¶1Opinion Concurring in Part — Dissenting in Part
¶2I concur in the opinion of the majority except insofar as it announces a concept of a rebuttable presumption *484arising from the trial judge talcing judicial notice. This approach would leave the litigants in a quandary as to if and when such notice has been taken and as to where the “burden of producing evidence” lies. Assuming that sex is a legitimate basis for legislative classification with respect to the commercialization of sexual activity (a proposition which I accept only with considerable difficulty) in the absence of a special plea or the presentation of some evidence that the defendant’s sex is other than that alleged in the affidavit or indictment, it is absurd, to me, to require the State to offer evidence upon the issue. I liken it to the condition of sanity, without which there can be no intent to commit a crime requiring mens rea. Upon a charge of such a crime, the State is not required to prove the defendant’s sanity, unless the defendant places the matter in issue. I would treat the matter of proof of sex in such cases in the same manner.
¶3I would grant transfer and affirm the judgment of the trial court.
¶4Dissenting Opinion
¶5I find that I must dissent from the majority in this case since I cannot agree with its construction of a presumption in all crimes where an element of the offense is the sex of the defendant, and because I believe this statute violates both the Due Process and Equal Protection Clauses of the Constitution.
¶6In its opinion the majority identifies the “most fundamental element” of this crime as the sex of the defendant and then proceeds to relieve the State from proof of this element by creating a judicial presumption. In criminal cases a court should be extremely reluctant to create a presumption which has the effect of carrying the State’s case to the jury. The Legislature has included as one of the elements of the crime defined at IC 1971, 35-80-1-1, being Burns § 10-4220, that the defendant be a female. A presumption that in effect abrogates the State’s responsibility to prove this element of the crime is contrary to one of the basic principles of our legal *485system; namely, that the State be required to prove every element of a crime as defined by the Legislature.
¶7Moreover there is no overriding necessity to create a presumption of femininity here. It is a simple matter for the State to carry its burden of proving the sex of the defendant by introducing affirmative evidence on the point in the same manner in which other elements of the crime are established. In Howard v. State (1971), 257 Ind. 166, 272 N. E. 2d 870, this Court accepted as sufficient the direct testimony of a non-expert lay witness as to her opinion of the defendant’s sex when that was an element of the crime charged. It is highly unlikely that the State should have any more difficulty today identifying the sex of a person than it did at the time of the Howarddecision. The accused has been observed and arrested by police officers, transported around, often subjected to search of quarters and person, taken to jail and subjected to an inventory of personal belongings and required to don prison garb. It is inevitable that some official in these channels (and therefore readily available as a witness to the State at trial) will have made sufficient observation of the accused to render admissible his or her opinion as to the sex of the accused. Evidence of sex which would be sufficient to warrant a finding of guilt beyond a reasonable doubt is therefore readily, cheaply and obviously available to the State. I cannot conceive of any legitimate reasons why we should treat this particular element of the crime differently than any of the other legislatively specified elements required to be established in the record by affirmative evidence.
¶8I also agree with appellant that this statute, which punishes a female for living or frequenting a house of ill fame, violates the Due Process Clause. It is a fundamental element of due process that criminal statutes enacted by the Legislature must clearly define the behavior to be prohibited
¶9The United States Supreme Court in a unanimous opinion in the case of Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110, considered a city ordinance which declared one who, among other pursuits, *487habitually spent his time “frequenting houses of ill fame” to be a vagrant and subjected him to ninety days in jail. The court found that such an ordinance was vague, overbroad and made activities criminal which were not harmful to society in themselves. I believe that portion of Burns § 10-4220 under consideration here is analoguous to the ordinance found in Papaehristou.
¶10Lastly, I believe the majority’s treatment of appellant’s equal protection claim is also erroneous. In its opinion the majority upholds this statute’s limitation of criminality only to females who frequent houses of ill fame by conjecturing that the Legislature must have made a policy decision, “that prostitution is a significant social problem only among females”. Actually a companion statute found at IC 1971, 35-1-87-2, being Burns § 10-4219, makes it a crime for a male person to frequent or visit a house of ill fame. Obviously the majority’s assumption that the Legislature has decided this behavior is only of significant social importance when committed by females is erroneous since the same behavior is made criminal in another statute when undertaken by males.
¶11In my view, however, this does not end the problem raised by the statutes in terms of the Equal Protection Clause since Burns § 10-4219 subjects a male who frequents a house of ill fame to a misdemeanor sentence of sixty days in jail, while Burns § 10-4220 punishes the same crime when committed by a female as a felony with a prison sentence of two to five years.
¶12I agree with the majority that the United States Supreme Court has not as yet found that legislation which creates classes purely on the status of sex to be suspect and hence subject to strict judicial scrutiny. Reed v. Reed (1971), 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225.
“A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike.’ ” 404 U.S. at 76.
¶13These statutes clearly provide dissimilar treatment for men and women similarly situated. Surely subjecting one class of citizens to a punishment over thirty times as harsh as another class committing the same crime simply on the basis of the defendant’s sex cannot withstand even the slightest gaze by the Equal Protection Clause. This is the very kind of arbitrary, unreasonable and capricious legislation forbidden by the Constitution.
¶14In Morgan v. State (1913), 179 Ind. 300, 101 N. E. 6, this Court found a statute which provided that males were automatically committed to an institution for the criminally insane when they were found not guilty of a violent crime by reason of insanity, while females similarly acquitted were afforded a commitment hearing, to be a classification repugnant to the Equal Protection Clause. I believe that Morgan is stare decisis in this State for the proposition that differentiation in the disposition or sentencing of those found in need of commitment or incarceration cannot be made purely on the basis of sex. See also Commonwealth v. Daniel (1968), 430 Pa. 642, 243 A. 2d 400; Lamb v. Brown, 456 F. 2d 18 (10th Cir., 1972); U.S. ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn., 1968). For these reasons I respectfully dissent from the opinion of the majority.
¶15Note. — Reported in 306 N. E. 2d 95.
¶16. The problem of vagueness in the term “house of ill fame” is emphasized by the majority’s treatment of this issue. In response to appellant’s contention that “house of ill fame” is imprecise and may *486include such places as massage parlors or bookmaking operations the majority states that these places may be within the meaning of the phrase, “but only if prostitution, as described by the statute, were practiced therein”, thus clearly implying that the term “house of ill fame” is restricted to places where prostitution takes place. However, in the case of State v. Griffin (1948), 226 Ind. 279, 79 N.E.2d 537, this Court specifically held that the term “house of ill fame” includes not only houses of prostitution but additionally bawdy houses and gaming houses.
¶17. However, in Frontiero v. Richardson (1973), 93 S.Ct. 1764, four justices found that classifications based on sex were impliedly held to be suspect by the decision in Reed v. Reed (1971), 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.