450 U.S. 464
March 23, 1981, Decided


JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL joined.

The question presented in this case is whether California's "statutory rape" law, § 261.5 of the Cal. Penal Code Ann., violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "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 statute thus makes men alone criminally liable for the act of sexual intercourse.

In July 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17 1/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16 1/2-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner's initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender.

The fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct.  Precisely why the legislature desired that result is of course somewhat less clear. This Court has long recognized that "[inquiries] into congressional motives or purposes are a hazardous matter," and the search for the "actual" or "primary" purpose of a statute is likely to be elusive. Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex.

The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, have significant social, medical, and economic consequences for both the mother and her child, and the State.  Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.  And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.

We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.

The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female.  We hold that such a statute is sufficiently related to the State's objectives to pass constitutional muster.

Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes.

We are unable to accept petitioner's contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. K

In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement.

The question whether a statute is substantially related to its asserted goals is at best an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here.

There remains only petitioner's contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that as between two persons under 18, the male is the culpable aggressor We find petitioner's contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant since young men are as capable as older men of inflicting the harm sought to be prevented.

In upholding the California statute we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females.  To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts.

Accordingly the judgment of the California Supreme Court is Affirmed.

JUSTICE BLACKMUN, concurring in the judgment.

I note, also, that § 261.5 of the California Penal Code is just one of several California statutes intended to protect the juvenile. JUSTICE STEWART, in his concurring opinion, appropriately observes that § 261.5 is "but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity." I think, too, that it is only fair, with respect to this particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling participant in at least the initial stages of the intimacies that took place the night of June 3, 1978.  Petitioner's and Sharon's nonacquaintance  with each other before the incident: their drinking; their withdrawal from the others of the group; their foreplay, in which she willingly participated and seems to have encouraged; and the closeness of their ages (a difference of only one year and 18 days) are factors that should make this case an unattractive one to prosecute at all, and especially to prosecute as a felony, rather than as a misdemeanor chargeable under § 261.5. But the State has chosen to prosecute in that manner, and the facts, I reluctantly conclude, may fit the crime.

Sharon at the preliminary hearing testified as follows:

"Q [by the Deputy District Attorney]. On June the 4th, at approximately midnight -- midnight of June the 3rd, were you in Rohnert Park?

"A [by Sharon]. Yes.

"Q. Is that in Sonoma County?

"A. Yes.

"Q. Did anything unusual happen to you that night in Rohnert Park?

"A. Yes.

"Q. Would you briefly describe what happened that night? Did you see the defendant that night in Rohnert Park?

"A. Yes.

"Q. Where did you first meet him?

"A. At a bus stop.

"Q. Was anyone with you?

"A. My sister.

"Q. Was anyone with the defendant?

"A. Yes.

"Q. How many people were with the defendant?

"A. Two.

"Q. Now, after you met the defendant, what happened?

"A. We walked down to the railroad tracks.

"Q. What happened at the railroad tracks?

"A. We were drinking at the railroad tracks and we walked over to this bush and he started kissing me and stuff, and I was kissing him back, too, at first. Then, I was telling him to stop --

"Q. Yes.

"A. -- and I was telling him to slow down and stop. He said, 'Okay, okay.' But then he just kept doing it. He just kept doing it and then my sister and two other guys came over to where we were and my sister said -- told me to get up and come home. And then I didn't --

"Q. Yes.

"A. -- and then my sister and --

"Q. All right.

"A. -- David, one of the boys that were there, started walking home and we stayed there and then later --

"Q. All right.

"A. -- Bruce left Michael, you know.

"The Court: Michael being the defendant?

"The Witness: Yeah. We was laying there and we were kissing each other, and then he asked me if I wanted to walk him over to the park; so we walked over to the park and we sat down on a bench and then he started kissing me again and we were laying on the bench. And he told me to take my pants off.

"I said, 'No,' and I was trying to get up and he hit me back down on the bench and then I just said to myself, 'Forget it,' and I let him do what he wanted to do and he took my pants off and he was telling me to put my legs around him and stuff --

. . . .

"Q. Did you have sexual intercourse with the defendant?

"A. Yeah.

"Q. He did put his penis into your vagina?

"A. Yes.

"Q. You said that he hit you?

"A. Yeah.

"Q. How did he hit you?

"A. He slugged me in the face.

"Q. With what did he slug you?

"A. His fist.

"Q. Where abouts in the face?

"A. On my chin.

"Q. As a result of that, did you have any bruises or any kind of an injury?

"A. Yeah.

"Q. What happened?

"A. I had bruises.

