Warren E. Burger: We will hear arguments first this morning, in Number 79-1344; Michael M. against the Superior Court of Sonoma County, California. Now, Mr. Jilka, you may proceed whenever you are ready.
Gregory F. Jilka: Thank you, Mr. Chief Justice, and may it please the Court: My name is Gregory Jilka. I am one of the attorneys for Michael M., a 17-year old California youth who comes before this Court seeking reversal of the judgment of the Supreme Court of California, a judgment which upheld the validity, the constitutional validity of California Penal Code Section 261.5, on equal protection grounds. In oral argument this morning, I propose first to outline the issue in its procedural posture; secondly, to discuss the purposes and to assert the purposes of the statute and thirdly, to discuss the so-called pregnancy prevention rationale and as to whether or not it really diminishes the criminal culpability of the female. At issue in this case is the right of California to prosecute my client, Michael, for violation of the statute. The statute provides, and I quote, it prohibits "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years. " The operative facts in this case are simply that Michael stands accused of the crime. He has not been convicted of the crime and comes before this Court clothed with the presumption of innocence. He is currently awaiting trial, pending the decision of the Court in this case. Both California and the United States, as amicus on behalf of California, have suggested to this Court that Michael is guilty of a crime of which he is not charged; that crime is forcible rape. The suggestion that force existed in this case is unsupported by any judicial finding and is immaterial to the issues presented. And, in my opinion, tends to obfuscate the issue.
William H. Rehnquist: What was the charge? I mean, could the charge possibly embrace forcible as well as statutory?
Gregory F. Jilka: No, Justice Rehnquist, it could not. The information which is contained in the appendix is the charging document and it clearly states that Michael is charged with violation of the statute and the elements are simply that he participated in an act of sexual intercourse with a female who was under the age of 18. Forcible rape would not be a lesser included offense.
Potter Stewart: So, as you say, the suggestion that force was used is irrelevant because the issue before us is the constitutional validity of the statute on its face--
Gregory F. Jilka: That's correct, Your Honor.
Potter Stewart: --is that correct? So it's equally irrelevant that Michael was 17 years old?
Gregory F. Jilka: Well, Your Honor, I--
Potter Stewart: He was not... I mean, if you're right on the first--
Gregory F. Jilka: --That's correct, Your Honor.
Potter Stewart: --the second follows.
Gregory F. Jilka: I do believe, however, that we have fairly presented a limited constitutional question on the applicability of the statute as applied to a 17 and a half year old female who is charged with sexual intercourse with a 16 and a half year old.
Speaker: Yes?
Gregory F. Jilka: I feel that those facts are fairly before the Court because--
Potter Stewart: I thought that Michael was a male?
Gregory F. Jilka: --Yes, I'm sorry, Your Honor. He is, he certainly is. Those facts were alleged in the petition for writ of mandate, and were admitted by the State of California.
Potter Stewart: Well if we're going to get into the facts of this particular case, then the... and if this is a question of the constitutionality of the statute as applied, then both the matter that you've been discussing and the age of your client are, perhaps, relevant. But if the issue is the constitutional validity of this statute on its face, then neither the alleged facts of this episode, nor the age of the Defendant, are really relevant, are they?
Gregory F. Jilka: That is correct, Your Honor, as far as the facial issue of constitutionality goes.
Harry A. Blackmun: Counsel, could I ask you a question about the California situation? Could he have been charged... well, was he charged with a felony?
Gregory F. Jilka: Yes, Your Honor. He was charged with a felony.
Harry A. Blackmun: Could he have been charged for a misdemeanor?
Gregory F. Jilka: Yes, Your Honor, this statute could have been charged as a misdemeanor in the discretion of the district attorney, the prosecuting authority. If convicted, Michael--
John Paul Stevens: Mr. Jilka, could I interrupt again, because I'm always--
Gregory F. Jilka: --Certainly.
John Paul Stevens: --somewhat puzzled when we talk about constitutionality as applied or on the face, the case arises out of... doesn't it really involve a test of the legal sufficiency or constitutionality of the specific complaint filed against this man?
Gregory F. Jilka: That's correct, Your Honor.
John Paul Stevens: So, don't we have to take as true, for purposes of decision, whatever facts are alleged therein? Assuming that--
Gregory F. Jilka: Yes, Your Honor, that's a fair statement.
John Paul Stevens: --they will prove those and that they will not have to prove anything not alleged therein?
Gregory F. Jilka: That's true. I would, however, point out that what happened at the trial court was not in the nature of a demurrer, but it was a motion to dismiss, at which evidence was presented and primarily the evidence which was presented was the age of Michael. So--
John Paul Stevens: Well that is not... the age is not in the complaint itself?
Gregory F. Jilka: --That's correct, it is not part of the complaint, but it is certainly a matter of record. If convicted, Michael's conviction would be predicated on the existence of essentially four facts. First of all, that Michael is a male; secondly, that he simply participated in an act of sexual intercourse, that Sharon, his partner, was under the age of 18 years, and fourth, that Michael and Sharon were not married.
William H. Rehnquist: Counsel, I am troubled, as apparently some of my colleagues are, by the rather abstract question that's presented. Ordinarily, if a motion to dismiss and information is denied, the case goes to trial. And we have testimony and a verdict, or judges' findings, and it goes on, up through appeal to the state system and we get it here with a specific batch of facts, so to speak. You are simply challenging the statute on its face?
Gregory F. Jilka: That's essentially correct, Justice Rehnquist. The California Supreme Court, in exercise of its original and discretionary jurisdiction, issued an alternative writ to call that issue before it and decided that very issue of the facial constitutionality of the statute. So when the case comes here, fortunately or unfortunately, it's really without a record below or a very, very limited record.
William H. Rehnquist: And all the California Supreme Court said was that, on its face this statute is constitutional?
Gregory F. Jilka: Yes, Your Honor. I believe that's an accurate synopsis of the California Supreme Court's opinion. The statute, California Penal Code Section 261.5, embodies and reflects the traditional sexual stereotypes. Because only the male can violate the statute, it is presumed that he is the passionate aggressor, and similarly, conversely, that the female is the helpless victim who needs the paternalistic protection of the state and the protection of the statute. Neither California nor the United States have even attempted to refute that the statute is cast in terms of the traditional and outmoded sex roles.
