George RUNDLETT, Petitioner-Appellant, v. Richard OLIVER, and State of Maine, Respondents-Appellees.
No. 79-1044.
United States Court of Appeals, First Circuit.
Argued May 10, 1979. Decided Aug. 1, 1979.
564 F.2d 602
Michael E. Saucier, Asst. Atty. Gen., Augusta, Me., for respondents-appellees.
Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, DEVINE, District Judge.*
DEVINE, District Judge.
Appellant, George Rundlett, was indicted and convicted on three counts of violating
The statute at issue,
Whoever ravishes and carnally knows any female who has attained her 14th birthday, by force and against her will, or unlawfully and carnally knows and abuses a female child who has not attained her 14th birthday, shall be punished by imprisonment for any term of years. (Emphasis added.)
In its consideration of the initial appeal, the Maine court noted that the word “whoever” in the above statute is facially a “gender-neutral” term. 391 A.2d at 817. But the Maine courts have construed “carnal knowledge” to be synonymous with sexual intercourse, which has been defined as “penetration of the female sex organ by the male sex organ“. State v. Bernatchez, 159 Me. 384, 385, 193 A.2d 436, 437 (1963); State v. Croteau, 158 Me. 360, 362, 184 A.2d 683, 684 (1962). The evidence presented at appellant‘s jury trial in the state court warranted findings of fact that, as the junior high school homeroom teacher of the complaining witness, he engaged in sexual intercourse with her at various times in late 1975 and early 1976. At all such times the complainant was under fourteen years of age.
Throughout all stages of his appeal, the appellant has relied on our decision in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950 (1978). In affirming the district court‘s grant of a writ of habeas corpus in that case, we considered New Hampshire‘s former, gender-based, statuto-
A male who has sexual intercourse with a female not his wife is guilty of a Class A felony if . . . (c) the female is unconscious or less than fifteen years old. (Emphasis added.)
Ruling that the applicable equal protection standard was that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” (Craig v. Boren, 429 U.S. 190, 197 (1976), rehearing denied, 429 U.S. 1124 (1977)), we rejected New Hampshire‘s contentions that the gender-based classification outlined in its statute reasonably reflected particular legislative concerns with the prevention of physical injury resulting from the act of intercourse, and the prevention of pregnancy of the under-aged partner. 564 F.2d at 607-09. In addition, we found that the apportionment of burdens under New Hampshire‘s statutory scheme was ill-suited to achievement of the overall objectives of its law — the prevention of the sexual exploitation of children through the act of sexual intercourse. Id.
The appellant here argues that the logic of Meloon compels a similar result in this case, while appellees, although citing the same pregnancy and injury protection rationales proffered by New Hampshire in that case, seek to distinguish the Maine statute on two grounds.
I.
The appellees’ initial contention is that since male and female perpetrators are not similarly situated with respect to the preventive purposes of Section 3151, which purposes are grounded in unique physical differences between the sexes, the statute need only pass muster under the traditional minimum-rationality equal protection test of judicial review. At the outset, we note our agreement with appellant that appellees’ argument that male and female perpetrators are not similarly situated under this statute is in contradiction of appellees’ opening concession on brief that the statute does indeed discriminate on the basis of sex.3
Discrimination connotes unequal treatment of similarly situated parties. Appellees argue that with respect to the purposes of the statute, males and females are not similarly situated. The correctness of that contention is irrelevant to our analysis. Our inquiry must necessarily focus upon whether males and females are different in fact with respect to the definitional facts of the offense of which appellant was found guilty. Careful examination of Wark v. Robbins, 458 F.2d 1295 (1st Cir. 1972), cited by appellees in support of their contention, demonstrates that our focus in that case was cast in such terms.4
Under Section 3151, the act which triggers criminal liability is sexual intercourse — penetration (however slight) of the female sex organ by the male sex organ. State v. Croteau, 158 Me. 360, 362, 184 A.2d 683, 684 (1962). While it may be argued that this is indeed “a unique physical act“,5 the very definition of sexual intercourse adopted by the Maine courts precludes that act from being performed by a member of one sex without the participation of a mem-
In short, section 3151 created a classification based on sex. It neither protected males under [fourteen] nor punished females for engaging in sexual intercourse with males below that age. State v. Rundlett, supra, at 817.
