Navedo v. Preisser

¶4BRIGHT, Circuit Judge.

¶5Richard Navedo appeals from a judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1976). Navedo seeks to overturn his state felony conviction for engaging in sexual intercourse with a sixteen-year — old female while he was over twenty-five years of age, a violation of Iowa Code § 698.1 (1975) (repealed 1978).1 We agree with Navedo’s contention that the Iowa statute is invalid on equal protection grounds because it unconstitutionally discriminates against males on the basis of sex. Accordingly, we reverse the judgment of the district court.

¶6I. Background.

¶7In state court Navedo challenged the constitutionality of the Iowa statute on due process and equal protection grounds by filing a demurrer to the information charging him with statutory rape. The Iowa district court denied relief and sentenced Navedo to a five-year term of imprisonment. The court, however, suspended the sentence and placed Navedo on probation. The Iowa Court of Appeals affirmed the conviction, relying on State v. Drake, 219 N.W.2d 492 (Ia.1974).2 The Iowa Supreme Court denied discretionary review.

¶8Thereafter, Navedo petitioned for a writ of habeas corpus in federal district court, again alleging violations of due process and equal protection. In an unpublished opinion, the federal district court initially observed that the statute on its face is gender-neutral, applying to “any person” over the age of twenty-five who carnally knows a female under the age of seventeen. Relying on Iowa case law, however, the court construed the term “carnal knowledge” as requiring penetration of a female sex organ by the male sex organ and concluded that the law in question punishes only males. The district court noted that the statute discriminated against males both by punishing only males and by protecting only females. Nonetheless, the court held that the discrimination was substantially related to the achievement of important governmental objectives-namely, protecting young females from unwanted pregnancy and emotional trauma-and so was permissible under the equal protection clause.3 The district *638court also rejected the other constitutional challenges made by Navedo4 and denied him habeas corpus relief.

¶9II. Discussion.

¶10As Navedo contends, the Iowa statute discriminates between men and women by punishing a male over twenty-five years of age for engaging in sexual intercourse with a female sixteen years old, without punishing a female over twenty — five years of age for engaging in sexual intercourse with a male sixteen years old. The State of Iowa does not contest this discriminatory effect of the statute. See also State v. Drake, supra,219 N.W.2d at 495-96 (acknowledging that the statute creates a gender-based classification). Nor does the state disagree with appellant that

[t]o withstand constitutional challenge … 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, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976).]5

¶11Rather, the state contends that the disparate treatment of the sexes is constitutionally justified under the Craig standard, because the gender classification in the Iowa statute is substantially related to the achievement of three important governmental objectives: (1) the prevention of pregnancy; (2) the prevention of physical injury caused by intercourse; and (3) the prevention of emotional trauma caused by sexual intercourse with an older man, particularly if he wielded undue influence or if pregnancy results.

¶12*639A. Prevention of Physical and Emotional Trauma.

¶13The state contends that the statute seeks to protect young females from physical injury 6 and emotional trauma caused by sexual intercourse with older men. The state argues that the gender classification is substantially related to the achievement of these objectives because a female over the age of twenty-five cannot inflict physical damage on a young male by engaging in normal sexual intercourse, and a young female is more likely than a young male to suffer emotional effects from sexual intercourse with an older partner, particularly if she becomes pregnant or was unduly influenced. The state, however, has offered no evidence of any kind-legislative history, statistical, or medical-to support these arguments.

¶14In United States v. Hicks, 625 F.2d 216, 217 (9th Cir. 1980), the Ninth Circuit invalidated a federal law making it a felony for a man to carnally know “any female, not his wife, who has not attained the age of sixteen years.” The Government argued that the statute served the purpose of preventing unwanted pregnancy and physical injury to young females. Relying on Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), and Craig v. Boren, supra,7Judge Wallace (writing for a majority of the panel) determined that once an appropriate party invokes constitutional scrutiny of a statutory gender classification, the government shoulders the burden of proving a constitutionally sufficient justification. United States v. Hicks, supra, at 219. See also Berkelman v. San Francisco Unified School District, 501 F.2d 1264, 1269 (9th Cir. 1974). Because the Government did not produce any evidence supporting its claimed justifications for the statute, the Ninth Circuit concluded that it failed to carry its burden of proof. United States v. Hicks, supra, at 219-21.