"The Court: Did he hit you one time or did he hit you more than once?

"The Witness: He hit me about two or three times.

. . . .

"Q. Now, during the course of that evening, did the defendant ask you your age?

"A. Yeah.

"Q. And what did you tell him?

"A. Sixteen.

"Q. Did you tell him you were sixteen?

"A. Yes.

"Q. Now, you said you had been drinking, is that correct?

"A. Yes.

"Q. Would you describe your condition as a result of the drinking?

"A. I was a little drunk." App. 20-23.


"Q. Did you go off with Mr. M. away from the others?

"A. Yeah.

"Q. Why did you do that?

"A. I don't know. I guess I wanted to.

"Q. Did you have any need to go to the bathroom when you were there.

"A. Yes.

"Q. And what did you do?

"A. Me and my sister walked down the railroad tracks to some bushes and went to the bathroom.

"Q. Now, you and Mr. M., as I understand it, went off into the bushes, is that correct?

"A. Yes.

"Q. Okay. And what did you do when you and Mr. M. were there in the bushes?

"A. We were kissing and hugging.

"Q. Were you sitting up?

"A. We were laying down.

"Q. You were lying down. This was in the bushes?

"A. Yes.

"Q. How far away from the rest of them were you?

"A. They were just bushes right next to the railroad tracks. We just walked off into the bushes; not very far.

. . . .

"Q. So your sister and the other two boys came over to where you were, you and Michael were, is that right?

"A. Yeah.

"Q. What did they say to you, if you remember?

"A. My sister didn't say anything. She said, 'Come on, Sharon, let's go home.'

"Q. She asked you to go home with her?

"A. (Affirmative nod.)

"Q. Did you go home with her?

"A. No.

"Q. You wanted to stay with Mr. M.?

"A. I don't know.

"Q. Was this before or after he hit you?

"A. Before.

. . . .

"Q. What happened in the five minutes that Bruce stayed there with you and Michael?

"A. I don't remember.

"Q. You don't remember at all?

"A. (Negative head shake.)

"Q. Did you have occasion at that time to kiss Bruce?

"A. Yeah.

"Q. You did? You were kissing Bruce at that time?

"A. (Affirmative nod.)

"Q. Was Bruce kissing you?

"A. Yes.

"Q. And were you standing up at this time?

"A. No, we were sitting down.

. . . .

"Q. Okay. So at this point in time you had left Mr. M. and you were hugging and kissing with Bruce, is that right?

"A. Yeah.

"Q. And you were sitting up.

"A. Yes.

"Q. Was your sister still there then?

"A. No. Yeah, she was at first.

"Q. What was she doing?

"A. She was standing up with Michael and David.

"Q. Yes. Was she doing anything with Michael and David?

"A. No, I don't think so.

"Q. Whose idea was it for you and Bruce to kiss? Did you initiate that?

"A. Yes.

"Q. What happened after Bruce left?

"A. Michael asked me if I wanted to go walk to the park.

"Q. And what did you say?

"A. I said, 'Yes.'

"Q. And then what happened?

"A. We walked to the park.

. . . .

"Q. How long did it take you to get to the park?

"A. About ten or fifteen minutes.

"Q. And did you walk there?

"A. Yes.

"Q. Did Mr. M. ever mention his name?

"A. Yes."

JUSTICE BRENNAN, with whom JUSTICES WHITE and MARSHALL join, dissenting [omitted].

JUSTICE STEVENS, dissenting.

Local custom and belief -- rather than statutory laws of venerable but doubtful ancestry -- will determine the volume of sexual activity among unmarried teenagers.  The empirical  evidence cited by the plurality demonstrates the futility of the notion that a statutory prohibition will significantly affect the volume of that activity or provide a meaningful solution to the problems created by it.  Nevertheless, as a matter of constitutional power, unlike my Brother BRENNAN, I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse. The societal interests in reducing the incidence of venereal disease and teenage pregnancy are sufficient, in my judgment, to justify a prohibition of conduct that increases the risk of those harms.

My conclusion that a nondiscriminatory prohibition would be constitutional does not help me answer the question whether a prohibition applicable to only half of the joint participants in the risk-creating conduct is also valid. It cannot be true that the validity of a total ban is an adequate justification for a selective prohibition; otherwise, the constitutional objection to discriminatory rules would be meaningless. The question in this case is whether the difference between males and females justifies this statutory discrimination based entirely on sex.

