Jones v. StateJones v. State
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee in No. 92-134.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen.,
Billy H. Nolas, Public Defender, and Julie D. Naylor, Asst. Public Defender, Ocala, for appellees in No. 92-1876.
David A. Henson of Kirkconnell, Lindsey & Snure, Winter Park, for amicus FACDL in No. 92-1876.
HARRIS, Judge.
We have for review the companion appeals in the cases of State v. Erik Rodriguez and Steven Williams (No. 92-1876) in which
ISSUE
The issue involved in these companion cases is whether the expansive constitutional right of privacy of minors our supreme court announced in In re T.W., 551 So.2d 1186 (Fla. 1989), renders unconstitutional that portion of
STANDING
The State urges that the young men involved in these appeals lack standing to assert the young women‘s rights to privacy even if such rights exist. We reject this argument. The State relies on State v. Phillips, 575 So.2d 1313 (Fla. 4th DCA 1991), rev. denied, 589 So.2d 292 (Fla. 1991). We disagree with the analysis of Phillips. We find that the boyfriend who assists the minor child in achieving her constitutional right to engage in sexual activity (if, in fact, she has such a right) has the same standing as the doctor who assists the minor in obtaining her constitutionally protected right to have an abortiоn. Suppose, for example, the State, while recognizing the minor‘s right to an abortion, made it a second degree felony for any doctor to perform an abortion on a minor without parental consent. Would the State urge that the doctor could not assert as a defense the minor‘s right to an abortion? We think not. And even if the State took such a position, we doubt any court would lend it credence.
We hold, therefore, that the young men‘s position is similar to the appellants’ in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and that they have standing to raise the alleged constitutional rights of their sexual partners as a defense to their prosecution.
FACTS
The relevant facts in the Rodriguez and Williams prosecutions are without dispute. Two young women, ages 14, had consensual sex with young men, ages 19 and 20. Neither of the “victims” wanted to prosecute;1 the charges were initiated by family members (mother or sister). At least one of the young women desired (intended) to get pregnant and have a child. In the Jones prosecution, the defendant was denied the opportunity to raise consent as a defense.
MERITS
Our oath and the law require that we apply the law as determined by the Florida Supreme Court. This obligation is not based on the premise that we agree with the supreme court‘s opinion. Rather, it is based on the concept of precedent and the relative standing of the courts in the judicial hierarchy. This obligation not only requires us to apply such law in cases with similar facts or issues specifically covered by the supreme court‘s opinion, but also to give such effect to its opinion on related issues as appears intended by the supreme court. However, particularly because the supreme court must ultimately decide this
If this case involved abortion, the decision would be simple. The supreme court has ruled that a minor (of any age if such minor can become pregnant) has the constitutional right to an abortion without the parents’ knowledge or consent. But this case does not involve abortion. Instead, the related issue before us is whether a minor under sixteen years of age has a right, protected by Florida‘s constitutional right of privacy, to engage in consensual sex. While this issue is not identical to the abortion issue before the court in In re T.W., we recognize that although it may be distinguished, it may be a distinction without a difference. That is why we certify the issue to the supreme court.
If the supreme court‘s opinion is vague, we are free to search for its intent. While the decision in T.W. regarding a minor‘s right to have an abortion is not at all vague, there are different policy concerns raised by the related issue of a minor‘s right to engage in consensual sex. If the decision in T.W. does not apply, it must bе because of these differing policy concerns.2 In that case and in sweeping language, the supreme court mandated that Florida‘s constitutional right of privacy be construed very broadly and that any constitutional rights of adults must also apply to minors unless the State meets a stringent burden of establishing a compelling state interest to restrict such constitutional rights:
The citizens of Florida opted for more protection from governmental intrusion when they approved
article I, section 23, of the Florida Constitution . This аmendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.
In re T.W. at 1191-92, quoting Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla. 1985).
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The next question to be addressed is whether this freedom of choice concerning abortion extends to minors. We conclude that it does, based on the unambiguous language of the amendment: The right of privacy extends to “[e]very natural person.” Minors are natural persons in the eyes of the law and “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, ... possess constitutional rights.” ...
Common sense dictates that a minor‘s rights are not absolute; in order to overcome these constitutional rights, a statute must survive the stringent test announced in Winfield: The state must
prove that the statute furthers a compelling state interest through the least intrusive means.
In re T.W., 551 So.2d at 1193.
The first question, then, is whether adults have a constitutional right to engage in sex without marriage. A few short years ago, the answer would have been different. Fornication was statutorily prohibited in Florida until 1979, when our supreme court ruled the statute unconstitutional. This holding was based on equal protection rather than right of privacy concerns. Purvis v. State, 377 So.2d 674 (Fla. 1979). The legislature then repealed the fornication statute in 1983.
If, then, a sixteen-year-old girl has a right to engage in consensual sex,3 what compelling state interest can deny this “right” to а fifteen, fourteen or thirteen-year-old girl? The State‘s only response to this question is one similar to that considered by the United States Supreme Court in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), rehearing denied, 444 U.S. 887, 100 S.Ct. 185, 62 L.Ed.2d 121 (1979). That is, the State‘s compelling interest arises from
... the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.
Bellotti, 443 U.S. at 634, 99 S.Ct. at 3043.4
We are impressed with this argument. We agree with the Bellotti court that “during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” (443 U.S. at 635, 99 S.Ct. at 3044) and that the role of parents in “teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.” 443 U.S. at 638, 99 S.Ct. at 3045.