William H. Rehnquist: Well, but there... there is one thing that isn't outmoded, isn't it, and that is that women can have children and men can't?
Gregory F. Jilka: Yes, Your Honor, that's certainly true.
Potter Stewart: Women can become pregnant and men can't?
Gregory F. Jilka: That is absolutely true, of course.
Potter Stewart: Is it your basic... since I've already interrupted you, is it your basic contention that California could have enacted a law such as this, if it applied not only to both men and women, but to people of all ages, victims of all ages?
Gregory F. Jilka: No, Your Honor.
Potter Stewart: Why not?
Gregory F. Jilka: As far as the age criteria goes, that's not challenged. What we're challenging is the discrimination between males and females.
Potter Stewart: Well, then is it... is it your submission that California could have enacted a law such as this if it had applied to victims of both sexes?
Gregory F. Jilka: That's correct.
Potter Stewart: Under 17?
Gregory F. Jilka: That's correct.
Potter Stewart: Although the next claim would be that it was unconstitutional for California to do that for people under 17, when it didn't do it for people over 17?
Gregory F. Jilka: That's... that certainly could be made, Your Honor. I think that that would be a much different case because the discrimination--
Potter Stewart: It would be a different case, but it would be a constitutional challenge, wouldn't it?
Gregory F. Jilka: --It could be, it certainly could be. In that case, there would not be discrimination, of course, on the basis of sex.
Potter Stewart: So it's your claim that California, having... cannot enact this for the protection of women alone; that if it enacts this, it has to go the whole hog and enact it for the protection of all people of either sex under 17 years old?
Gregory F. Jilka: That's correct, Your Honor. And I believe that has been done in varying forms by at least 37 of the states.
Potter Stewart: Wouldn't it follow that a state that passed a law to protect the purchasers of automobiles would have to pass a law to protect the purchasers of dishwashers?
Gregory F. Jilka: Well no, Your Honor, I don't believe so. Certainly not.
Potter Stewart: Well isn't that pretty much what your argument is?
Gregory F. Jilka: No. Your Honor. In this case we're talking about classifications on the basis of sex, which perpetuate we feel, the traditional stereotypes. Because--
Potter Stewart: California, if it tries to protect females, must protect males also?
Gregory F. Jilka: --Similarly situated males, yes--
Potter Stewart: That the constitution requires it to do so?
Gregory F. Jilka: --Yes, Your Honor, that is our contention.
Potter Stewart: Yes. Then, that would be true of forcible rape as well as statutory rape?
Gregory F. Jilka: Well that certainly could be one of the logical conclusions of the invalidity of the statute that's challenged. I think that, when force is involved, there certainly is a much different situation before the Court. But that's... that argument has certainly been made, and I believe, in a recent Tulane Law School Law Review article that that very hypothesis is set forward.
Speaker: Is that right?
Gregory F. Jilka: That's right. But I do not believe that this Court's invalidation of the statute would necessarily force the conclusion that all forcible rape laws are gender neutral, or must be gender neutral. In fact, in California, the forcible rape law is gender neutral, ironically enough, and so are all of the other statutes that are designed to prevent the sexual exploitation of California citizens.
Potter Stewart: Can women be guilty of the offense under this California statute as aiders and abettors?
Gregory F. Jilka: Yes, that's correct. As a racial minority--
Potter Stewart: Accessories?
Gregory F. Jilka: --Yes, that's right, that's right, they could, certainly, but not as a principal.
Warren E. Burger: Can the state... can a state constitutionally make it a criminal act for a woman of, let us say, 30, to seduce a young boy of 14 or 15?
Gregory F. Jilka: I would certainly say that that's within the realm of the state's legitimate concern--
Warren E. Burger: Most states do, do they not?
Gregory F. Jilka: --Yes, in one form or another; for example, in California, it is a very minor offense, it's contributing to the delinquency of a minor, it's a misdemeanor. Whereas Michael, because... simply because of his sex, now is facing a felony charge. If the sex roles were reversed around, if it were an older male or a male of any age and a female, there's heightened criminal penalties.
Warren E. Burger: You may have answered this before, but if he had been charged with a misdemeanor instead of a felony, would you be here?
Gregory F. Jilka: I don't know. The procedure that was utilized in the Supreme Court of California, exercising its original jurisdiction is predicated in the statute and I just don't know if the California Supreme Court would have taken this case had it been in a lower level court; that's problematic.
John Paul Stevens: Mr. Jilka, can I pursue a question that Mr. Justice Stewart asked you about washing machines and cars? Did you focus entirely on protection of the victim being sex neutral or are you also focusing at all on the punishment? In other words, are you in effect arguing that it would be unconstitutional to have a statute that said it's unlawful for men to steal cars but there is no prohibition against women stealing cars?
Gregory F. Jilka: I think that would follow, Your Honor; certainly.
John Paul Stevens: That's more, that's your position? But you told us that women can be guilty of violating this statute?
Gregory F. Jilka: As an aider and abettor, that's true.
Potter Stewart: And California, does... does California generally treat aiders and abettors the same as principals, as far as sentences go?
Gregory F. Jilka: I guess I could not, in honesty, answer that question.
Potter Stewart: Do you know the federal criminal law generally does?
Gregory F. Jilka: Yes, well, the penalties that are prescribed are the same for aiders and abettors as for the principals, certainly, if that's your question, yes. I would point out to the case, a new Eighth Circuit opinion in a case called Navedo v. Preisser, which was decided on September 22nd of this year, in which the Eighth Circuit invalidated the Iowa statutory rape law. That was a different statutory rape law than California, certainly, but I think that some of the reasoning certainly applies here. In considering the pregnancy--
Potter Stewart: That case is not in your brief, I gather?
Gregory F. Jilka: --No, Your Honor, it's a recent case; it was after the brief, it was decided September 22nd, 1980, in the Eighth Circuit.
Potter Stewart: What's the style of it, the citation?
Gregory F. Jilka: Navedo, N-a-v-e-d-o v. Preisser, and I could provide the Court with the case number.
Potter Stewart: Will you do that?