The fact that the Court did not immediately acknowledge that the capacity to become pregnant is what primarily differentiates the female from the male  does not impeach the validity of the plurality's newly found wisdom. I think the plurality is quite correct in making the assumption that the joint act that this law seeks to prohibit creates a greater risk of harm for the female than for the male. But the plurality surely cannot believe that the risk of pregnancy confronted by the female -- any more than the risk of venereal disease confronted by males as well as females -- has provided an effective deterrent to voluntary female participation in the risk-creating conduct. Yet the plurality's decision seems to rest on the assumption that the California Legislature acted on the basis of that rather fanciful notion.

In my judgment, the fact that a class of persons is especially vulnerable to a risk that a statute is designed to avoid is a reason for making the statute applicable to that class. The argument that a special need for protection provides a rational explanation for an exemption is one I simply do not comprehend. A hypothetical racial classification will illustrate my point. Assume that skin pigmentation provides some measure of protection against cancer caused by exposure to certain chemicals in the atmosphere and, therefore, that white employees confront a greater risk than black employees in certain industrial settings. Would it be rational to require black employees to wear protective clothing but to exempt whites from that requirement? It seems to me that the greater risk of harm to white workers would be a reason for including them in the requirement -- not for granting them an exemption.

In this case, the fact that a female confronts a greater risk of harm than a male is a reason for applying the prohibition to her -- not a reason for granting her a license to use her own judgment on whether or not to assume the risk. Surely, if we examine the problem from the point of view of society's interest in preventing the risk-creating conduct from occurring at all, it is irrational to exempt 50% of the potential violators.  And, if we view the government's interest as that of a parens patriae seeking to protect its subjects from harming themselves, the discrimination is actually perverse. Would a rational parent making rules for the conduct of twin children of opposite sex simultaneously forbid the son and authorize the daughter to engage in conduct that is especially harmful to the daughter? That is the effect of this statutory classification.

If pregnancy or some other special harm is suffered by one of the two participants in the prohibited act, that special harm no doubt would constitute a legitimate mitigating factor in deciding what, if any, punishment might be appropriate in a given case. But from the standpoint of fashioning a general preventive rule -- or, indeed, in determining appropriate punishment when neither party in fact has suffered any special harm -- I regard a total exemption for the members of the more endangered class as utterly irrational.

In my opinion, the only acceptable justification for a general rule requiring disparate treatment of the two participants in a joint act must be a legislative judgment that one is more guilty than the other. The risk-creating conduct that this statute is designed to prevent requires the participation of two persons -- one male and one female.  In many situations it is probably true that one is the aggressor and the other is either an unwilling, or at least a less willing, participant in the joint act. If a statute authorized punishment of only one participant and required the prosecutor to prove that that participant had been the aggressor, I assume that the discrimination would be valid. Although the question is less clear, I also assume, for the purpose of deciding this case, that it would be permissible to punish only the male participant, if one element of the offense were proof that he had been the aggressor, or at least in some respects the more responsible participant in the joint act. The statute at issue in this case, however, requires no such proof. The question raised by this statute is whether the State, consistently with the Federal Constitution, may always punish the male and never the female when they are equally responsible or when the female is the more responsible of the two.

It would seem to me that an impartial  lawmaker could give only one answer to that question. The fact that the California Legislature has decided to apply its prohibition only to the male may reflect a legislative judgment that in the typical case the male is actually the more guilty party. Any such judgment must, in turn, assume that the decision to engage in the risk-creating conduct is always -- or at least typically -- a male decision. If that assumption is valid, the statutory classification should also be valid. But what is the support for the assumption? It is not contained in the record of this case or in any legislative history or scholarly study that has been called to our attention. I think it is supported to some extent by traditional attitudes toward male-female relationships. But the possibility that such a habitual attitude may reflect nothing more than an irrational prejudice makes it an insufficient justification for discriminatory treatment that is otherwise blatantly unfair. For, as I read this statute, it requires that one, and only one, of two equally guilty wrongdoers be stigmatized by a criminal conviction.

Nor do I find at all persuasive the suggestion that this discrimination is adequately justified by the desire to encourage females to inform against their male partners. Even if the concept of a wholesale informant's exemption were an acceptable enforcement device, what is the justification for defining the exempt class entirely by reference to sex rather than by reference to a more neutral criterion such as relative innocence? Indeed, if the exempt class is to be composed entirely of members of one sex, what is there to support the view that the statutory purpose will be better served by granting the informing license to females rather than to males? If a discarded male partner informs on a promiscuous female, a timely threat of prosecution might well prevent the precise harm the statute is intended to minimize.

Finally, even if my logic is faulty and there actually is some speculative basis for treating equally guilty males and females differently, I still believe that any such speculative justification would be outweighed by the paramount interest in evenhanded enforcement of the law. A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must govern impartially.