
    The People of the State of New York, Respondent, v Bertie Otis Whidden, Jr., Appellant.
    Argued October 8, 1980;
    decided December 18, 1980
    
      POINTS OF COUNSEL
    
      John S. Hall for appellant.
    I. The statutes in question are gender based and violate defendant’s Fourteenth Amendment rights to equal protection under the laws. (Meloon v Helgemoe, 564 F2d 602.) II. The case at bar is on all four’s with Meloon.
    
    
      Thomas E. Mercure, District Attorney (Gordon M. Hemmett, Jr., of counsel), for respondent.
    I. The statutes in question are presumed constitutional, and defendant-appellant has not met his burden of overcoming said presumption. (Matter of Pratt v Tofany, 37 AD2d 854; Matter of Van Berkel v Power, 16 NY2d 37; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; Borden’s Co. v Baldwin, 293 US 194; United States v Caroline Prods. Co., 304 US 144; Olsen v Nebraska, 313 US 236; Matter of Ahern v South Buffalo Ry Co., 303 NY 545, 344 US 367; Lindsley v Natural Carbonic Gas Co., 220 US 61; Matter of Fay, 291 NY 198; McGowan v Maryland, 366 US 420.) II. The statutes in question serve at least one important government objective and are substantially related to the achievement of that objective. (Meloon v Helgemoe, 564 F2d 602, 436 US 950; People v Smith, 97 Misc 2d 115; People v Marks, 146 App Div 11; People v Gibson, 232 NY 458; People v Prainito, 97 Misc 2d 66.) III. Gender-based rape statutes have overwhelming court approval of their constitutionality. (People v Wheeler, 50 AD2d 1089; People v Reilly, 85 Misc 2d 702; People v Da
      
      voli, 95 Misc 2d 402; People v Mndange-Pfupfu, 97 Misc 2d 496; People v Prainito, 97 Misc 2d 66; People v Smith, 97 Misc 2d 115.)
    
      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
    New York’s statutory rape laws are not unconstitutional as being sexually discriminatory, or as employing arbitrary age classifications, or as not requiring a mens rea. (Shapiro v Thompson, 394 US 618; Skinner v Oklahoma, 316 US 535; McGowan v Maryland, 366 US 420; Craig v Boren, 429 US 190; Frontiero v Richardson, 411 US 677; Reed v Reed, 404 US 711; Meloon v Helgemoe, 564 F2d 602; 436 US 950; Rundlett v Oliver, 607 F2d 495.)
   OPINION OF THE COURT

Wachtler, J.

The defendant pleaded guilty to two counts of rape in the third degree (Penal Law, § 130.25) in full satisfaction of a seven-count indictment. Prior to his plea he reserved his right, on this appeal, to challenge the constitutionality of the so-called statutory rape laws claiming them to be gender based and violative of equal protection in that they unlawfully discriminate against males.

There is no dispute as to the underlying facts and the language of the statute being challenged is clear. Section 130.30 of the Penal Law provides that “[a] male is guilty of rape in the second degree when, being eighteen years old or more, he engages in sexual intercourse with a female less than fourteen years old.” Subdivision 2 of section 130.25 of the Penal Law provides that “[a] male is guilty of rape in the third degree when * * * 2. Being twenty-one years old or more, he engages in sexual intercourse with a female less than seventeen years old.”

The defendant argues that because only males can be convicted of these crimes, the statutes are violative of the equal protection clauses of the State and Federal Constitutions. It is contended that this distinction based on gender is not supported by sufficient justification to withstand equal protection analysis and that, therefore, the statutes are unconstitutional.

Recognizing the fact that it is statutory rape for an 18- or 21-year-old male to have sexual intercourse with a consenting female under the ages of 14 or 17, respectively, while it would be no more than the lesser crime of sexual abuse for an adult female to have normal sexual intercourse with a male less than 16 years of age, we conclude that a gender classification does exist. Only a male can be convicted as a principal actor under statutory rape laws. Indeed, it was because of this gender-based classification that the United States Court of Appeals for the First Circuit struck down as unconstitutional the statutory rape statute then in effect in New Hampshire (Meloon v Helgemoe, 564 F2d 602, cert den 436 US 950). In that case, the New Hampshire Federal District Court noted (436 F Supp 528, 532) that “there is no valid reason for singling out the male for criminal treatment where the act is consensual.” But the mere existence of gender classification does not, standing alone, render a statute unconstitutional.