Gregory F. Jilka: I certainly will, Your Honor.
Potter Stewart: Preisser?
Gregory F. Jilka: Yes, it's P-r-e-i-s-s-e-r, is the second name. The first is Navedo, N-a-v-e-d-o.
Potter Stewart: Eighth Circuit?
Gregory F. Jilka: That's correct.
Potter Stewart: September?
Gregory F. Jilka: September 22nd.
John Paul Stevens: Of this year. Thank you. Mr. Jilka, excuse me again for interrupting. Mr. Justice Stewart made the point about aiders and abettors and you said they are equally culpable and equally punishable. Doesn't that entirely destroy your case?
Gregory F. Jilka: I don't believe so, Your Honor--
John Paul Stevens: Why not?
Gregory F. Jilka: --Well because,--
John Paul Stevens: What's the discrimination if both the male and the female can be punished equally and there can't be a crime unless they are both liable for some kind of punishment?
Gregory F. Jilka: --Well a male and a female can be punished equally only if the female aids and abets the male in performing an act of sexual intercourse with a female under the age of 18. There is no... what we're focusing on here should be the conduct. If a male engages in sexual intercourse with a female under 18, that's a felony; but if a female does not do the very same... if the female does the very same act, that is, engages in sexual intercourse with a--
John Paul Stevens: It seems to me by hypothesis it's either voluntary or involuntary on the part of the female; and if it's involuntary, why then you've got a forcible rape situation.
Gregory F. Jilka: --That's certainly correct.
John Paul Stevens: And you're not challenging that?
Gregory F. Jilka: That's correct.
John Paul Stevens: If it's voluntary, then don't you, by hypothesis, have an aiding and abetting situation?
Gregory F. Jilka: I suppose so, Your Honor. However, I would represent to the Court that in practice, that the victim, the purported victim is never charged with a crime. I couldn't--
Potter Stewart: Well I suppose a good many men who violate the statute are not charged with it?
Gregory F. Jilka: --Oh, I would certainly agree with that, Your Honor. There are... we estimate that there are probably more--
Potter Stewart: So that's no answer, in other words.
Gregory F. Jilka: --I'm sorry, Your Honor.
Potter Stewart: So your answer to my brother Stevens was really no answer to his question. Moreover I imagine that in these states that have sex neutral statutes like this, probably most of the prosecutions are males anyway.
Gregory F. Jilka: I don't know that to be true, Your Honor, but that certainly could be. I suppose the point that I was trying to make was that the engaging in sexual conduct... sexual intercourse for a male and a female is basically the same act, a mutual act; for a male under the same circumstances it's a felony, but for the female to participate, it is not. And I do not believe that a female can and would be charged as an aider and abettor, a female so-called victim.
Potter Stewart: There is a case in the federal system that said that the so-called victim in a Mann Act prosecution, could be guilty of conspiracy of her own... to carrying on her own transportation in interstate commerce for immoral purposes; wouldn't the same principal apply?
Gregory F. Jilka: I don't believe that it has been applied Your Honor, and I... in California, Your Honor... and I don't have the case authority for that, I certainly wish I did. But I believe that to be the case, that the female is in practice and in law not considered to be culpable as an aider and abettor. That is the female victim, excuse me.
Warren E. Burger: Would your case still survive if California had a statute that, contributing to the delinquency of a minor boy was a felony?
Gregory F. Jilka: It may, it may.
Warren E. Burger: When? What doubt do you have about it?
Gregory F. Jilka: Well the doubt that I would have would be if the substantive elements of the crime were identical and the purposes were identical, then arguably there would be no discrimination against males, or there would be no unequal treatment of the sexes, but that is not the case--
Warren E. Burger: If the range of sentences were the same for both the present statute and the one I hypothesized would there by any difference?
Gregory F. Jilka: --If the sentences were the same and the substantive elements of the crime were the same, I think that we would have great difficulty with an equal protection tack... I agree. I would point out to the Court that the California case law resoundingly demonstrates that the motivation for the enactment of the statute is the concern for the virtue of young girls and not the pregnancy prevention rationale. I would point out the cases cited at pages 25 and 26 of the brief of the Petitioner. These cases span the range of years 1895 through 1975--
Harry A. Blackmun: Of course, Your Supreme Court has said otherwise recently, hasn't it?
Gregory F. Jilka: --The Supreme Court has recently said otherwise in this case, but--
Harry A. Blackmun: Aren't we bound by that?
Gregory F. Jilka: --No, Your Honor, this Court is not bound by that and this Court has the right and in fact, the duty, to inquire into the purposes of the statute where the purposes reflect upon a constitutional claim. Otherwise, the state courts, by--
Harry A. Blackmun: Even when the Supreme Court of California pronounces what the purpose of their statute was?
Gregory F. Jilka: --That's correct, Your Honor. That is correct. This Court has the duty to look into the--
William H. Rehnquist: Well how could we know any better than the Supreme Court of California or the California legislature what the purpose of enacting a statute was?
Gregory F. Jilka: --Well in answer to that, I would say that the burden of demonstrating the purpose of the statute is on the government in this case and that--
Warren E. Burger: You mean the presumption of constitutionality doesn't attend to the statutes in California?
Gregory F. Jilka: --There is a... certainly a presumption of constitutionality, Your Honor, but I believe under the cases in this Court, the Wengler case, that it's been stated that the burden is on the state to make out the claim for the justification of stature. I believe that applies here. And I don't think the Court will have--
William H. Rehnquist: What's the difference between the presumption of constitutionality of the statute and the burden of the state to make out the justification for it?
Gregory F. Jilka: --Well I believe that the presumption of constitutionality is a broad presumption which applies to all statutes in general. But once, in a case, discrimination on the basis of sex is made out, then the burden shifts to the government to justify the classifications of the statute. I believe that that was the reasoning of the Ninth Circuit adopted in the case of the United States v. Hicks, which was cited in our brief, a recent Ninth Circuit case which invalidated a federal statute which--
Harry A. Blackmun: Do you know, has the government taken appeal on that one?
Gregory F. Jilka: --It's my information that the government has filed a petition for a writ of certiorari; I'm sorry, I don't know the number of it, but it was filed approximately two weeks ago, and it's also my information that the government has asked this Court to refrain from taking any action in the Hicks case until the disposition of this case.
