provisions of 11 Del.C. § 767(3) and that portion of § 763 which (through 11 Del.C. § 767(3)) makes it a crime to have sexual intercourse with a female under 16 (whether or not she was willing).

The defendant is not understood to contend that the statute, to the extent that it makes forced sexual intercourse a crime is unconstitutional. It is contended, however, that such portion of the statute which makes it illegal for a male to have sexual intercourse with a "consenting" female under 16 years old (but not for a female to have intercourse with a "consenting" male under 16 years old) amounts to an impermissible and unconstitutional classification based upon sex.

In support of his motion to dismiss, the defendant asserts that the phrase "without her consent" as used in the indictment must, of necessity, be construed as alleging only a violation of the age limitation contained in § 767(3). Since the definition of "without consent" in 11 Del.C. §§ 763, 767, includes force or threat, I see no reason to assume that the State by using "without consent" in its indictment meant to rely solely on an alleged violation of the age of consent to establish the crime.

The indictment may properly be read to charge that the defendant forcibly raped the victim. If the defendant is found guilty of this crime, there is no constitutional question about the statute. However, it is apparent that the evidence may establish a consensual sexual intercourse which would be regarded as "without consent" only because the consenting female was less than 16 years old and, therefore, incapable of legal consent. This would bring into play the provision of 11 Del.C. § 767(3). In view of this possibility, the Court will decide the constitutional issue as though rape in the second degree as defined in 11 Del.C. § 763 and § 767(3) was the only crime here charged.

Statutory classifications that distinguish between males and females are subject to scrutiny under the equal protection clause. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, reh. den., 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The degree of that scrutiny, however, has not been conclusively settled.

Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). In this analysis, the ordinary presumption of the constitutionality of the statute applies. Justice v. Gatchell, Del.Supr., 325 A.2d 97 (1974); Mayor and Council of City of Dover v. Kelley, Del.Supr., 327 A.2d 748 (1974).

The United States Supreme Court has recognized a category of "inherently suspect" classifications based upon race, alienage and national origin. This category is subject to close scrutiny and a heavy burden of justification. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Frontiero v. Richardson, supra. Placement in this category bars the application of the presumption of constitutionality and requires the showing of a compelling state interest to justify the law. M v. M, Del.Supr., 321 A.2d 115 (1974).

In the case of Frontiero v. Richardson, supra, a plurality of the Supreme Court held that sex as a basis for classification was suspect, and thus, a heavy burden of justification was placed on classifications which are based on sexual characteristics. Subsequent decisions, however, have made it clear that legislative classifications based on sex are not to be viewed as inherently suspect. Instead, gender based legislation has been subject to a "middle tier" approach, which brings the legislative classification under a closer scrutiny than the traditional rational basis test but does not require the heavy jurisdiction of the suspect classification. Craig v. Boren, supra (Justice Brennan concurring): Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880 (C.A. 3, 1976), aff'd. 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977); Davis v. Passman, 544 F.2d 865 (C.A. 5, 1977).

I am convinced that whether the statute is viewed in the light of the rational relationship test or a closer look is taken under a "middle tier" approach, the statute in question clearly passes equal protection analysis.

While the equal protection clause prohibits arbitrary distinctions, it does not require blanket uniformity or exact equality in all areas of the law. Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, reh. den., 375 U.S. 870, 84 S.Ct. 27, 11 L.Ed.2d 99 (1963). The Fourteenth Amendment does not deny a state the power to treat different classes of people in different ways as long as the classification is reasonable. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

In analyzing gender based legislation, the Supreme Court has rejected categories based on administrative convenience, Frontiero v. Richardson, supra; Reed v. Reed supra; "archaic and overbroad" generalizations, Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610, reh. den. 420 U.S. 966, 95 S.Ct. 1363, 43 L.Ed.2d 446 (1975); and outdated misconceptions concerning the role of females in the home rather than in the market place and world of ideas. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). However, where the statutory classification is not the result of overbroad generalizations but instead reasonably furthers a state policy based on a valid distinction between the sexes, it will be upheld. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

Among the reasons the State has cited in support of the statutory rape statute and its distinction between male and female, are the greater possibility of injury to a female victim, the possibility of pregnancy, and the physiological and sociological problems said to be more likely to be attendant upon a female victim than a male victim. An attempt to give extra protection to the female victim on account of these potential problems is a valid objective and the classification contained in the legislation appears to bear a fair and substantial relationship to the problems the statute is designed to meet.

It is not for the Court to decide whether this is the best possible legislation or whether the valid state interests would be better served by another form of legislation, M v. M, supra.

The legislature may reasonably have concluded that the possible harm from consensual sexual...