¶15The First Circuit relied upon a somewhat similar analysis in overturning a New Hampshire statute similar to the federal statute at issue in Hicks. Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978). Later that circuit reached a contrary result and upheld a comparable Maine statute in Rundlett v. Oliver, 607 F.2d 495 (1st Cir. 1979). In the latter case, however, the state offered substantial statistical and medical evidence to support its contention that young females, unlike young males, are often victims of physical injury resulting from sexual intercourse. *640See Rundlett v. Oliver, supra,607 F.2d at 502-03.

¶16We agree with the reasoning of the First and Ninth Circuits in Meloon and Hicks and hold that the state bears the burden of showing that the gender-based classification is substantially related to the achievement of the statute’s objectives. In this case, the state has produced no evidence showing the frequency and severity of physical injury to sixteen-year-old females from consensual intercourse with males over twenty-five. The state has also failed to produce any evidence demonstrating the frequency and severity of emotional trauma to sixteen-year-old females caused by consensual sexual intercourse with males over twenty-five, or demonstrating that young females are more likely to experience emotional trauma than young males if intercourse results with an older person.8 Therefore, the state has failed to meet its burden of showing that the gender-based classification substantially furthers the prevention of emotional trauma and physical injury.

¶17B. Prevention of Pregnancy.

¶18The state also argues that its statute passes constitutional muster because it aims to prevent unwanted pregnancy among young females, and only females can become pregnant. Admittedly, the prevention of unwanted teenage pregnancy is an important state objective. However, this rationale is also insufficient to support the statute’s gender-based classification.

¶19The state has offered no legislative history or other evidence showing that a purpose for the statute is the prevention of pregnancy. In State v. Drake, supra,however, the Iowa Supreme Court determined that the Iowa legislature enacted the statute to prevent teenage pregnancy and its attendant problems. Although a court should accept the purpose of a statute offered by the state or its courts, despite a lack of legislative history, we remain free to inquire into the actual purpose of the statute if the proffered justification is not plausible. See Caban v. Mohammed, supra,441 U.S. at 389, 99 S.Ct. at 1766; Califano v. Goldfarb, 430 U.S. 199, 209 n. 8, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977); Craig v. Boren, supra,429 U.S. at 199 n. 7, 97 S.Ct. at 457; Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975).

¶20The plausibility of a pregnancy rationale for laws of this kind is suspect. As the First Circuit noted in Meloon, pregnancy is a fundamental characteristic distinguishing the two sexes and can be used as an “available hindsight catchall rationalization” for almost any gender-based legislation; moreover, statutory rape legislation traditionally has included very young females for whom pregnancy is no threat. Meloon v. Helgemoe, supra,564 F.2d at 607-08. See Rundlett v. Oliver, supra,607 F.2d at 502 n. 15.

¶21In this case, the general doubts expressed by the First Circuit regarding a pregnancy rationale are reinforced by the peculiar structure of the Iowa statute. That statute superimposes strict age limitations upon its gender distinction, thereby excluding from punishment the class of males most likely to have intercourse with and cause pregnancy in sixteen-year-old females-males under twenty-five years of age.9 In our view, this critical underinclusiveness vitiates the *641state’s pregnancy rationale.10 Thus, that rationale will not justify the gender-based classification of the Iowa statute.

¶22Because the state has failed to show that its gender-based classification substantially furthers the prevention of physical injury, emotional trauma, or pregnancy caused by sexual intercourse with an older person, we hold that the provision of the Iowa statute in question violates the equal protection clause.11 Accordingly, we reverse the judgment of the district court and remand with instructions to issue the writ of habeas corpus.12