Because the gender-based classification within Section 3151 centers upon a punishable act which, stripped of its surroundings, circumstances, or consequences, is equally the product of male and female actors, the standard of review prescribed by Craig v. Boren, supra, is applicable, and the recent case of Parham v. Hughes, 441 U.S. 347 (1979) is distinguishable.6
The appellees further argue that viewing Section 3151 within the totality of the larger statutory scheme in effect at the time of appellant‘s conviction governing sex offenses involving minors, it may be concluded that male and female children were afforded equal protection, and that male and female offenders were equally subject to criminal sanction. But under Section 3151 all males, regardless of age or marital status, were subject to criminal sanction for penetration, however slight, of the sex organ of a female under fourteen years of age. By contrast, a female would escape such sanction from engaging in sexual intercourse with a male under fourteen years of age, unless the state chose to impose criminal liability upon her for adultery (if she were married) pursuant to
Further, regardless of the particular offense, if any, charged against a female engaging in sexual intercourse with a male under the age of fourteen, the consequences for a male convicted of the same act under Section 3151 alone are potentially more severe (punishment by imprisonment for any term of years) than the longest term of imprisonment that could be imposed upon a female (not more than ten years of hard labor under now-repealed Section 1951).9
II
We now address the primary issue presented by this appeal: whether the district court erred in denying appellant‘s petition for a writ of habeas corpus, thereby upholding the constitutionality of
As we have previously indicated, the former New Hampshire statutory rape statute invalidated in Meloon varies only slightly in wording and operation from
We want to take care to indicate the limited nature of our holding. We have found only one particular statutory rape law to be unconstitutional. We have not reflected on nor do we intend to question the constitutionality of the laws of other states. We express no opinion as to whether on a different record some other statute would pass constitutional scrutiny. 564 F.2d at 609.
In Meloon, as here, allegedly uniquely female concerns were proffered in support of the gender-based classification embodied in the statutory rape law: The prevention of physical injury to young females resulting from sexual intercourse and the prevention of pregnancy in under-age female partners to that act. Neither rationale saved the statute in that case. With respect to the pregnancy prevention rationale, we noted that “New Hampshire presents us with not an iota of testimony or evidence that the prevention of pregnancy was a purpose of its statutory rape law. Indeed, all inferences that may be drawn from the materials presented to us are to the contrary“. 564 F.2d at 607. Similarly, with respect to the concern for physical injury to female children, we commented that “the state has given us no sense of how common an occurrence this form of injury is . . . particularly in light of the ‘penetration, however slight’ definition of the offense“. Id. at 608. Since we did not understand New Hampshire to argue that this form of injury was the exclusive danger (pregnancy aside) which its statute was designed to mitigate, and because we perceived “that the statute and its classification cover[ed] a far larger class [of females] than this justification would warrant“, we found a lack of precision, insufficient to support the asserted connection
between (1) the fact that one subclass of one gender class of victims has some indeterminate likelihood of suffering an additional injury to which the other gender class is not susceptible and (2) the state‘s statutory scheme which penalizes only one gender exclusively and protects the other gender exclusively. Id.10
It is well-established law that “state courts are the ultimate expositors of state law” and the federal courts are bound by the constructions placed upon state statutes by state courts absent extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); Pagan Torres v. Negron Ramos, 578 F.2d 11, 14 (1st Cir.), cert. denied, 439 U.S. 1005 (1978). “Construction” in this sense refers to the structure of a statute, what its words mean, and how it operates. See, e. g. Wilbur v. Mullaney, 496 F.2d 1303, 1305 (1st Cir. 1974), aff‘d, 421 U.S. 684 (1975); Brown v. Ohio, 432 U.S. 161, 167 (1977); Gurley v. Rhoden, 421 U.S. 200, 208 (1975).
