MICHAEL M. Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 25 Cal. 3d 608

Opinion RICHARDSON, J. We consider the constitutionality of Penal Code

section 261.5 (all statutory references are to that code unless otherwise cited), which defines the offense of “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 crime was formerly called “statutory rape.” We will conclude that while this

section does classify both victims and offenders by sex, there is a compelling state interest which justifies the classifications, thus meeting the equal protection requirements of both federal and state Constitutions. The factual and procedural aspects of the case are briefly described. Defendant, 17*/2 years old, and Sharon, 16, engaged in sexual intercourse after an amorous interlude on a park bench. There was some evidence that the defendant struck Sharon twice before she engaged in the act.

After the juvenile court found that defendant was not a fit and proper subject to be dealt with under the juvenile court law (Welf. & Inst., Code, § 707, subd. (a)), he was charged by information with a felony violation of

section 261.5. Following his unsuccessful motion to set aside the information under

section 995, he seeks from us a writ of prohibition to compel the respondent superior court to dismiss the information on the ground that

section 261.5 violates the equal protection clauses of both the United States and California Constitutions, because only females are protected by the statute and only males may be prosecuted under it. (§ 999a; (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 427-428 [134 Cal.Rptr. 650, 556 P.2d 1101].) For reasons developed below we reject this contention. In Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351], we considered the issue of suspect classifications based upon sex.

Specifically, we there invalidated a statute which prohibited women from tending bar except in certain limited circumstances. Under the strict scrutiny standard routinely applied when the classification is deemed suspect, we imposed upon the state the burden of establishing not only that the state has a compelling interest which justifies the law but that those distinctions drawn by the law are necessary to further the statute’s purpose. (Id., at pp. 16-17; Arp v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 395, 406 [138 Cal.Rptr. 293, 563 P.2d 849]; Westbrook v.

Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487].) There can be no doubt that

section 261.5 discriminates on the basis of sex because only females may be victims, and only males may violate the section. However, this obviously discriminatory classification scheme is readily justified by an important state interest. Unlike the sex-based classification which we invalidated in Sail’er Inn, and which reflected overbroad social generalizations regarding the appropriate roles of males and females, the law herein challenged is supported not by mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant.

This changeless physical law, coupled with the tragic human costs of illegitimate teenage pregnancies, generates a compelling and demonstrable state interest in minimizing both the number of such pregnancies and their disastrous consequences. Accordingly, the Legislature is amply justified in retaining its historic statutory rape law because of the potentially devastating social and economic results which may follow its violation. Pregnancies among unwed teenage girls constitute a major contemporary human problem the dimensions of which may be illustrated by a few current statistics.

Between 1971 and 1976, 83.6 percent of the 4,860 children born in California to girls under 15 years of age were illegitimate. During this same period, of the 112,682 children born to girls from 15 to 17 years of age, 51 percent were illegitimate. An average of 37.5 percent of births to all teenage mothers from 1971 to 1976 were out-of-wedlock. In contrast, approximately 15 percent of births to women of all ages during a comparable period were illegitimate, (Cal.

Dept, of Health Services, Center for Health Statistics, Birth Cohort Records.) We may conclude that the problem of illegitimate births to teenagers is serious. The fact that most teenage pregnancies are unwanted is evidenced by the fact that teenagers seek and utilize a disproportionate amount of abortion services.

While teenagers accounted for 21 percent of all pregnancies in 1976, 48 percent terminated their pregnancies by induced abortion, thus accounting for 34.7 percent of all legal abortions in California. (Id.; see also, Green & Potteiger, Teenage Pregnancy: A Major Problem for Minors (Zero Population Growth Pamp. 1977); 11 Million Teenagers (Alan Guttmacher Institute 1977).) Furthermore, births to teenage mothers pose substantially increased medical risks as evidenced by the record of complications reported on the birth certificates in one-fourth of recent teenage pregnancies. (Cal.

Dept, of Health Services, Center for Health Statistics, Birth Cohort Records, supra.) For both the adolescent mother and her infant there is a measurably greater risk of death, illness, or injury than for women in their 20s. Finally, “The social consequences of teenage childbearing are even more pervasive than the health consequences. Thus, eight out of 10 women who first become mothers at age 17 or younger never complete high school—twice as high a proportion as those who do not give birth until they are 20 or older.

A recent study clearly finds that the pregnancy directly causes the dropout, independent of any effect of antecedent education achievement or aptitude.” (Lincoln, Is Pregnancy Good for Teenagers? (Alan Guttmacher Institute, U.S.A. Today, July 1978) pp. 34, 36.) The injurious effects of pregnancy on an unwed teenager are thus substantial, far-reaching, and may well include severe physical, mental and emotional trauma. In our view a responsible Legislature need not blind itself to these serious sociological consequences.

Understandably concerned about the scope of these problems it may, in an era of growing permissiveness, choose to meet them in a variety of ways. It may encourage sex education in schools and provide for the dissemination of relevant educational information and medical attention in the manner described in Civil Code

section 34.5. It may also, in our view, properly attack the problem more directly by expressly prohibiting acts of sexual intercourse performed by a male with a female, not the wife of the perpetrator, who is under the age of 18 years.

