NCJ Number
94582
Journal
University of California Davis Law Review Volume: 12 Issue: 2 Dated: (Summer 1979) Pages: 332-349
Date Published
1979
Length
18 pages
Annotation
California's statutory rape law is outmoded, unnecessary, and possibly unconstitutional because it unjustifiably intrudes upon the female minor's right to privacy and because minors can be protected from sexual victimization under the existing forcible rape statute.
Abstract
Although large numbers of adolescents today are sexually active, California law still considers this behavior criminal. While the statutory rape law has been challenged as a denial of the constitutional right to equal protection of the laws, it also arguably burdens the minor's right to privacy. The keystone of this argument must be that minors have a constitutionally protected right to engage in sexual intercourse. While the Supreme Court has not yet specifically recognized a right to sexual intercourse, it has ruled that privacy is a fundamental right protected by the Constitution and includes the rights to use contraceptives, to decide whether to bear or beget a child, and to make decisions regarding marriage. These rulings all relate to the right to have sexual intercourse, and an examination of the courts' language in other privacy cases indicates an implicit right to engage in private sexual intercourse. California's statutory rape law burdens the minor's right to privacy by punishing any male who has sexual relations with a minor female not his wife, whether or not she consented to intercourse. It infringes on the minor female's right to privacy because it deprives her of sexual partners. Finally, the public interest is best served by prosecuting sexual victimization of minors under the California forcible rape statute which does not unduly interfere with the minor's right to sexual privacy. The article includes 181 footnotes.