Where, as in the instant case, it is necessary to determine what governmental objectives are sought to be served by a particular state statute, the views of the highest state court should also be given careful consideration. Reitman v. Mulkey, 387 U.S. 369, 376-79 (1967). Of course, we need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrate that the asserted purpose could not have been a goal of the legislation. Eisenstadt v. Baird, 405 U.S. 438 (1972); Jimenez v. Weinberger, 417 U.S. 628, 634 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536, 537 (1973); Weinberger v. Weisenfeld, 420 U.S. 636, 648 (1975).
In Califano v. Goldfarb, 430 U.S. 199 (1977), the court followed the “inquiry into actual purposes” approach of Weisenfeld to conclude that the intent of Congress differed from that represented by the Government. In Craig v. Boren, 429 U.S. 190 (1976), the purpose of the enhancement of traffic safety that was suggested by the Oklahoma Attorney General was accepted as the basis for disposition of the case on the ground that the gender-based distinction contained in the challenged statute did not closely serve to achieve that objective.11 Likewise, in Orr v. Orr, 440 U.S. 268 (1979), involving a challenge to the constitutionality of Alabama alimony statutes, the Supreme Court conceded the legitimacy of certain of the legislative objectives behind these statutes as proffered by the Alabama Court of Civil Appeals, and focused its analysis primarily on whether the gender-based classification therein was substantially related to achievement of those objectives.12 The case of Caban v. Mohammed, 441 U.S. 380 (1979), challeng-
Viewing the Maine Supreme Judicial Court‘s analysis of the legislative history of
In light of all the above, we see no reason to doubt the Maine Supreme Judicial Court‘s interpretation that prevention of physical injury constitutes a principal governmental objective underlying
With respect to the injury prevention rationale proffered by the State of New Hampshire in Meloon, we were concerned that the statute in that case and its classification scheme covered a far larger class of female victims than the injury prevention justification would warrant. 564 F.2d at 608. Moreover, neither the State‘s highest court (State v. Meloon, 116 N.H. 669, 366 A.2d 1176 [1976]), nor the State‘s advocate in that case presented us with a sense of how common this form of injury was. As has been noted above, the age of female victims in the statute here in question is set lower than was the case in the New Hampshire statute in Meloon. Here, then, there is greater congruity between the class of victims and the potential risk of injury to them that is sought to be prevented. And in this case, the State of Maine‘s advocate has offered substantial statistical and medical evidence to support its contention that young females, unlike young males, are often victims of physical injury resulting from a crime that is predominantly committed by males.16 Although this evidence is open to varying interpretation, we are satis-
In sum, we hold that
Affirmed.
LEVIN H. CAMPBELL, Circuit Judge (concurring).
I join in upholding the Maine statute because, although it is much like the New Hampshire statute invalidated in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), this court carefully limited the reach of its opinion in Meloon, leaving room for upholding a similar statute if faced with a different record presenting more plausible or better substantiated legislative purposes that could meet the requisite degree of heightened scrutiny for sex-based classifications. See 564 F.2d at 607, 608. Unlike our dissenting colleague, I feel that the gaps noted in Meloon have been adequately filled in.
This is not to say that I rest easy with the kind of inquiry into legislative purposes that Meloon initiated.1 While there are cases where it is necessary to look into the motives of legislators, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), and while this is an area that has generated much recent comment, see the collection of articles in 15 San Diego L.Rev. 925 (1978), this is a path that presents great difficulties. As Chief Justice Warren pointed out,
“Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different
matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.” United States v. O‘Brien, 391 U.S. 367, 383-84 (1968) (footnote omitted).