In evaluating whether a statute violates the equal protection clause a court normally applies a “rational basis” test to determine whether the varied treatment of separate classifications of citizens “rests on grounds wholly irrelevant to the achievement of the State’s objective” (McGowan v Maryland, 366 US 420, 425). Where a statute’s application differentiates on the basis of race, alienage or nationality, however, the classification is deemed suspect and a strict scrutiny test must be applied to determine whether the challenged law is “necessary to promote a compelling governmental interest” (Shapiro v Thompson, 394 US 618, 634).

Between those two tests, a third has developed to evaluate a constitutional challenge to a gender-based statute which “must serve important governmental objectives and must be substantially related to achievement of those objectives” (Craig v Boren, 429 US 190, 197; see Califano v Webster, 430 US 313, 316-317). It is this test which becomes the focal point of our inquiry.

The State has advanced three distinct legislative justifications for penalizing males for the commission of acts which would not be criminal if committed by a similarly situated woman: preventing psychological injury to emotionally immature girls, preventing physical damage and, finally, preventing the deleterious consequences of pregnancy in minors. The first of these claimed justifications, protecting young females from psychological harm, must be rejected as a suitable ground for the gender-based classification embodied in subdivision 2 of section 130.25 of the Penal Law, since it is rooted in the unfounded assumption that underage women are more vulnerable to emotional harm than are their male counterparts. Such an “ ‘archaic and overbroad’ generalization” (Craig v Boren, 429 US 190, 198, supra, quoting Schlesinger v Ballard, 419 US 498, 508), which is evidently grounded in long-standing stereotypical notions of the differences between the sexes, simply cannot serve as a legitimate rationale for a penal provision that is addressed only to adult males.

On the other hand, the problem of early pregnancy provides an ample justification for the Legislature’s decision to deter sexual contact between older males and teenage girls by imposing criminal sanctions. The unique vulnerability of young women in this area requires no empirical support, and a statute tailored to discourage sexual contact between fertile, underaged females and older men certainly can be viewed as one substantially related to the “important governmental objective” of preventing the deleterious economic social and psychological consequences of premature parenthood. Of course, it may be argued that subdivision 2 of section 130.25 of the Penal Law is underinclusive in that it does not penalize sexual contact between young females and teen-age boys, although such contact is just as likely to lead to unwanted pregnancy as is the prohibited conduct. This obvious underinclusiveness, however, is not objectionable in the present case, since it may be justified as a societal decision not to impose penal sanction upon those who are not yet capable of exercising mature judgment.

There remains to be discussed the required degree of proof that the justifications for these laws were actually on the mind of the Legislature when the statutes in question were enacted or consciously retained in the law. The First Circuit case of Meloon v Helgemoe (supra) came perilously close to requiring that New Hampshire support its statute by production of actual legislative history indicating the purposes for its enactment (564 F2d 602, 607, supra). This approach is ill-advised, and perhaps dangerous, for two reasons.

First, a policy of sole reliance on a search for legislative history when determining whether to void a statute, is at best a hazardous business. To be sure, legislative history is extremely valuable to sound decision-making when the issue is merely statutory construction. But, it is another matter entirely to place undue reliance on legislative history in determining whether to strike down legislation which, on its face, indicates that it was enacted for a valid purpose. There is little question that what motivates one legislator to propose or make a speech urging the passage of a statute is not necessarily what motivates scores of others to enact it (United States v O’Brien, 391 US 367, 383-384). Furthermore, it would be anomalous to strike down statutes on a rationale which implicitly admits that the very same legislation could be immediately re-enacted on the basis of an explanation more perceptive than that which was originally offered.

Secondly, it is certainly illogical to require the production of legislative history documenting the underlying purpose for enactment or retention of a statute where, perhaps due to the statute’s immutably sound basis, no such legislative history exists. To impose such an unreasonable burden on the respondents in this case would risk invalidation of prudent legislation whenever a litigant-challenger suggests a conceivable legislative objective which might possibly run afoul of some constitutional provision (see McCray v United States, 195 US 27, 56). Therefore, where, as here, the legislation is supported by unrefuted, plausible and constitutionally sufficient justifications, a healthy recognition of the limits of judicial power compels the conclusion that the challenge to that legislation must be rejected (see McCray, supra, at pp 54-56).

Accordingly, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Respectfully, I dissent. My disagreement is not with the presence or absence of explicit legislative history supporting what is concluded to have been the motivation for enactment of subdivision 2 of section 130.25 and section 130.30 of the Penal Law, for I tend to agree with Judge Campbell, concurring in Rundlett v Oliver (607 F2d 495, 504), that the issue is whether there is now a proper relationship between the enactment and its objective rather than whether there necessarily was when it first came into our law, and with Judge Bownes, dissenting in the same case (607 F2d, at p 505), that much that passes for legislative history in equal protection analysis is simply a derivation, or as he put it an “attribution”, of what the writer concludes must have been the motivation in light of the mores at the times the provision was enacted and amended. Nor do I disagree with the use of the Craig v Boren (429 US 190, 197) and Califano v Webster (430 US 313, 316-317) “intermediate scrutiny” test which requires that statutory classifications be substantially related to an important governmental objective rather than the lesser rational relationship to a permissible objective test or the more stringent strict scrutiny test which turns constitutionally on whether there is a necessary relationship to a compelling State interest. My point of departure is that without supporting data (whether in the form of legislative history or of a Brandéis brief), I do not find a substantial relationship.