Once the state has established a valid and compelling interest in preventing pregnancies among unwed teenage girls and further determines to implement that interest, in part, by imposing a criminal sanction proscribing sexual relations with minor females, it inevitably follows that sex is the only possible and therefore necessary classification which can be adopted in identifying offender and victim. The Legislature is well within its power in imposing criminal sanctions against males, alone, because they are the only persons who may physiologically cause the result which the law properly seeks to avoid.

Defendant contends, however, that even if the prevention of pregnancy is a compelling state interest, the classification scheme of the statute is both overly broad and unnecessary to the protection of the female minor. He suggests that the state’s interest in preventing pregnancy could be served equally well by removing from the ambit of the statute, either as female victims or male offenders, all those who use birth control devices or techniques and all those otherwise incapable of procreation. We disagree, adopting in this connection the sound reasoning of the Supreme Judicial Court of Maine in State v.

Rundlett (Me. 1978) 391 A.2d 815, wherein, responding to a similar argument, it recently said, “We doubt that legislators, intent on use of the criminal law to prevent juvenile pregnancies, would throw such a roadblock in the way of effective prosecution as would be created by subjecting an under-age prosecutrix to cross-examination of such additionally embarrassing and uncertain details.

Furthermore, we believe legislators’ rejection of the defenses suggested. .. reflects] their reluctance to rely, for accomplishment of their anti-pregnancy objective, upon the doubtful efficacy of contraceptives and the truth of the inevitable claim of non-emission by a male charged with statutory rape.” (P. 821, fn. 18.) We also are unable to accept the contrary argument that the statute is impermissibly underinclusive and must, in order to pass constitutional muster, be broadened so as to hold the female equally culpable.

It is the prerogative, indeed the duty, of the Legislature to recognize degrees of culpability when drafting a Penal Code. It follows that the Legislature may reasonably conclude that the minor female who engages, however willingly, in sexual relations is subjected to risks and adverse consequences, both prenatal and postnatal, albeit of another kind, far greater than those which may befall her male counterpart. To hold otherwise defies not only common sense and reality, but the fundamental laws of biology.

We note that all minors, male and female, are protected from sexual abuse under sections 272 (contributing to the delinquency of a minor) and 288 (lewd and lascivious conduct upon the body of a child under 14). Women may be prosecuted under these statutes if they engage in sexual relations with underage males. (See People v. Mackey (1975) 46 Cal.App.3d 755, 760 [120 Cal.Rptr. 157].)

Section 261.5 merely provides additional protection for minor females in recognition of the demonstrably greater injury, physical and emotional, which they may suffer. We find significance in the fact that in all of jurisprudence the only case upon which defendant can rely for his constitutional challenge is Meloon v. Helgemoe (1st Cir. 1977) 564 F.2d 602.

But Meloon, as even the most cursory reading reveals, involved a statutory scheme under which it was declared to be a felony for a male to have consensual relations with a female under the age of 15, while it was not a crime of any kind for a wom'an to have consensual sexual relations with a male under 15. (P. 603.) It thus becomes apparent that the Meloon court was called upon to evaluate a statutory scheme quite different from that before us.

Furthermore, the Legislature may well have believed that the criminal prosecution of a minor female equally with a male would, as a practical matter, effectively eliminate any possibility whatever of prosecution under the statute. A potential prosecutrix, or her family, would be unlikely ever to complain if she would herself be subject to a prosecution on identical charges. Because the Legislature has enacted this legislation with the principal objective of protecting minor females as a class it is not surprising that it simultaneously elected to exclude the victim herself from the statutory proscription.

We emphatically reject defendant’s contention that to uphold the constitutionality of

section 261.5 necessarily creates adverse inferences concerning the capacity of minor females to make intelligent and volitional decisions. By its adoption of

section 261.5 the Legislature necessarily acknowledged the obvious truism that minor females are fully capable of freely and voluntarily consenting to sexual relations. If this was not so, the charge brought in these cases would uniformly be one of forcible rape. (§ 261.) The statute makes no statement about the girl’s ability to consent. Rather, the statute merely prohibits the act of sexual intercourse with an underage female not the wife of the perpetrator rejecting consent as a defense. In this regard

section 261.5 is no different than a variety of other statutes which prohibit minors from engaging in certain activities of much less consequence to the minor, no matter how well informed, how knowledgeable and how willing or consenting the minor might be. (E.g., §§ 308 [selling or furnishing tobacco to minor], 310 [minor under 16 may not attend prizefight], 326.5 [no minor may participate in bingo game].) It is quite possible that the Legislature, if it so elected, could adopt a gender-neutral statute prohibiting sexual relations with minors of either sex, or it might, in some other way, modify the present statute in accordance with defendant’s urgings.

However, the Legislature is not constitutionally compelled to do so, and thus far for reasons satisfying to itself has not done so. Furthermore, we note that in all of those states which assertedly have adopted a neutral rule, the change was effected in every instance by legislative action. Not a single state has adopted such a rule by judicial decree. The petition for writ of prohibition is denied. Bird, C. J., Clark, J., and Manuel, J., concurred.