That two identical statutes could be held unconstitutional in one instance and constitutional in another simply because of the “purposes” attributed to those who supported them is troubling. Results are likely to depend, as we now see, simply on the extent of documentation — if any — compiled by the enacting body and on the adequacy of the record compiled for us by counsel. (A third factor, as our dissenting colleague suggests, may be the scholarship of the writing judge.) Constitutional adjudication should be less fickle.2
When legislative purposes behind sex-based classifications are not explicitly stated and endorsed, I would prefer to infer them when possible from the effects of the statute itself. Here, I think it fair to say that the statutory rape law has the effect of protecting women from sexual intercourse at an age when sexual activity or pregnancy can be psychically and physically damaging, and I think it can properly be inferred that this was at least one of the legislative “purposes” at work.3 It is reasonable to take judicial notice of the fact that only women can become pregnant and that they cannot escape the consequences of their sexual activity as readily as can men. This, as well as the possibility of more serious physical harm to pre-pubescent women relied on by Judge Devine, for me legitimates the purposes of protecting young women. I think that achieving this purpose by holding men criminally liable for engaging in sexual activity with women under age is sufficiently related to this purpose to pass constitutional muster under the heightened degree of scrutiny accorded sex-based statutory classifications.
BOWNES, Circuit Judge (dissenting).
I fail to perceive the essential difference between this statute and the New Hampshire one we held unconstitutional in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950 (1978). Both statutes discriminate on the basis of sex. Both punish a male, but not a female, for engaging in consensual sexual intercourse which has been defined under the common law of both states as “penetration, however slight.” Under both statutes, a male under the age of consent who has sexual intercourse with a female of the same age is liable to be convicted of a felony. It is true, of course, that the Maine statute defined the age of consent as fourteen and in New Hampshire it was set at fifteen. As the majority recognizes, however, this is a distinction, but not a difference. It is also significant that both Maine and New Hampshire have repealed their sexually discriminating statutes and replaced them with equally effective but sex neutral laws.1 If, then, as the majority candidly states, “the former New Hampshire statutory rape statute invalidated in Meloon varies only slightly in wording and operation” from the Maine statute, what is the explanation for forsaking our teaching in Meloon and embracing the opinion of the Supreme Judicial Court of Maine with open arms?
There are, I suggest, two explanations. The first is that, unlike Meloon where the intercourse was really consensual, here the facts show that the female was overborne by the age of her partner and his status as a teacher in the school she attended. In fact, the evidence adduced at the trial strongly suggests that the defendant, at least the first time, had sexual intercourse with the complainant “by force and against her will.” The case was, however, expressly tried on the theory that consent was neither an issue nor a defense.
The second explanation for the result reached by the majority is that it, like the district court, was seduced by the impressive historical exegesis of the statute by the Chief Justice of the Supreme Judicial Court of Maine. Analysis reveals, however, that the purposes and reasons for the Maine statute as articulated by Maine‘s eminent Chief Justice are not based on any expressed legislative intent, but rather on the court‘s determination of what that intent would have been if there had been a legislative history to examine. The Maine court goes back to 1669 when Massachusetts passed its first statutory rape law to find the only expressly stated legislative comment: “carnal copulation with a woman childe, under the age of ten years, is . . . perrilous to the life and well-being of the childe . . .” State v. Rundlett, 391 A.2d 815, 819 (Me.1978). It then carries this “legislative history” forward over a period of two hundred years to 1889 when the statute involved here was enacted. During that time span, the age of consent was raised from ten to thirteen in 1887, and to fourteen in 1889. There is, however, no recorded legislative comment at all as to the purpose and intent of the statute. It is clear that this statute has no legislative history in the traditional sense, and that the Supreme Judicial Court of Maine has engaged in a singular feat of attribution. By tracing the history of the statute, the Maine court has created its legislative history. One cannot help but be reminded of the observation that “he who writes history makes history.”
The majority accepted Maine‘s position that the potential for physical injury to the female, and not the male, justified the statute. It relies heavily on the fact that here, unlike Meloon, the State‘s advocate “has offered substantial statistical and medical evidence to support its contention that young females, unlike young males, are often victims of physical injury resulting from a crime that is predominantly committed by males.” While this may be so, although such evidence was not introduced in the district court, my brethren miss the point. There is no indication that the Maine legislature considered any reason or purpose for the statute. As the Supreme Judicial Court of Maine makes clear, the legislature simply followed the example of Massachusetts and copied its statute. State v. Rundlett, supra, 391 A.2d at 820. It
While I am willing to give due deference to the interpretation that the highest court of a state gives to its own statute, I am not willing to follow it backwards in time and thought to the 19th century when the sexual differences between male and female fostered the almost universally accepted but unproven myth that women were inferior to men in all respects and had to be protected by them and from them.
