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Court Discusses Issues of Discrimination and Equal Protection


The Facts:

Sometime in 1977, defendant-one was indicted for the crime of Rape in the Third Degree, a criminal law violation; that defendant, over twenty-one years of age, engaged in a sexual intercourse with a female less than seventeen years of age.

A New York Criminal Lawyer said that sometime in March of 1978, defendant-two was under an eight count indictment; two counts of the indictment charged crimes of Rape in the First Degree; that defendant engaged in sexual intercourse with two females who were less than eleven years old.

Sometime in June of 1978, just prior to trial, defendant-one moved to dismiss the indictment relying upon the denial of Certiorari of the United States Supreme Court in the case of Meloon.

On 21 June 1978, defendant-two also moved to dismiss the two counts of his indictment which charged Rape in the First Degree, relying also on the case of Meloon.

The Issues:

Are the applicable Penal Law provisions in violation of the equal protection clause as mandated by the State or Federal Constitution? Are the applicable Penal Law provisions unconstitutional that would warrant a dismissal of the charges against defendants?

The Ruling:

In the case of Meloon, as cited by defendants, the United States Court of Appeals affirmed a grant of a writ of Habeas corpus of the United States District Court on the ground that the statutory rape law, a pre-1975 rape statute, under which Meloon was convicted, violated the equal protection clause of the Fourteenth Amendment.

Here, the legal issues before the Court, on the motions of defendants to dismiss the said counts in the respective indictments are basically the same, the alleged unconstitutional provision of singling out males as the only perpetrators of the crime of rape with only females as the victims, and whether §§ 130.25(2) and 130.35(3) of the Penal Law, in so providing, rest upon an invalid gender-based classification which violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and § 11 of Article I of the New York Constitution.

The People assert that the Meloon case is “bad law”, poorly reasoned and unconvincing; that it has been specifically rejected in at least two very recent state decisions of the court.

On the contrary, defendant argues that the proof of the unconstitutionality of the New Hampshire statute is that New Hampshire changed its sex law in 1975, to make it sexually neutral.

Here, defendant-one is charged with third degree rape in allegedly having sexual intercourse with a female less than seventeen years old in his Collegetown apartment. A Long Island Criminal Lawyer said force is not alleged directly, the allegations stating only, that complainant was too shocked and upset by the defendant’s behavior to resist effectively. Defendant-two on the other hand is charged with First Degree Rape in allegedly having sexual intercourse with his daughter and another female, both under the age of eleven years. Force also is not an issue under this indictment.

The threshold question, in applying the case of Meloon, or any other case authority to the facts and statutes at bar, is the level of scrutiny to be applied to a gender-based classification. The statutes, which are in issue in this case, both define rape as an exclusively male crime, without any concomitant provision for commission by a female. Section 130.35(3) of the Penal Law states: A male is guilty of rape in the first degree when he engages in sexual intercourse with a female who is less than eleven years old. Similarly, Section 130.25(2) of the Penal Law provides: A male is guilty of rape in the third degree when, being twenty-one years old or more, he engages in sexual intercourse with a female less than seventeen years old.

There appears to be different approaches in the review of legislative classification under the Constitutional question of discrimination and equal protection. First is the rational basis test or minimal rationality which requires some rational and articulable reason. This is the traditional test. Second is the strict scrutiny test which is applied to “suspect” statutes which discriminate on the basis of race, alienage or nationality. To pass constitutional muster under strict scrutiny, the statute must be necessary to accomplish some legitimate state objective by the least restrictive means possible.

In the similar case of Craig, the Court reviewed a statute which made it a criminal offense to sell beer to men under 21 but not to females unless under 18. A New York Sex Crimes Lawyer said the Court held the statute unconstitutional saying that gender-based legislation is subject to a “middle tier” approach which brings this legislative classification under closer scrutiny than the traditional basis test but does not require the “suspect” classification test. Although the United States Supreme Court has never spoken with respect to the level of analysis to be applied to statutes of the type which New York presently has concerning statutory rape, it is clear that a higher level of scrutiny is appropriate than the traditional rational basis equal protection test when dealing with gender-based classifications.