Harry A. Blackmun: Let me go back to my inquiry about the California courts' observation of the purposes of this statute. I take it it's your position that having said in those older cases what the purpose was, that that's engraved in stone, the Supreme Court of California now may not look at the same material and come to a different conclusion.
Gregory F. Jilka: Well not exactly, Mr. Justice Blackmun. The most recent California Supreme Court case is only 1964, it's not an old case. The most recent Court of Appeals case is 1975, that also is not an old case. It's not that the justifications are--
Harry A. Blackmun: You're arguing calendar, then?
Gregory F. Jilka: --Well that's certainly part of it, Your Honor. But the pregnancy prevention rationale as pointed out in the Meloon case out of the First Circuit, is suspect, and that the recent Eighth Circuit case, the Eighth Circuit speaks in terms of pregnancy prevention as being a suspect justification because it's so readily used and so readily available to justify discrimination on the basis of sex.
Harry A. Blackmun: Of course what does the Eighth Circuit case have to do with the purpose of the California statute?
Gregory F. Jilka: It has nothing to do with the purpose of the California statute, except insofar--
Harry A. Blackmun: I'm just troubled by this apparent reversal of your Supreme Court as to the purpose of the California Court, and I am troubled, when I ask it doesn't mean that I'm fixed on my answer to it--
Gregory F. Jilka: --Certainly.
Harry A. Blackmun: --as to whether we are not bound by your interpretation of the purpose of their statute.
Gregory F. Jilka: I believe in the cases cited in my brief, Mr. Justice Blackmun, that we have adequately cited authority for the proposition that this Court does have the obligation and the duty to look beyond the state court's determination of what the purposes of the statute is.
Potter Stewart: Well what real difference does it make what the legislative purpose was? I know that a good deal of time was spent by both you and your brother, in your briefs, in talking about the purpose but isn't it the duty of this Court to look at the statute on its face and to, depending upon what level of so-called scrutiny one wants to apply, to uphold the statute if a rational basis can be conceived for its existence?
Gregory F. Jilka: Well, Your Honor--
Potter Stewart: Isn't it a pretty elusive quest to try to find out what the purpose of the California legislature was, back at the time of the enactment of this statute, maybe the various members of the legislature who voted for the statute had a variety of purposes?
Gregory F. Jilka: --Certainly, yes. However, we would contend and we have contended that the standard of Craig v. Boren is applicable in this case.
Potter Stewart: Regardless of the original purpose or the present purpose or whatever this California Supreme Court said about its purpose, the duty of this Court is to look at the statute and its impact and, depending upon, as I say, the level of so-called scrutiny under the Equal Protection Clause to decide whether or not the statute is rationally based. Isn't that about it?
Gregory F. Jilka: Well, essentially, Your Honor, I believe there is language in the Court's opinions in the past that do delve into the purposes of the statutes and whether or not the classifications served are substantially related to those purposes.
Potter Stewart: Is there any legislative history of this state legislation that one can look at?
Gregory F. Jilka: Essentially none.
Speaker: No, I didn't think so.
Gregory F. Jilka: There really is none. All we have is the California Court opinions, basically.
Warren E. Burger: Most states have no legislative history of the kind that we find in the Congress, generally, isn't that so?
Gregory F. Jilka: That is my understanding.
Warren E. Burger: So does that have some connection with the general proposition that if there is any rational basis which the Court can see for the legislation, then there is an obligation to sustain it?
Gregory F. Jilka: Well I think as a general proposition that that is certainly correct. However, because discrimination in this case is based upon sex that the burden is on the government to make out the claimed justification. Of course, our argument here is that this is based on heightened scrutiny because of the disparate effect that this has on California teenagers particularly.
William H. Rehnquist: Disparate effect as between teenaged boys and teenaged girls, or--
Gregory F. Jilka: In this case, certainly; and as between males and females of all ages who essentially engage in the same kind of conduct, be it reprehensible or not.
Potter Stewart: --But as I understood your answer to one of my earlier questions, you don't attack this statute on the basis that it protects people only under 17 years old?
Gregory F. Jilka: No, that's correct. That is correct. If it please the Court, I'd like to--
Potter Stewart: It punishes males of any age, does it not?
Gregory F. Jilka: --That is correct.
Byron R. White: Well do you think you are fatally wounded if we accept the purpose of the statute as announced by the State Supreme Court in this case? Justice Mosk didn't seem to think so.
Gregory F. Jilka: No, Your Honor, I don't think that we would be fatally wounded. I think that it would be impossible for California to demonstrate that the purpose of the statute prevention of pregnancy is substantially related to... or that the classification of the statute is substantially related to that purpose because it's quite overinclusive... it punishes conduct which cannot result in pregnancy.
Byron R. White: Well, what if it is overinclusive?
Gregory F. Jilka: Well the test, as I understand it, is that the classifications have to be substantially related. In this case, sex, the male gender is essentially used as a proxy for culpability, and we contend that that's an imperfect proxy. There is a weak congruence.
Byron R. White: Well, assume there is an equal culpability, but unequal impact on the parties engaging in this conduct; which is what, I take it, the California Court relied upon, and that apparently drawing the conclusion that it is permissible to punish the male even though the female may be equally culpable, because the female is hurt more?
Gregory F. Jilka: Well, it--
Byron R. White: And that the male deserves to be punished for engaging in conduct that will hurt the other person more than it does himself.
Gregory F. Jilka: --First of all, the--
Byron R. White: Isn't that... isn't that generally the--
Gregory F. Jilka: --Yes, it certainly is. It's--
Byron R. White: --Well how do you answer that?
Gregory F. Jilka: --Well first of all, the... the harm is only a potential harm, and certainly it occurs with some frequency, but does not certainly occur in every case. And, furthermore, at the time the teenage couple or whoever they are, decide to engage in sexual intercourse, the risks are equally apparent to the female as well as to the male and the female, quite voluntarily, as far as--
Byron R. White: You're just saying she... the female is equally culpable, that's all you're saying.
