Tatro v. State, 50907

• Decision Date: 30 May 1979
• Docket Number: No. 50907,50907
• Citation: 372 So.2d 283
• Parties: Gary Santaw TATRO v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 283

372 So.2d 283

Gary Santaw TATRO v. STATE of Mississippi.

No. 50907.

Supreme Court of Mississippi.

May 30, 1979.

Rehearing Denied July 11, 1979.

Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, SUGG and COFER, JJ.

SMITH, Presiding Justice, for the Court:

Gary Santaw Tatro was convicted of violating Mississippi Code Annotated section 97-5-23 (1972), which is sometimes referred to as the "Fondling Statute." Following his conviction in the Circuit Court of Jackson County, Tatro was sentenced to serve eight years imprisonment. He has appealed, assigning as a ground for reversal, among others, that the statute under which he was convicted unconstitutionally discriminates against males and is void for that reason.

The statute provides:

Any male person above the age of eighteen years, who for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years, with or without his consent, shall be guilty of a high crime . . . .

The statute provides for punishment extending to ten years imprisonment.

The statute applies not to "any" person, but only to "any Male person" above eighteen years. It proscribes "handling, touching or rubbing with hands or any part of the body or member thereof any child (without regard to sex) under the age of fourteen years, (with or without the child's consent) when done for the purpose of gratification of lust, or of indulging depraved licentious sexual desires.

The offense proscribed is not a common law offense. Love v. State, 211 Miss. 606, 52 So.2d 470 (1951).

In the recent case of Orr v. Orr, --- U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), a civil case, the United States Supreme Court, on finding an Alabama alimony statute unconstitutionally discriminated against men, observed:

. . . The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). "To withstand scrutiny" under the equal protection clause, " 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' " Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). . . .

The Court also said:

Second, the challenged statute may saddle members of one sex with a burden not borne by similarly situated members of the other sex. Standing to attack such a statute lies in those who labor under its burden. . . .

Unquestionably women are as capable of performing the physical acts prohibited by the Mississippi "Fondling Statute" as are men, and for the same purposes. We are unable to conceive any sound or rational basis for making the statute applicable to "male" persons only, while wholly excluding "female" persons who may do the same thing for the same reasons, and none has been pointed out to us. Apparently, under the plain terms of the statute, female persons could commit the acts constituting the crime, for the purposes set forth in the statute, with absolute impunity, while a male, who did the same thing, would be subject to conviction of a felony and to imprisonment for a term of as much as ten years.

It is suggested that the reasons upon which the Court upheld the "Peeping Tom" statute in Green v. State, 270 So.2d 695 (1972), support the validity of the statute now under consideration. We are unable to agree.

No cogent reason is assigned for the patent discrimination against males, nor is it pointed out that such unequal treatment serves any traditional, governmental or public policy or is based upon a rational distinction based upon sex.

While no testimony seems to be necessary, Dr. Bridges, whose qualifications as an expert were stipulated, testified in this case that "from a psychological standpoint it is my opinion that a woman could be just as guilty of this offense as a man."

An Oklahoma statute was held to have resulted in an unconstitutional denial of equal protection of law when it provided that seventeen year old male criminal defendants were to be prosecuted and sentenced as adults, whereas female defendants of like age were to be accorded the advantages of juvenile proceedings. Radcliff v. Anderson, 509 F.2d 1093 (1974) certiorari denied 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975).

In People v. Yocum, 31 Ill.App.3d 586, 335 N.E.2d 183 (1975), it was held that a sex-based distinction in criminal statutes is a "suspect classification" under the Bill of Rights and must be able to withstand strict judicial scrutiny to be valid. The Court held that inasmuch as sexual intercourse or act of deviate sexual conduct performed by a mother with an adopted son or stepson is not prohibited, but such acts are prohibited by the statute when performed between a father and his stepdaughter or adopted daughter under the age of eighteen, conviction of the defendant of aggravated incest because of conduct occurring between him and his adopted daughter must be reversed because of an unconstitutional discrimination.

In Commonwealth v. MacKenzie, 368 Mass. 613, 334 N.E.2d 613 (1975) the Massachusetts Court held that imposition of a criminal sentence upon the father alone under a statute providing that whoever, not being the husband of the woman, gets her with child, would be guilty of a misdemeanor for the getting of the child, violated equal protection clauses of the Constitution.

Under the "Fondling Statute" if the child is under fourteen years old, the crime may be committed upon it regardless of the child's sex and whether it consents or does not consent.

An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. . . . (Fay v. Noia, 372 U.S. 391, 408, 83 S.Ct. 822, 832, 9 L.Ed.2d 837, 850-851) (1963).

The legislative intent to confine application of the statute to male persons, not simply to "any" person as in most criminal statutes, manifests an intentional exclusion of females. The word "male" in the statute cannot be ignored without destroying the clear legislative intention to limit application of the statute to males. It may not be struck out without judicially creating a crime, without legislative sanction, under which females could be convicted and sentenced. This Court may not create a crime by construction.

Designed to protect children from becoming the objects of erotic behavior on the part of adults, the purpose of the statute is salutary. It appeared as section 1142(c) of the 1921 Supplement to Hemmingway's Code, at a time when sex was regarded as a personal and private matter between consenting adults. The exclusion of females was due, perhaps, to some vestigial chivalric notion that women were incapable of the acts proscribed. Today, we have witnessed in the streets of our cities the parading about of persons, women as well as men, publicly proclaiming themselves to be sex deviates and demanding "rights" as such. The stage and screen appear to have become obsessed with the portrayal of explicit sex. Pornography has become an ill of our times. We learn from the news media of the use of children by adults for the purpose of prostitution, by men as well as by women, and sometimes by their own parents. Limiting application of the statute to men can be no longer be said to be realistic, if it ever was. It is the Legislature's prerogative to correct the defect in the statute and the matter is commended to that body for its consideration.

We have concluded that the statute is clearly discriminatory and unconstitutionally denies equal protection of the law to males and is, therefore, void.

For the reasons stated the appellant's conviction is reversed and he is discharged.

REVERSED AND APPELLANT DISCHARGED.

THIS CASE WAS CONSIDERED BY A CONFERENCE OF THE JUDGES EN BANC.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM and COFER, JJ., concur.

SUGG, LEE and BOWLING, JJ., dissent.

SUGG, Justice, dissenting:

I dissent because we may strike the word "male" from the statute ¹ thereby removing the gender based distinction prohibited by the Fourteenth Amendment to the United States Constitution. We may strike the word "male" under the well established rule that: it is the Court's duty in passing on the constitutionality of a statute, to separate the valid from the invalid part if this can be done, and to permit the valid part to stand unless the different parts of the statutes are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole; and that if all cannot be carried into effect, the legislature would have enacted the valid part independently. Lovorn v. Hathorn, 365 So.2d 947 (Miss.1979); O'Neal v. Simpson, 350 So.2d 998 (Miss.1977); Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977); Howell v. State, 300 So.2d 774 (Miss.1974); American Express Co. v. Beer, 107 Miss. 528, 65 So. 575 (1914); Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910); Campbell v. Mississippi Union Bank, 7 Miss. 625 (1842).

In O'Neal, supra, we held that, where part of a statute is valid and another part invalid, the presumption arises that the legislature intended to enact the valid part if it is separate and distinct from the invalid part and is not dependent on the invalid part. The valid part of the statute under consideration does not depend on the word "male" and is separable from the invalid part. A reading of the statute demonstrates this.

After striking the word "male" from the statute, the masculine pronoun "his" would remain in the statute in...