In the Craig case, the Court applied the standard of the court in the Reed case and subsequent cases: To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

In the Meloon case, the United States Court of Appeals noted the heightened level of scrutiny which is appropriate to gender-based classifications: The statute at issue in this case is a classification based on sex. As such it requires more heightened scrutiny than would be applied to completely non-suspect legislation, but less stringent scrutiny than is typically applied to racial classifications. Moreover, since a criminal statute is involved, the standards governing gender classification must be applied with special sensitivity. What was meant by “special sensitivity” is unclear but it appears to be acceptance of an intermediate level of scrutiny, greater than rational basis and less than strict, adopted by the Supreme Court in the Reed case.

As a result, to the extent that the special sensitivity approach of the Court in the Meloon case is consistent with the mandate of the Supreme Court in the Reed case, the herein Court is in agreement with the level of sensitivity applied in that case. And in order to pass constitutional muster, the gender-based classification in the instant case must serve at least one important governmental objective and must be substantially related to the achievement of that objective.

Thus, the essential question is whether the New York statutes serve any important governmental objective, and if so, whether the objectives sought to be achieved are fairly and substantially related to the gender-based classification which the statutes employ.

In addressing the issue of the constitutionality of the first degree rape statute in the similar case of Reilly, the Court held that protection of females from rape is a legitimate and essential legislative objective. Since only males can physiologically perpetrate that crime, then the limitation of culpability to males constitutes a rational classification directly related to the objective of the criminal penalty. Clearly, the usual sordid state of facts in a rape situation rationally justifies the sex classification by singling out males in the statute. The equality of the sexes expresses a societal goal, and not a physical metamorphosis. While the classification herein is made on the basis of sex, and while the Court is loath to condone the continuance of sexual discrimination, the Court concludes that the classification bears a fair, reasonable and substantial relationship to the object of the rape statute. All persons similarly classified are treated alike, and the statute does not violate the Equal Protection Clause of either the New York or United States Constitutions. While the issue confronting the court in the Reilly case involved forcible rape, the same court was also faced with the constitutionality of § 130.35(3), the same statutory provision as at bar, in the case Fauntleroy. The court again upheld the constitutionality of § 130.35(3) against an Equal Protection attack incorporating the opinion set forth in the Reilly case. While the Court would not go so far as to say that females are physiologically incapable of committing the crime of rape, the touchstone of the governmental justification lies in the social malfeasance which the statute was originally directed to cure. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. As stated in another court ruling, the Legislature is free to recognize degrees of harm and it may confine its restriction to those classes of cases where the need is deemed to be clearest.

When the New York Legislature passed the subject provisions of the law, it presumably intended to prevent older males from sexually pursuing young, psychologically dependent females. There was no reason to believe, nor is there now, that a social malady exists with respect to older women sexually pursuing young males, especially within the age differentials established by the Legislature. It is interesting to note that the rape statute which was declared unconstitutional in the Meloon case had been amended by the New Hampshire Legislature, prior to the disposition of the case, removing the gender-based distinction and thereby giving inspiration to the United States Court of Appeals. However, while a rational basis exists upon which to draw a distinction between males and females under New York’s statutory scheme, there must be justifiable governmental objectives which the legislation fosters under the Reed case.

Contrary to the holding in the Meloon case, the court is of the opinion that the objective protecting females from physical and psychological damage, is a sufficient governmental objective under the Reed case to support the constitutionality of § 130.35(3) when viewed in conjunction with the fact that males are more likely to commit the offense against females. And, in addition, that another objective, to protect females from getting pregnant, is sufficient to sustain the constitutionality of § 130.25(2) under the Reed case.

It is difficult to establish the intent of the Legislature in passing either of these rape statutes, but it is reasonable to assume that the prevention of pregnancy was an objective. Further, the constitutionality may be premised upon the objective of preventing psychological and physical damages to females under age 11.

In sum, the Court finds that the subject provisions of the Penal Law are not in violation of the equal protection clause of the State or Federal Constitution and are Constitutional; both statutes contain a gender-based classification which serves governmental objectives, with classification substantially related to the achievement of those objectives; the defendants’ motions are denied in all respects.

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