Gregory F. Jilka: --I'm saying she is equally culpable because she can certainly appreciate the dangers and risks of a decision to engage in sexual intercourse. Just as much as the male. There is no showing that punishing the female for example, or punishing the male instead of the female, is any more effective than vice versa, really.
Byron R. White: Well the State is saying to the male, because the results of this conduct will fall more heavily on the female, you should be especially careful.
Gregory F. Jilka: Well, as Justice Mosk stated, this goes to the consequences rather than the reason for the conduct and as such, is irrelevant in weighing the female's moral culpability.
William H. Rehnquist: Yes, but couldn't you say the same thing about OSHA, for instance, that the risks are possible, but the worker may not fall off the stepladder, but nonetheless, the government has the perfect right to say there's enough of a chance that he will that we're going to make sure it's safe.
Gregory F. Jilka: Certainly, Mr. Justice Rehnquist, but as I understand the OSHA statutes, none of them classify on the basis of sex; none of them define conduct for males that is hazardous that is not hazardous for females.
William H. Rehnquist: Well but they do... they do allow the legislature to take into consideration... that the legislature has taken into consideration possible risks as well as actual consequences.
Gregory F. Jilka: Yes, that is certainly true.
Warren E. Burger: Mr. Kriegler.
Sandy R. Kriegler: Thank you, Mr. Chief Justice, and may it please the Court: I am Deputy Attorney General Sandy R. Kriegler, appearing today on behalf of the people of the State of California, real party in interest. I would like to discuss the constitutionality of California Penal Code Section 261.5, in light of the tests set forth by this Court for gender based classifications, in Craig v. Boren. Under Craig v. Boren, classifications based upon gender are constitutional if they serve important governmental objectives, and if the classification scheme is substantially related to the achievement of those objectives. This Court has recognized that classifications based upon gender are not invalid, per se. Indeed, where the sexes are not similarly situated or in those situations where society imposes special burdens upon females, different treatment is allowed. We believe that the classification under the statute before the Court today is based upon physiological differences which do not reflect the type of invidious discrimination which the Equal Protection Clause prohibits.
Harry A. Blackmun: Mr. Kriegler, do prosecutors in California always press these as felonies?
Sandy R. Kriegler: No, Your Honor.
Harry A. Blackmun: Well, where is the line of distinction? Here you have two young people about the same age, one year and 18 days apart, and you press it as a felony?
Sandy R. Kriegler: I believe it was pressed as a felony in this case due to the particular facts involved. And these particular facts are revealed in the appendix--
Harry A. Blackmun: Well I read the appendix thoroughly and I would say the particular facts would seem to cut the other way.
Sandy R. Kriegler: --Well Your Honor, the prosecutor obviously disagreed based upon the fact that the victim clearly testified, under oath at the preliminary hearing, that she submitted to the act of intercourse only after being slugged in the face 2 to 3 times with sufficient force to leave bruises. We believe that this case, while it is not perhaps sufficient to constitute a forcible rape, or at least the prosecutor who filed the charges did not feel so, it certainly approached that. And it was above the level of consensual intercourse, that one might normally expect to be involved in a situation involving two minors. Certainly, the use of force, I feel, was the crucial factor in the prosecutor's decision to file this case as a felony. I would point out, however, to the Court that the case was originally filed in Juvenile Court, and the Petitioner was found unfit for treatment under the Juvenile Court law and then it came to adult court. So the initial filing was not even as a felony, it was under our Juvenile Court law under which there are no felonies or misdemeanors; it is not a criminal branch of our judiciary. We believe that the important governmental interests served by Penal Code Section 261.5 are the deterrence of teenage pregnancy, the prevention of physical injury to minor females from sexual intercourse.
John Paul Stevens: Mr. Kriegler, would either of those purposes be served any less well by a statute that was entirely neutral that applied to the female as well as the male?
Sandy R. Kriegler: Absolutely, Your Honor, particularly in this case. If our statute were gender neutral in this case, the victim, Sharon, would be, at least on the face of the statute, subject to prosecution. If she were subject to prosecution, first of all, she would be less likely to report the incident, because to do would be to incriminate herself.
Thurgood Marshall: Also, she might be less anxious to commit it, too, wouldn't she?
Sandy R. Kriegler: She may, Your Honor, but in view of the--
Thurgood Marshall: I thought maybe--
Sandy R. Kriegler: --Yes, Your Honor. I would just point out that in view of the testimony that she gave under oath, she was not a willing participant in this act; she submitted--
Harry A. Blackmun: --Well, who bought the liquor? Did you say she was not a willing participant--
Sandy R. Kriegler: --She was not a willing participant.
Harry A. Blackmun: --Well doesn't the Appendix show that she began the intimacies?
Sandy R. Kriegler: Your Honor, she engaged in a certain amount of kissing, apparently, from the record, with the Defendant.
Harry A. Blackmun: Making out, the term was used, and objected to and sustained.
Sandy R. Kriegler: I believe that was Mr. Jilka's term that he used in the preliminary hearing. However, it's clear that she did not wish to go further and proceed to an act of intercourse. And indeed, in that act she bore all the risks of the potential pregnancy, she was not willing to engage in the act, at least as far as the record that's before this Court.
Thurgood Marshall: And you say he was a perfect stranger?
Sandy R. Kriegler: I believe the record indicates she may have known the Petitioner.
Thurgood Marshall: When you say the record may show, doesn't the record actually show that she rode around in the police car to pick him out on the street?
Sandy R. Kriegler: That--
Thurgood Marshall: Doesn't the record show that?
Sandy R. Kriegler: --Yes, Your Honor.
Thurgood Marshall: Well you don't go around looking for people that you know, do you? You go to their home or where ever they are to pick them out.
Sandy R. Kriegler: Well all I'm saying is, she may have been familiar with the individual, I don't know that she was a personal friend or a close acquaintance--
Potter Stewart: Well, Mr. Kriegler, if the issue before us is the constitutional validity on its face of this California legislation, what in the world do the facts of this case have to do with it?
Sandy R. Kriegler: --Well we believe the statute is constitutional on its face for the reasons set forth by the California Supreme Court. It is Petitioner who has come before this Court urging that the statute is unconstitutional as applied to him because he is also a minor. That is the only reason that the as-applied argument is being made.
