U.S. v. Hicks

• Decision Date: 16 April 1980
• Docket Number: No. 78-2534,78-2534
• Citation: 625 F.2d 216
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. McDonald HICKS, Eli Davis, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 216

625 F.2d 216

UNITED STATES of America, Plaintiff-Appellant, v. McDonald HICKS, Eli Davis, Jr., Defendants-Appellees.

No. 78-2534.

United States Court of Appeals,

Ninth Circuit.

April 16, 1980.

Rehearing Denied Aug. 15, 1980.

Dale Danneman, Asst. U. S. Atty., Phoenix, Ariz., argued, for plaintiff-appellant; William F. Woods, Asst. U. S. Atty., Phoenix, Ariz., on brief.

J. Douglas McVay, David M. Ochoa, Asst. Federal Public Defender, Phoenix, Ariz., for defendants-appellees.

OPINION

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and TANG, Circuit Judges, and WHELAN, ^* District Judge.

WALLACE, Circuit Judge:

The government appeals the dismissal of an indictment against Hicks and Davis alleging against Davis two counts and against Hicks one count of carnal knowledge of a female Indian under 16 years of age in violation of 18 U.S.C. § 1153 and § 2032. ¹ In response to arguments that the statutes' classification on the basis of gender denies equal protection under the law, the district judge dismissed the indictment. We affirm.

I

We first determine the proper standard of scrutiny to be applied in assessing the constitutionality of the statutes in question. The government does not dispute that the statutes classify on the basis of gender. Hicks and Davis argued before the district judge that only males can be perpetrators, and only females victims, of the crime of carnal knowledge. The statutes assign the roles of victim and criminal on the basis of gender. Had Hicks and Davis been female, they would not have been charged, ² and the statute thus discriminates against males.

Because federal statutes are before us, we examine the constitutionality of the dissimilar treatment they impose pursuant to the Fifth Amendment. "(T)he Due Process Clause of the Fifth Amendment forbids the Federal Government from denying equal protection of the laws." Vance v. Bradley, 440 U.S. 93, 94 n.1, 99 S.Ct. 939, 942 n.1, 59 L.Ed.2d 171 (1979); see Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 1228 n.2, 43 L.Ed.2d 514 (1975). Accordingly, we employ the standard of equal protection the Supreme Court has developed for the scrutiny of gender classifications.

In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Court considered the constitutionality of Oklahoma statutes prohibiting the sale of 3.2 percent beer to males under 21 and to females under 18. There the Court stated that "(t)o withstand constitutional challenge, . . . 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 Court has continued to hold this standard applicable to gender classifications. E. g., Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 316-17, 97 S.Ct. 1192, 1194-95, 51 L.Ed.2d 360 (1977) (per curiam); accord, Blake v. City of Los Angeles, 595 F.2d 1367, 1384 (9th Cir. 1979). We must, therefore, apply that standard.

II

At the hearing on the motion to dismiss, Hicks and Davis offered expert testimony and exhibits to demonstrate the unconstitutionality of section 2032. The court rejected these offers of proof. The government then argued that the statutes before us have two purposes: the prevention of unwanted pregnancy and the prevention of physical injury to young females. ³ It offered no evidence. The district judge stated that the statutes "(m)ay or may not have to do with pregnancy," and, relying in part on Craig, dismissed the indictments. On appeal, the government's central argument is that Hicks and Davis had the burden of going forward in this case and, therefore, that it first fell to them to show that the statutes did not satisfy the Craig standard. We disagree.

In Berkelman v. San Francisco Unified School Dist., 501 F.2d 1264 (9th Cir. 1974), we relied on Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and on the plurality and concurring opinions in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), in stating that the standard of review applicable to classifications based on sex "(requires) the government (state or federal) to produce evidence that the challenged classification furthers the central purpose of the classifier." Id. at 1269. We invalidated the school district's gender-based admissions standards in part because the district offered "(n)o actual proof that a balance of the sexes furthers the goal of better academic education." Id. Craig, and a more recent case, Caban v. Mohammed, supra, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, demonstrate that our allocation of the burdens of producing evidence and persuasion in Berkelman remains applicable to the case before us.

