B.B. v. State

¶1concurring.

¶2Our law has held that, with respect to unmarried persons, “chaste” means possessing virginity. Williams v. State, 92 Fla. 125, 109 So. 305 (1926). Thus, by its own terms the statute at issue here does not protect unmarried minors who had lost their virginity through a liaison with a third party prior to the act in question. This singularly odd state of affairs indicates that the real objective of this statute is not to protect children as a class, but to prevent the loss of chastity of those not already “despoiled.” Any person — child or adult — thus does not violate this particular statute by a sexual liaison with an unchaste minor.2

¶3I frankly find the assumptions underlying this result appalling. As I stated in Jones, the state does have a compelling interest in preventing the sexual exploitation of children as a class and can do so by establishing a minimum age of consent. The problems of pregnancy, sexually transmitted disease, and psychological injury are of special concern with the very young, as a body of well documented research now shows. Jones, 640 So.2d at 1087-92 (Kogan, J., concurring). But I am utterly at a loss to explain how the state can justify a statute such as this one, that seems to regard unchaste minors as *261being somehow less deserving of the state’s protection than those who are otherwise. This view is a painfully short-sighted relic of a bygone era that was willing to punish non-marital sexual acts severely, even to the point of regarding the innocent offspring of those unions as “children of no one” not even entitled to an inheritance. Any statute that purports to grant special status to a favored group of children over all others, to my mind at least, must be regarded as inherently questionable. On its face this statute suggests discrimination and most likely grants special status to an elite group of children.

¶4Laws should protect everyone, not merely a favored subgroup. All children deserve the state’s protection, subject only to the rights our Constitution invests in those children and their parents or guardians. I agree with the majority that privacy is implicated here. However, the statute’s application only to “chaste” children renders the state’s interest less than compelling, in the context of sex between two minors. There is no sound reason why only the chaste ones should be protected from the dangers of premature and repeated sexual acts if the state genuinely purports to be protecting children as a class. Indeed, one of the assumptions of this statute — that children engaging in serial promiscuity are less deserving — strikes me as patently absurd and self-defeating. If anything, such children are all the more in danger and thus all the more in need of assistance.

¶5I also am highly puzzled about who should be regarded as the “aggressor” and who the “victim” when both partners are minors. If both are “chaste,” then a fair reading of the statute would indicate that both have committed a felony. Yet, this effectively means each child was both aggressor and victim in a single act, which stretches credence to the breaking point. Attempting to brand one as the aggressor and the other as the victim raises very serious questions of equal protection, especially where prosecutors always assume that one type of child — such as “the boy,” or the one who is “unchaste” — must be the aggressor.

¶6Moreover, still other problems arise in this last situation. Identifying the male or “unchaste” partner as the aggressor will not always be borne out by the facts. The studies I cited in Jones indicate that some children — even boys — fall into a tragic cycle of sexual exploitation by others, which robs them of virginity but certainly does not indicate they are aggressors. And I am utterly unwilling to say that repeat victims of sexual exploitation must be considered aggressors merely because of prior victimization by third parties. This would be little better than blaming the true victim and coddling the actual aggressor, directly contrary to the very interests the state is trying to serve.

¶7In so saying, I stress that this case does not involve the separate problem of adults engaging in sexual acts with a minor, nor does the certified question raise issues of due process or equal protection. This opinion accordingly rests solely on a privacy analysis. Art. I, § 23, Fla. Const. Finally, I would suggest that the legislature revisit this statute and either modernize it or decide if it is genuinely necessary in light of the variety of other statutes more than adequately protecting children from sexual predation. Absent revision, application of this statute in other situations is likely to be a fertile source of expensive litigation in the years ahead. The legislature might wish to consider whether the cost of defending an archaicly worded statute such as this one is worthwhile.

¶8ANSTEAD, J., concurs.

¶11dissenting.

¶12In Jones v. State, 640 So.2d 1084 (Fla. 1994), this Court upheld section 800.04, Florida Statutes (1991), which prohibited sexual intercourse with a person under the age of sixteen. Section 794.05, Florida Statutes (1991), prohibits sexual intercourse with an unmarried person of previous chaste character under the age of eighteen. Neither statute refers to the age of the person against whom the prohibition is directed. For purposes of our discussion, the only material difference between the statutes is the age limit of the persons sought to be protected. Persons under the age of eighteen are still considered minors, and as this Court held in Jones, the legislature has a strong policy interest in protecting minors from harmful *262sexual conduct. I cannot see how In re T.W., 551 So.2d 1186 (Fla.1989), can be read to support the proposition that a sixteen-year-old child has a privacy right to have sex.

¶13In holding section 794.05 unconstitutional as applied, the majority appears to be saying that a sixteen-year-old child has a constitutional right to engage in sex with another sixteen-year-old child, though an older person would not have such a right. However, section 794.05 reflects a legislative determination to protect chaste and unmarried children under the age of eighteen from the dangers of having sex with anyone, regardless of age. While the prevention of exploitation of children by older persons is certainly one objective of the statute, the statute does not make this distinction and it is clearly not the only objective. As noted by Justice Ko-gan in his concurring opinion in Jones, the State has a right to prevent children and young adolescents from being exposed to the wide-ranging risks associated with premature sexual activity.

¶14If B.B. is adjudicated delinquent of a second-degree felony, he may have an argument that the particular sanction imposed upon him for having sex with another sixteen-year-old is cruel and unusual punishment. See Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). However, this question is not before us. Despite the majority’s effort to restate the issue, the question before us is whether it is for the legislature or the courts to determine the age of consent for minors to engage in sex. Referring again to Justice Kogan’s opinion in Jones:

The legislature, I believe, can choose any age within a range that bears a clear relationship to the objectives the legislature is advancing. Some reasonable age of consent must be established because of the obvious vulnerabilities of most youngsters and the impossibility of legally defining “maturity” for allegedly precocious teens in this context.

¶15640 So.2d at 1090 (Kogan, J., concurring). The legislature has established the cutoff as being at the age of eighteen. The fact that in contemporary society many couples may be engaging in sex below the age of eighteen makes it neither legal nor right.

¶16SHAW, J., concurs.

¶17dissenting.

¶18I respectfully dissent. The facts of this ease make its resolution troublesome. Two persons, both minors, agreed to engage in sexual intercourse. The State filed delinquency charges against one of the minors for violating section 794.05, Florida Statutes (1991), by having unlawful carnal intercourse with the other minor. According to the opinion under review, the trial court, relying on In re T.W., 551 So.2d 1186 (Fla.1989), determined that section 794.05 was unconstitutional. The district court reversed based on the reasoning in Jones v. State, 619 So.2d 418 (Fla. 5th DCA 1993), approved, 640 So.2d 1084 (Fla.1994). The question certified by the district court specifically limits our consideration to whether the privacy amendment of the Constitution renders section 794.05 “unconstitutional as it pertains to a minor’s consensual sexual activity[.]” We have not been asked to determine if the statute is constitutional or not for any other reason. If the statute fails for other reasons, that is a case for another day. In my judgment Jones unequivocally requires us to answer the certified question in the negative. I can find no legitimate basis to go further.