Warren E. Burger: But if the facts have any relevancy at all, they bear only on the decision of the prosecutor as to whether to prosecute on a felony or a misdemeanor, isn't that so? And that issue is not before us. Only the constitutionality, as Justice Stewart has said several times, on its face, is the issue here.
Sandy R. Kriegler: We agree. And our only point would be that insofar as Petitioner is pursuing the argument that the statute is unconstitutional as applied to him as a 17-year old, he cannot have it both ways; he cannot straddle the fence and say it's unconstitutional to apply this to me as a minor, on the other hand ignoring the specific conduct that he engaged in--
John Paul Stevens: Well why not? It's perfectly apparent on the face of the statute that it would apply to a consensual act between 17-year olds.
Sandy R. Kriegler: --That is not the facts before this Court. The statute on its face applies to all forms of--
John Paul Stevens: But do you not defend the constitutionality of the statute as applied to a consensual act between two 17-year olds of opposite sexes who are equally culpable? Yes, you do.
Sandy R. Kriegler: --Yes, we certainly do.
John Paul Stevens: They why do we have to argue about anything else?
Sandy R. Kriegler: Because it's important to point out, in this case, the two 17-year olds were not equally culpable.
John Paul Stevens: Well why is it important if you're defending the statute-- --How do we know that? You're just-- --instead of the prosecution? --and there's been no trial and no finding of fact, so we don't know whether that's true or not.
Sandy R. Kriegler: That is correct, Your Honor, there has been no trial. However, whether the parties are engaged in the type of conduct that occurred in this case or as Your Honor suggests, whether we view the statute on its face, we submit that the statute is nonetheless constitutional because it serves these two important governmental interests that I have mentioned and--
John Paul Stevens: You say that the reason it serves it better than a sex neutral statute is that after the act has been committed, then there's a greater likelihood that it will be reported by the female?
Sandy R. Kriegler: --Right--
John Paul Stevens: But in terms of the deterrence of the conduct itself, is it not clear that if the penalty applied to both, there would be less likelihood of the risk-creating conduct taking place? Right.
Sandy R. Kriegler: --I don't think that necessarily follows. Females have--
John Paul Stevens: You don't think the female should ever be punished for engaging in this kind of conduct as a deterrent to further examples of the same kind of conduct?
Sandy R. Kriegler: --Well I think the state might... the state legislature might, in the exercise of its sound judgment,--
John Paul Stevens: Would it be rational for a parent to say it's perfectly all right for my sons to do this, but it's wrong for my daughters to do this and therefore I will punish my sons but not my daughters? That's what the state is doing.
Sandy R. Kriegler: --It would depend upon the circumstances, Your Honor, and the act--
John Paul Stevens: Well it's always a risk-creating act, isn't it?
Sandy R. Kriegler: --It is, but the risks are borne uniquely by the female. But it might--
John Paul Stevens: But it takes two participants every time the act is performed, doesn't it?
Sandy R. Kriegler: --Yes, it does, it certainly does.
John Paul Stevens: And if it's consensual, why should one be punished and not the other one?
Sandy R. Kriegler: One should be punished because the California legislature has determined that the female bears these extraordinary risks from the act of intercourse; because of these extraordinary risks which Petitioner has conceded in it's brief, to be compelling state interests, the legislature has reasonably concluded, we believe, that the sexes are not similarly situated.
John Paul Stevens: Has the legislature reasonably concluded that those risks have been sufficient to deter females from voluntarily engaging in this kind of conduct?
Sandy R. Kriegler: Well, the question of deterrence is one that is very difficult to answer; we don't know how many people have or have not been deterred by the existence of this statute, or any other statute.
Potter Stewart: Not very many have. The point is, must be, I think, that the risk of pregnancy is a deterrence with respect to the female, and--
Sandy R. Kriegler: I submit--
Potter Stewart: --and in order to... and there is no such deterrence with respect to the male. And in order to deter the male this statute is necessary, applicable to males who indulge in this conduct, but not females because they are equivalently deterred by the risk of pregnancy, or the fear of pregnancy, isn't that your argument?
Sandy R. Kriegler: --Yes, it is, Mr. Justice Stewart.
Thurgood Marshall: Well, Mr. Attorney General, the first statute was passed in 1850, right?
Sandy R. Kriegler: Yes, Mr. Justice Marshall.
Thurgood Marshall: And it applied to girls 10 years old, right?
Sandy R. Kriegler: That is correct.
Thurgood Marshall: Is there any literature that shows that there was a rash of pregnancies among 9 year olds in 1850?
Sandy R. Kriegler: No. We are quite confident that the statute as originally enacted in 1950 was intended to prevent physical injury to minor females, 9 year olds certainly, at that time--
Thurgood Marshall: Well when did it change to pregnancy?
Sandy R. Kriegler: --Well the statute--
Thurgood Marshall: And I'm going to ask for a citation when you answer.
Sandy R. Kriegler: --Fine. The statute, Mr. Justice Marshall, was amended incrementally, at three stages: the age of the protection for the female raised to 14, 16, and eventually 18, in 1913. We believe that while there is no concrete legislative history to support the reasoning for those increases, certainly one inference that could reasonably be drawn as the age of the victim increased the possibility of pregnancy occurring was more frequent. Now--
Thurgood Marshall: Have you ever heard of anything more speculative than that in your life?
Sandy R. Kriegler: --Your Honor, there are some additional points I would like to make in regard to the question of legislative intent, if I might?
Thurgood Marshall: Sure.
Sandy R. Kriegler: In 1967, California passed its Therapeutic Abortion Act, and that is cited in our brief. And that of course was well prior to the time that this Court enunciated the rule that abortions were constitutionally mandated... must be made available. In that act, the one category of victim that was specifically named as being unconditionally eligible for abortion was statutory rape victims under our former statutory rape law; California Penal Code Section 261 Subdivision 1. Because that particular category of victim under Section 261 Subdivision 1, was specifically singled out as being eligible for abortion, we believe that it's very clear at least at that time, the legislature perceived the purpose of the statutory rape law, at least in part, as being intended to deter teenage pregnancies.
Thurgood Marshall: Did it change its statute?
Sandy R. Kriegler: Yes, Your Honor. Subsequently the statute was repealed--
Thurgood Marshall: Subsequently?
