In 1981, the United States Supreme Court ruled that a California law which specified that a female under the age of 18 could not have consentual sex was not a violation of the Fourteenth Amendment. The opinion, written by Justice William Rehnquist, argued that the effort of the state of California to protect women based on their different physiology. The case became not only a question of the Equal Protection Clause of the Fourteenth Amendment, but also an indictment of the Equal Rights Amendment. In the end, the Supreme Court ruling made it crystal clear that in the eyes of the law, men and women were not equal and may have been the deathblow to the ERA.
The case centered on a then 17 year old boy named Michael. Michael met a young woman at the bus stop and eventually the two had sex. According to evidence taken at the preliminary trial, Michael met a young woman name Sharon. Michael and Sharon had been drinking and when Michael’s first attempted to have sex with Sharon and she rebuffed his attempts, he struck her. After being hit the first time she said no, Sharon agreed to have sex with Michael. However, Michael was charged with statutory rape on the grounds that under California law, the young woman, who 16 at the time, could not legally consent. The law said that statutory rape is “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 statute thus makes men alone criminally liable for the act of sexual intercourse. (Rehnquist 1981). The question of course was why the difference. Why could a boy who was under 18 not only have consentual sex, but also be held criminally liable if his partner was roughly the same age. Opponents to the law and Michael’s defense attorneys argued that California had ratified the Equal Rights Amendment guaranteeing women the same rights as men and legally establishing that gender should not be an issue in matters of rights. They argued that the law set forth different standards for the conduct and rights of men and women and thus violated the California state constitution and the federal constitution. “Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender” (Rehnquist 1981).
The value of the judicial opinion both as a historic marker in the struggle for equal rights for women and in the protection of the law is immediately evident. Michael tried to use equal rights as a justification for his actions and unfortunately, the prosecution on behalf of the state of California, effectively argued against equal rights. The four justices forming the majority opinion and the concurring justice determined that the reasons why the California legislature made such a law were not relevant.
“The fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct. Precisely why the legislature desired that result is of course somewhat less clear. This Court has long recognized that "[inquiries] into congressional motives or purposes are a hazardous matter," and the search for the "actual" or "primary" purpose of a statute is likely to be elusive. Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex (Rehnquist 1981).
In effect, the opinion argues that the ends justifies the means. Rehnquist wrote very specifically that some lawmakers might have voted for the legislation out of various religious or moral standards, applied differently to young men than different young women. He argues that some might have been attempting to prevent teen pregnancies or other might have been trying to protect women “from the loss of ‘chastity’,” (Rehnquist 1981). Though it is never actually part of the opinion of the justices, it is clear that another reason that this law could have been passed was overwhelming and socially-pervasive attitude at the time that young women did not choose to have sex because they wanted to. Good girls didn’t do that. Furthermore, the entire notion called to mind an era when women were thought to be too emotional or dim-witted to think and make decisions for themselves. Sadly, the state of California helped to keep the stereotype alive arguing that the reason for the law was simply a matter of physiology. Worse yet, Rehnquist and four other members of the Berger court upheld the law, based on the idea that Equal Protection under the law meant that the state was somehow responsible to provide young women with protection from themselves, their sex drives and their lovers. The state with the assistance of the Supreme Court determined that women needed to be protected from sex. Men did not need to be protected and therefore men and women are inherently unequal.
“The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, have significant social, medical, and economic consequences for both the mother and her child, and the State. Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State” (Rehnquist 1981).
While the justices are to be lauded for recognizing the sociological impacts of teen pregnancy and single motherhood, the Court also noted that half of all teen pregnancies end in abortion and that many of the children born to teen mothers eventually become wards of the state. These questions while important to the overall issue at hand, lead the observer to question why the court did not more adequately seek to prevent teen age fatherhood as well. Though the figures are not documented in this opinion, it is likely the case that many of the children who were aborted or who became wards of the state had teenage fathers as well as teen mothers. By ruling that young women could be the victims of statutory rape and young men could not, the court appears to be giving teen fathers a bye in this contest, offering to charge them with a crime rather than forcing them to deal with their responsibility as fathers in any type of constructive manner. In effect, by upholding this ruling, the court was condemning young men to becoming wards of the state via the state prison system instead of forcing men to take some responsibility for their role in the creation of an embryo.
In the next paragraph of the opinion, Rehnquist argues that since young men are not physically capable of becoming pregnant, the risks associated with underage sex are much worse for women than for men. “We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe” (Rehnquist 1981). While history has shown that Rehnquist missed the myriad of sexually transmitted diseases that can affect young men as well as young women, what is more troubling is the notion that women “suffer disproportionately the profound physical, emotional and psychological consequences of sexual activity” (Rehnquist 1981). The justices might as well have said that men are okay with casual sex and women are not. This deeply pervasive double standard was one of the original reasons for the ERA and the fact that it reached so high, to even the bench of the Supreme Court, simply vindicates ERA supporters. This is the same attitude that leads to gender-biased hiring and gender-biased salaries; it leads to men who believe that regardless of a woman’s training, responsibilities or education-level, secretarial and administrative positions, as a traditionally feminine domain, should be paid less than physical labor which requires no education, no training and carries no responsibility. It is the same attitude that allows business owners in traditionally feminine industries to offer fewer benefits, including health insurance, because their employees will be covered by their spouse’s policy.