In Craig, the Court characterized the State's statistical evidence as demonstrating an "unduly tenuous 'fit' " between the gender classification and the asserted State objective, 429 U.S. at 202, 97 S.Ct. at 459 (footnote omitted), and concluded that "the showing offered by the (State) does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving." Id. at 204, 97 S.Ct. at 460. Because the State's showing had failed, the Court held the statute unconstitutional.

In Caban v. Mohammed, supra, the Court declared unconstitutional a New York law which granted unmarried mothers, but not unmarried fathers, the right to withhold consent to adoption of their children. The Court rejected outright one of the State's asserted reasons that mothers are emotionally closer to their children than fathers. 441 U.S. at 389, 99 S.Ct. at 1766. As an alternative justification for the gender-based distinction, the State argued "that the distinction between unwed fathers and unwed mothers is substantially related to the State's interest in promoting the adoption of illegitimate children." Id. The Court acknowledged that the "special difficulties attendant upon locating and identifying unwed fathers at birth," id. at 392, 99 S.Ct. at 1768, might tend to frustrate the State interest in promoting adoptions. In Caban, however, the father had established a substantial relationship with the child whose adoption he wished to prevent, and had admitted his paternity. Having concluded that the challenged classification was overbroad and not narrowly tailored to serve the purpose of promoting adoptions, the Court rejected the State's suggested justification, saying: "no showing has been made that the different treatment afforded unmarried fathers and unmarried mothers under (the challenged statute) bears a substantial relationship to the proclaimed interest of the State in promoting the adoption of illegitimate children." Id. at 393, 99 S.Ct. at 1769. See also id. at 409, 99 S.Ct. at 1777 (Stevens, J., dissenting) (majority placed burden of showing the adoption facilitation objective would be furthered "for all persons disadvantaged by the rule" on state).

Craig and Caban demonstrate that once an appropriate party invokes constitutional scrutiny of a statutory gender-classification, the government must shoulder the burdens of producing evidence and proving a constitutionally-sufficient justification. ⁴ They thus reaffirm our analysis in Berkelman.

Hicks and Davis triggered constitutional scrutiny in their argument before the district judge by showing that the statutes facially discriminate against males. Each had standing to bring this challenge, because if the statute were unconstitutionally underinclusive, the district court would be required to dismiss the indictment. This provided a sufficient "personal stake in the outcome of the controversy" to afford standing. Linda R.S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). Cf. Orr v. Orr, 440 U.S. 268, 272-73, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979) (husband had standing when seeking to avoid alimony obligation by challenging divorce statute for gender-based underinclusiveness). When Hicks and Davis produced evidence of facial discrimination on the basis of gender, the burden of showing a substantial relation between important governmental objectives and the gender-based means chosen to effectuate them shifted to the government.

III

It remains for us to determine whether the government met its burdens of producing evidence and proof in this case. We conclude that it did not.

The government has articulated two purposes behind the statutory scheme: prevention of teenage pregnancy and prevention of physical injuries to young females. ⁵ But to demonstrate the relation between these purposes and the statutory penalties, it merely stated that "only women can get pregnant" and that there "seems to be evidence that women are far more likely to suffer physical damage" than are males of the same age. On appeal, the government asks us to take judicial notice of the fact that "intercourse correlates highly with pregnancy." We do. Still, these naked assertions fail to carry even the government's burden of producing evidence in this case, let alone to prove its contentions.

The government's articulated objectives do suggest that Congress had some basis for defining criminal liability for heterosexual contact ⁶ in terms of the age of the female partner. But the government has produced not a shred of evidence demonstrating how either objective is "substantially" furthered by punishment only of the male. The absence of such evidence is particularly disturbing because the statute punishes males of any age, even in cases in which the male is younger than the female. ⁷ The government supplied no evidence that males necessarily always do or should bear...