Sandy R. Kriegler: --Yes, in 1970, as a matter of fact, the present edition of the statute, Penal Code Section 261.5, was enacted, it was taken out of the former rape section, and it was called unlawful sexual intercourse. We believe that since that occurred three years after the legislative deferration of... the connection between statutory rape and teenage pregnancy--
Thurgood Marshall: Three years later?
Sandy R. Kriegler: --Yes, Your Honor.
Speaker: It wasn't the same legislature, either.
Sandy R. Kriegler: No, Your Honor, it was not the same legislature. But certainly, I think, that is the most recent indication, at least at that time, of what the legislatures' thinking was in regards to the purpose of the statutory rape law. I would also point--
Potter Stewart: Mr Kriegler, really, I don't... I either didn't understand in reading your briefs, or your opponent's briefs, why you run away from the idea that the purpose of this statute is to protect the chastity of minor females and don't face up to the fact that your opponent argues that California is constitutionally prohibited from passing such legislation unless it also protects... legislation to protect the chastity of minor males.
Sandy R. Kriegler: --Well first of all--
Potter Stewart: That's the argument.
Sandy R. Kriegler: --I don't think that is the intent of the legislature in this case. First of all, because there's--
Potter Stewart: What difference does it make?
Sandy R. Kriegler: --no chastity requirement. Well, there's no chastity requirement in our statute, number one.
Warren E. Burger: Well why then, all these statistics on the great rise in pregnancies of unmarried teenagers, 12-13-14 years old, if that wasn't related to the legislatures' purpose?
Sandy R. Kriegler: Well, certainly there is a direct correlation between the frequency of intercourse today and the resulting pregnancies; I don't think there's any dispute about that. My point is--
Warren E. Burger: According to the opinion of others I thought that California's position was that the California legislature has a right to try to protect minor children, females, from the whole range of consequences of this kind of conduct?
Sandy R. Kriegler: --That is correct, and we also protect minor males. I don't want to leave this Court with the false--
Potter Stewart: Well in this case, you protect only females, because it applies only when females are victims.
Sandy R. Kriegler: --Because of--
Potter Stewart: But the argument is that California is constitutionally disabled from enacting any such legislation and that it is constitutionally required to protect also minor males, if it protects minor females. Now that's a very odd argument, and you haven't done it at all.
Sandy R. Kriegler: --Well, our response is that California is not constitutionally required to treat dissimilarly situated sexes the same way. We have established that the very narrow category of victim in this case is in need of special protection. Minor males are not in need of the same protection. That is not to say, however, that minor males do not get protection under the California laws.
John Paul Stevens: Isn't that because there's a greater moral stigma to this act if it's performed by an unmarried female than by an unmarried male?
Sandy R. Kriegler: I don't think it is necessarily a moral stigma, it may be a basis of... of--
John Paul Stevens: Well, does California, is it the policy of the state of California to place greater importance on the chastity of the female than on the chastity of the male?
Sandy R. Kriegler: --I don't think--
John Paul Stevens: In moral terms?
Sandy R. Kriegler: --I don't think it turns upon the question of chastity, Your Honor. I think it turns upon--
John Paul Stevens: Then Mr. Justice Stewart is suggesting you should face up to that, and I'm wondering whether, in facing up to that, you are contending there is a distinction in the, in the morality of the act, depending on the sex of the person who participated. Or that's really... you don't have to contend that. Just-- --Or you rely entirely on pregnancy-- --California legislature determined to protect the chastity of minor females, not of all people of all ages, or of both sexes, and your opponent's argument is that California is constitutionally required, if it protects minor females to at least protect minor males. We don't have here the question of whether it also is constitutionally required to protect the chastity of males and females of all ages but that would be the next case. You certainly must argue... you certainly must argue that the consequences, apart from any moral issue, the consequences socially, economically and in various other ways, are much greater on the girl, is that not so?
Sandy R. Kriegler: --That is the entire basis of our argument.
Warren E. Burger: But you haven't been making that argument, Mr. Kriegler. Yes, you've hardly had time, have you? No. Or a chance.
Sandy R. Kriegler: Thank you, Mr. Justice White.
Warren E. Burger: Well, now, go ahead and make it now, if you are ready to.
Sandy R. Kriegler: Once the statutory purposes of deterring these teenage pregnancies, and as Mr. Chief Justice has, thankfully, pointed out... the consequences of these pregnancies are just disastrous on minor females. Eight out of ten never complete high school; 60 percent end up on welfare within 2 to 5 years. The consequences are medically disastrous, the--
John Paul Stevens: Is it your argument that there would be less of a deterrent if it was also unlawful for the female to engage in sexual intercourse at this age; that that would be a lesser deterrent to pregnancy?
Sandy R. Kriegler: --I think there would be a problem involved in it, and I started to answer, I think, the same question a little bit earlier and I didn't quite get to complete my answer. First--
John Paul Stevens: Enforcement problem, you've identified that.
Sandy R. Kriegler: --Well, it even goes beyond the problem of reporting. If the statute were gender neutral, the female would be culpable also as an aider and abettor, or a principal, in this case. That creates problems of who is the state going to prosecute; the male or the female? Well that's a judgment call on the part of prosecutors. You start getting into the question of is this particular case a discriminatory prosecution? So we have a hearing in which this minor female who is supposed to be protected by the statute, goes through all the facts again and we decide whether it's a discriminatory prosecution or not. But even if we were to say that she should be protected under the statute, that creates another problem in California, because she, as an accomplice or an aider or abettor, must have her testimony corroborated under California Penal Code Section 111.1. And under that section, her testimony standing by itself won't be sufficient to constitute substantial evidence for a conviction under California law. These acts are, by and large, committed in privacy. This would be a very substantial problem for the state of California to enforce its law, if we had a gender neutral statute. When we add to that the fact that in the great majority of these cases, the perpetrator is the adult... is an adult. We have cited statistics in our brief which show that it's a very rare case indeed that a minor male is prosecuted. Perhaps only one--
John Paul Stevens: But in terms of the actual conduct you seek to deter, you don't have statistics about that, do you? I mean, isn't there a large volume of conduct in which the participants are both young persons?