What we deal with here are penal statutes that make felons out of males 21 or older who have consensual sexual intercourse with females 14 to 16 years old (Penal Law, § 130.25, subd 2) and males 18 or older who have consensual sexual intercourse with females 11 to 13 years old (Penal Law, § 130.30), but make it only a misdemeanor for a female 21 or older to have consensual sexual intercourse with a male 14 to 16 years old (Penal Law, § 130.55) or for a female 18 or older to have .consensual sexual intercourse with a male 11 to 13 years old (Penal Law, § 130.60). The bases for doing so are said to be, first, that a significant number of females less than 17 years old suffer inordinate physical and psychological harm as a result of consensual sexual intercourse with older persons of the opposite sex, and, second, the need to protect young females, as well as society from the burdens of unwanted pregnancy.

It may be that the physical and psychological harm suffered by females under 17 years of age is greater than the corresponding harm suffered by their male counterparts. But the aberrational desire of adults to have sexual relations with children (known as pedaphilia) is not peculiar to males or directed solely at females (Eidson, Constitutionality of Statutory Rape Laws, 27 UCLA L Rev 757, 774), and with an upper limit of 16 years there is substantially less likelihood of physical danger to the victim than were the age limit lower (Ploscowe, Sex and the Law, p 184; Eidson, at pp 774-775). Absent statistical support, I cannot conclude that relationship to either psychological or physical injury has been demonstrated to be sufficiently substantial to uphold the classification. To do so is, in effect, to embrace the moral viewpoint that girls, but not boys, need to be protected from their own inclination to enter into consensual sexual relationships with adults of the opposite sex. Yet this very day we have declared, “[I]t is not the function of the Penal Law in our governmental polity to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values” (People v Onofre, 51 NY2d 476, 488, n 3).

The same result follows when the question is examined in terms of protection from unwanted pregnancy. Though section 130.20 of the Penal Law makes it only a misdemeanor for a male age 16 to 20 to have consensual sexual intercourse with a female 14 to 16 years old and for a male age 16 and 17 to have consensual sexual intercourse with a female 11 to 13 years old, it is under sections 130.25 and 130.30 a felony for a male 21 or over to have consensual intercourse with a female 14 to 16 years old and for a male 18 or over to have consensual intercourse with a female 11 to 13 years old. In the absence of any data indicating that teen-age pregnancy results to a significant extent from sexual liaisons between young girls and older men, rather than between young girls and their teen-age contemporaries, it cannot be maintained that the imposition of felony punishment upon a limited class of older males meets the “substantial relationship” requirement. The majority’s assumption that such a demonstration is unnecessary in effect, once again, expresses a moral point of view.

Concededly there are decisions in a number of other States upholding statutory rape statutes against equal protection attack, one o£ which, Michael M. v Superior Ct. of Sonoma County (25 Cal 3d 608), has just been argued before the United States Supreme Court as this is written, but in my view logic does not support the gender-based differentiation made by the sections of the Penal Law in question. Moreover, so to hold breaks no new ground (see Meloon v Helgemoe, 564 F2d 602, cert den 436 US 950 [striking down New Hampshire statutory rape provisions as violative of equal protection]; see, also, Commonwealth v MacKenzie, 368 Mass 613 [striking down as violative of equal protection law holding father but not mother criminally responsible for birth of illegitimate child] ; Commonwealth v Staub, 461 Pa 486 [striking down as violative of equal protection law making father liable for larger fine than mother upon conviction of fornication resulting in birth of child]). I would, therefore, reverse defendant’s conviction, grant the motion to dismiss the counts of the indictment charging rape in the second and third degrees, and remand the case for further proceedings on the indictment.

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur with Judge Wachtler; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Order affirmed. 
      
      
        . The conclusion is supported by the fact that the 1950 census showed that 6% of the females in the United States were married by age 16 (United States Census 1950, Special Reports: Marital Status, table 5, p 42, cited in Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich L Rev 105, 121, n 112).
     
      
      . At least 39 States have so concluded, enacting gender neutral statutory rape laws (see Eidson, op. cit., at p 765, n 50).
     