The same arguments advanced and rebuffed in Meloon are propounded here.
I would reverse on the basis of our analysis in Meloon v. Helgemoe, supra, 564 F.2d 602.
Notes
A person is guilty of rape if he engages in sexual intercourse:
A. With any person, not his spouse, who has not in fact attained his 14th birthday . . . (Emphasis added.)
It is the following paragraph from Meloon which I especially question:“We examine the pregnancy prevention rationale with special wariness. Certainly the fact that women and not men bear children is a fundamental distinguishing characteristic of the two sexes and as such it can be the basis for some gender based legislation; but there is a danger that the very uniqueness of this characteristic makes it an available hindsight catchall rationalization for laws that were promulgated with totally different purposes in mind. New Hampshire presents us with not an iota of testimony or evidence that the prevention of pregnancy was a purpose of its statutory rape law. Indeed, all the inferences that may be drawn from the materials presented to us are to the contrary.” [Footnote omitted.]
Meloon v. Helgemoe, 564 F.2d at 607. The passage suggests that it is not sufficient to identify important governmental objectives that are achieved substantially by a challenged statute. More is required — namely, “testimony or evidence” that the asserted objectives were the “purposes in mind.” Thus, while our opinion in the instant case rests on the prevention of injury rationale and avoids the question of pregnancy prevention, the above passage has affected the focus of our analysis of the issue. To supply the requisite “testimony or evidence” and to divine the “purposes in mind,” both the Maine Supreme Court and we are carried back to a 1669 statutory antecedent to the challenged statute which provides that, “carnal copulation . . . is . . . perrilous to the life and well-being of the childe . . .” State v. Rundlett, 391 A.2d 815, 819 (Me.1978), ante at 501. I do not know what was prominent in the minds of the legislators of a day when people may not have drawn the fine distinctions between religious and health concerns of our era, and I cannot, in all candor, say that I believe such an inquiry to be especially illuminating. See note 3, infra.
1.A person is guilty of a class A felony if he engages in sexual penetration with another person . . . (XI) When the victim is less than thirteen years of age. (Emphasis added.)
Motivation analysis can also be criticized because it “enables judges to read their ideas of good social policy into the law . . .” A. Miller, “If ‘The Devil Himself Knows Not the Mind of Man,’ How Possibly Can Judges Know the Motivation of Legislators?” 15 San Diego L.Rev. 1167, 1171 (1978).Rape.
SECT. 15. If any man shall ravish any maid, or single woman, committing carnal copulation with her by force, against her own will; that is above the age of ten years, he shall be punished either with death or with some other grievous punishment according to circumstances, as the judges or general court shall determine. [1649.]
Rape of a child.
SECT. 16. Forasmuch as carnal copulation with a woman child, under the age of ten years, is a more heinous sin than with one of more years, as being more inhumane and unnatural in itself, and more perilous to the life and well being of the child:
It is therefore ordered by this court and the authority thereof, that whosoever he be shall commit or have carnal copulation with any such child under ten years old, and be legally convicted thereof, he shall be put to death. [October, 1669.]
Id. at 60. And in that same volume is reprinted Prov.St.1697, c. 18, entitled “An act against ravishment or rape,” which first accomplished the consolidation of the above two colony laws into much the same form as they presently appear:
Be it enacted by the lieutenant governor, council and representatives, in general court assembled, and by the authority of the same, that if any man shall ravish any woman, committing carnal copulation with her by force against her will, or if any man shall unlawfully and carnally know and abuse any woman-child under the age of ten years, every person and persons offending in either of the cases beforementioned, being thereof convicted, shall be accounted felons, and shall be adjudged to suffer the pains of death, as in cases of felony. Id. at 301-02.