Sandy R. Kriegler: --I'm sure there is, Your Honor, yes. I don't think we can deny that fact.
John Paul Stevens: And you think that you would not be as equally effective in deterring that conduct if you also imposed a penalty on the female for engaging in it?
Sandy R. Kriegler: Well it may or may not be--
John Paul Stevens: Because of these enforcement problems you describe?
Sandy R. Kriegler: --Well it may or may not be the case. Many states--
John Paul Stevens: Well if it's not the case then you have no rational basis for the discrimination. You may have a rational basis for the prohibition, but you have to justify why do we make it just as to one and not the other?
Sandy R. Kriegler: --Well I think it goes beyond the enforcement problems. There I come back to our original point, the statute is based upon deterring the particular harmful--
John Paul Stevens: Let me give you an example which I've reflected on. Supposing you had a law that made it reckless driving to drive on a motorcycle at excessive rate of speed. And you said well, if a person doesn't wear a helmet, he'll suffer greater harm if he has an accident, so we will exclude people who do not wear helmets from the prohibition against reckless driving. Under your rationale that would be a perfectly reasonable exclusion, is that not right?
Sandy R. Kriegler: --I... I--
John Paul Stevens: Because they suffer a greater risk of harm, therefore you don't need to deter them with legal sanctions?
Sandy R. Kriegler: --Well, I don't think that necessarily follows.
John Paul Stevens: And that's your argument about the female; she suffers a greater risk of harm, and therefore, she should not be deterred. She should know intelligently, no matter how young she is, that she should not do this.
Sandy R. Kriegler: Well, this statute, Your Honor, is consistent with all of the California laws which prohibit sexual offenses with minors, whether they be male or females. Under California law where the minor is protected from acts involving lewd or lascivious conduct, or annoying or molesting that child or other acts of sex perversion, it matters not whether the minor who engages in those acts with the adult counterpart is acting consensually or not. The statute is there for the protection of that particular individual, because of the consequences of the act. And it doesn't matter whether the act is consensual or not; the severe consequences to the minor victim in all of our California statutes, are recognized, because the minors are not treated as being culpable for the crime that's committed. When the female in this case is properly viewed as the victim and is properly viewed as suffering disparate consequences from the act of intercourse, none of which whatever are borne by the male who engages in the act of intercourse, we believe that the statute does not contain--
John Paul Stevens: Is it part of your position that the male participant never suffers any adverse consequences other than legal prohibition?
Sandy R. Kriegler: --We are unaware of any substantial adverse consequences to the minor male.
John Paul Stevens: There's financial responsibility, sometimes. There's physical harm, sometimes, isn't there?
Sandy R. Kriegler: We are unaware of any--
William H. Rehnquist: Well how about venereal disease?
Sandy R. Kriegler: --That is a potential harm that both suffer.
William H. Rehnquist: To either one?
Sandy R. Kriegler: Yes, Your Honor.
John Paul Stevens: How about an irate father?
Sandy R. Kriegler: That may be a more practical consideration, I don't know.
Byron R. White: And some liability for support, eventually?
Sandy R. Kriegler: Well I think that's pretty tenuous, particularly in this case, where, you know, we have a minor male participant. I really--
Byron R. White: Could I ask you... could I ask you, suppose a young man, a teenager, is on trial under this statute and he's tried before the judge, and he defends on the ground that the statute as applied to him is unconstitutional because in this case the woman was the aggressor, and that he surely shouldn't be punished in those circumstances and the judge finds yes, the woman was the aggressor, and is much culpable and blameworthy in the case, but nevertheless says this statute requires it and this statute is constitutional. I suppose you must defend the statute, even in those circumstances?
Sandy R. Kriegler: --Yes, we would, for the same reasons that I stated previously. But I would like to point out, and emphasize this fact most strongly to the Court, after all the research that has been done in this case, Petitioner has yet to cite to a single instance where the statute has been applied in an unfair manner as suggested by Mr. Justice White's question. We believe that the statute as applied in this case was clearly applied to the sexual aggressor. The cases that are decided in California under our--
Byron R. White: Well but that's just avoidance, you would say, even if it were applied every day in those kinds of circumstances that I gave you, it would be constitutional?
Sandy R. Kriegler: --Yes, Your Honor, definitely it would. I would simply point out, though--
Thurgood Marshall: When you talk about the sexual aggressor, would that be... a person that plied somebody with liquor?
Sandy R. Kriegler: --Could possibly, Your Honor, yes.
Thurgood Marshall: And isn't that what happened in this case?
Sandy R. Kriegler: I believe the girl drank her own liquor in this case, Your Honor. I don't think she plied anybody with liquor.
Thurgood Marshall: Well she... she drank it herself?
Sandy R. Kriegler: Yes, she did, certainly.
Thurgood Marshall: But if he'd given it to her, he'd have been the aggressor?
Sandy R. Kriegler: Well, we don't... we don't base our--
Thurgood Marshall: I hope not.
Sandy R. Kriegler: --on that fact, Your Honor.
Warren E. Burger: Well I come back again to where we've been before. We're not dealing with this case of the statute as applied, but on its face, and nothing else.
Sandy R. Kriegler: Correct, Your Honor. We would strongly urge this Court to recognize the severe consequences that befall only the teenage female participant in an act of intercourse, regardless of the age of the male participant. And with the Court being aware, as it is, of the consequences of teenage pregnancy, I don't need to remind the Court certainly of the statements made in earlier cases. I know, Mr. Justice Powell speaking for the Court in Bellotti v. Baird certainly recognized that the consequences of pregnancy, severe as they are to an adult woman, are even more severe to the unwed, teenage mother. California legislature has recognized the disastrous consequences of teenage pregnancy and sexual abuse of minor females in the state of California. The problem is conceded by Petitioner to be one of monumental proportions. The state of California has made the valid judgment that in view of the risks which are borne only by the minor female, none of which are suffered by the minor male, that criminal sanctions should be employed as it is, under California Penal Code Section 261.5. We ask this Court to leave intact California Penal Code Section 261.5 because of the degree of protection it provides to this particular class of individual is so needing in that protection. We submit that the judgment of the California Supreme Court should be affirmed. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.