The Florida Supreme Court, in In re T.W., held that these considerations are relevant only under the relaxed standard of “significant state interest” applied by the United States Supreme Court to the United States Constitution. While our supreme court agreed that protecting minors and preserving family unity were “worthy objectives,” the court held that they were not sufficiently compelling, under our more stringent “compelling state interest” standard, to override Florida‘s privacy amendment insofar as a minor‘s right to an abortion is concerned. In light of this holding, the State‘s similar argument in the case before us seems already to have been rejected by our supreme court in In re T.W. Specifically, the T.W. court expressly held that the age or maturity of the minor to determine “the most profound and intimate” question concerning one‘s body is immaterial in the constitutional sense under our standard of review.
We, in good faith, suggest that the differing policy concerns accompanying the issue before us will result in the supreme court‘s modification of the apparently conflicting broad language in T.W.5 There was a finality and an urgency in the decision
In contrast, the decision whether or not to have consensual sex is neither final nor urgent. Parents (and the state) should be рermitted to urge (and enforce) restraint in an to attempt to ensure that the onset of sexual activity is coupled with the maturity to cope with the consequences. Hopefully this adult and government involvement will reduce the number of young women forced to face the dilemma of choosing between abortion and pregnancy. We recognize that Florida‘s age of consent, under modern morality, may be tоo high. But this, in the first analysis, is the legislature‘s prerogative.
Because we believe that the minor‘s right to consensual sex is not substantially burdened by requiring a delayed exercise of such right (similar to voting, drinking and driving), we uphold the constitutionality of
Because of the importance of this issue beyond the boundaries of this court and because we may have read less into In re T.W. than intended by the supreme court, we certify the issue of these aрpeals to the Florida Supreme Court as one of exceptional importance.
COBB, J., concurs specially in result, with opinion.
W. SHARP, J., concurs specially in result, with opinion.
COBB, Judge, concurring specially.
Despite the expansive language employed by the majority opinion in In re T.W., 551 So.2d 1186 (Fla. 1989), I do not believe that the Florida Supreme Court intended to invalidate
Accordingly, I concur with the majority result and with its conclusion thаt the defendants
W. SHARP, Judge, concurring specially,
Since the majority opinion finds the defendants have standing to raise the underage persons’ claimed constitutional privacy rights, I concur that the issue of whether In re T.W., 551 So.2d 1186 (Fla. 1989) invalidates prosecutions of persons pursuant to
In re T.W., contains broad language which gives some credence to the appellants’ positions that since pregnant minоrs cannot be prohibited from consenting to have an abortion, it follows they cannot be legally prohibited from consenting to have sex. The court said in T.W., that the right to procreate, and by implication, the right to have sex for fun, falls within Florida‘s constitutional right of privacy protection,
In order to be able to constitutionally impinge by stаtute on the free exercise of such a fundamental right, the court said in T.W., that the state must show it has a “compelling state interest” and that such interest is furthered by the challenged statute. It found no compelling state interest in the statute‘s requirement that a minor obtain parental or court-substituted consent prior to having an abortion. This was partially because the court found the minor‘s health and well being were not furthered by the statute. Compliance with the statute could have prevented a minor from having an abortion early in the pregnancy when such procedure was least risky for the minor‘s health, and far less risky than giving birth.
Further, the court said in T.W., that the Legislature had taken inconsistent positions on the issue of requiring parental consent for decisions a pregnant minor was allowed to make for her own medical care while pregnant and that of her child, after its birth. In those contexts, which could be serious and life-threatening, the minor was empowered to make decisions regarding medical treatment without her parent‘s consent. The court concluded, based in such inconsistency, “[t]he selective approach employed by the Legislature [regarding requiring parental consent] evidences the limited nature of the ... interest being furthered by these provisions.” T.W. at 1195, citing Ivey v. Bacardi Imports Co., Inc., 541 So.2d 1129, 1139 (Fla. 1989).
In contrаst, Florida has long adhered to a policy of protecting minors from sexual exploitation and abuse. The roots of this policy can be found in an early English statute making it a felony to have “carnal knowledge” of a woman child under ten years of age. The statute was old enough to be accepted in the United States as part of the common law. Wharton‘s Criminal Law Vol. II § 291 (4th ed. 1978). Such laws, known as “statutory rape,” exist in every state. Although the ages of the protected child may vary, from state to state, and for the degree of crime within a state, all have in common the fact that the consent of the underage child is not relevant as a defense.
Whoever ravishes and carnally knows a female of the age of 10 years or more, by force and against her will, оr unlawfully or carnally knows and abuses a female child under the age of 10 years, shall be punished by death... .
A version of this statute was in effect in Florida until the sexual battery statute was passed in 1975.4 Section 794.011 makes it a felony of varying degrees of seriousness to commit a sexual battery on a person under the age of twelve, for which consent is no defense.
In 1943, the Legislature broadened its policy of protecting minors by passing
Also demonstrating Florida‘s policy of expandеd protection of minors from harmful explicit sexual conduct are other statutes which deal with a variety of subjects. See, e.g.,
I agree with Judge Harris that the State of Florida has a compelling interest in protecting its children from sexual activity and exploitation before their minds and bodies have sufficiently matured to make it appropriate, safe and healthy for them. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Ferris v. Santa Clara County, 891 F.2d 715 (9th Cir.1989), cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990); Ravin v. State, 537 P.2d 494 (Alaska 1975). This compelling state interest has been long adhered to in Florida, and has been consistently broadеned in scope.
Thus, in my view, the defendants in these cases have failed to demonstrate any constitutional invalidity with