The justices offered no evidence for their contention that women suffer more in these relationships because it was simply accepted by society at that time. Instead, they argue that a gender-neutral law would be less effective in assisting with the state’s stated goals of preventing teen pregnancy.
“Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes” (Rehnquist 1981).
Worse yet, the justices equate making having sex with an underage woman a crime with the deterrent provided by the chance of underage pregnancy. What? One has to wonder if the justices had ever met a pregnant teen or indeed had any context to make such a statement. To be charged with the crime, the young man had to be discovered and, generally speaking, someone had to make a complaint against him. If a young woman were to suffer the consequences of her actions, her life was forever changed. Though the procedure would later become more sophisticated, abortions were and still are a medical procedure which can result in complications or even death. Those who chose not to have an abortion are faced with a lifetime of raising a child or knowing that their child was out there somewhere being raised by someone else. In a perfect and gender-neutral world, the father of such a child would be faced with similar feelings and lifetime emotions, but under the California statute, he would instead go to jail. The young man, if convicted as a juvenile, would likely have his “record” erased when he reached his 18th birthday and might never have to face a public accounting for his actions and that only applied to those who were actually charged.
Perhaps the saddest part of this opinion is that it so clearly reflects the social mores still firmly in place in 1981. The idea that a young man suffered no ill effects from having underage sex and that young women did was and is still all too pervasive. Unfortunately, this Supreme Court case did nothing to move the country forward. Instead, it helped to mire the law firmly in the idea that men and women are biologically different and therefore must be treated differently. The constitutional question of the case also clouded the issues of Michael’s guilt in regards to the rape of Sharon. The testimony clearly indicates that he struck her and that she only consented to have sex due to the fear that she would be struck again. Because the case became one gender equality, it never dealt with the issue of rape as rape. The age of the victim should not have been a factor in this case; he should have been charged and convicted based on his use of force to gain sexual consent.
Furthermore, Michael’s actions in this case probably made it distasteful to some who might have otherwise supported his argument that the law was unconstitutionally gender biased. Unfortunately, the facts of the case show that Michael was a rapist, regardless of the girl’s age, and though he was perhaps being convicted of the wrong crime, some would obviously observe that he deserved to be imprisoned for his actions. His guilt makes it harder for those who agree that the statute unfairly discriminates against men to join his side.
“In upholding the California statute we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females. To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts” (Rehnquist 1981). The opinion argues that in upholding the California law the justices are not promoting discrimination and that, in fact, men who have never been subjected to past discrimination or peculiar disadvantages cannot be discriminated against. Though the justices intended this as a statement showing their support for ERA, this phrase had the potential to later be turned against other anti-discrimination lawsuits and set the bar for those attempting to prove that they were victims of discrimination. Suddenly, court precedent required that to prove discrimination one either had to be the victim of past discrimination or have a peculiar disadvantage. In more modern times, this would be used against white men who argued that Affirmative Action discriminates against them. Because white men generally cannot prove a history of discrimination against them, they are effectively denied the right to claim discrimination because of a case about a rapist.
The effect then of this opinion was tos et backt he cause of equal rights and perhaps deal a death blow to the ERA. “Many people are unaware of this Supreme Court case from 1981 regarding statutory rape punishment. In a nutshell the court ruled that gender bias was acceptable in doling out punishments. It was/is a significant setback in recognizing equality for women” (“Michael M v Sonoma County Superior Court” , Moraloutrage.com, 2005).
The justices in the dissenting opinion argued effectively that this should have been a case of rape pure and simple and that the state’s arguments against a gender neutral law were never proven. “The dissents, too, applied Craig but found that this statute failed the test. Justice William J. Brennan argued that California had not proved that its law was a greater deterrent to teenage pregnancy than a gender‐neutral law would be. Justice John Paul Stevens suggested that a law might punish whichever sex partner was the aggressor, or the more willing, but that to punish only one of two equally willing participants was irrational” (Goldstein 2006).
The importance then of the opinion in showing the pervasiveness of the discrimination against women in this case and the lack of either judicial or constitutional merit for the finding is evident in even the simplest examination of this case. Tragically, because there is no higher authority in the land, the Supreme Court can sometimes make irrational decisions based on emotion and ideals rather than law and we, the country, are forced to simply live with the consequences.
Goldstein, Leslie Friedman. “Michael M v Sonoma County Superior Court” (2007). Available at: http://www.answers.com/topic/michael-m-v-superior-court-of-sonoma-county?cat=biz-fin, Accessed: April 25, 2008.
“Michael M v Sonoma County Superior Court”, moraloutrage.com (2005).
Rehnquist, William. (1981) Associate justice, Supreme Court. Michael M v Sonoma County Superior Court.