A Service of Rainbow Law

The Court of Appeals of Wisconsin has rejected the argument that a statute making it a crime for anybody to have sex with a person age 16 or 17 who is not married to that person violates the constitutional requirement of equal protection of the laws. Ruling in State of Wisconsin v. Pryes, 2009 WL 1606746 (June 10, 2009) (not officially published), the court upheld the refusal by Circuit Judge Patrick L. Willis of the Manitowoc County Circuit Court to dismiss charges against Dennis S. Pryes, who was charged with violating the statute by having sex with an unmarried 16-year-old woman.

Wis. Stat. Sec. 948.09 provides: "Whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor." The word "child" is defined in 948.01 as "a person who has not attained the age of 18 years." Children who are age 16 or 17 can married in Wisconsin with parental consent. Pryes, then 51, was charged with having sex with a 16 year old. He moved to dismiss the charges, claiming a violation of due process and equal protection, arguing that the state had no rational basis for allowing some 16 year olds to have sex but forbidding it for others.

The court agreed with the trial judge that the distinctions drawn by the statute are rational. The court focused its attention primarily on the equal protection challenge, pointing out that this case did not involve any suspect classification, and thus the state could impose differential treatment if there was any rational justification for it.

" While Pryes complains that Wis. Stat. Sec. 948.09 classifies married persons differently than unmarried persons, there is a rational basis for that distinction," wrote Judge Lisa S. Neubauer for the court. "The purpose of sec. 948.09 is clear: to protect minors between the age of sixteen and eighteen from the consequences of sexual intercourse. Pursuant to Wis. Stat. Sec. 765.02, a person between the age sixteen and eighteen may marry with parental or custodial permission. Therefore the minor is not without protection or guidance in making his or her decision to marry. While Pryes is correct that once married, the State is no longer able to initiate charges on the minor’s behalf under sec. 948.09, this is precisely the type of balancing we expect from the legislature."

As the court sees it, the legislature can decide that in general people within that age range do not yet have the maturity to make for themselves the decision to engage in sexual intercourse, which may lead to pregnancy outside marriage, sexually transmitted diseases, or other complications. By exempting married persons from this prohibition, the state is counting on their parents or guardians to make a judgment about their maturity that will serve the state’s protective purpose. "Many of the significant interests of the state are addressed when a minor has obtained permission to marry – most obviously the lack of considered consent, heightened vulnerability to physical and psychological harm, the lack of mature judgment, the potential for sexual exploitation and the potential for a minor bearing a child outside of a marital relationships," wrote Judge Neubauer. "Wisconsin Stat. Sec. 948.090 reflects the legislature’s judgment that absent the assurance of parental guidance and considered consent involved in the marriage of a minor, the state is justified in continuing to protect the minor until age eighteen."

The court rejected Pryes’ invocation of cases – primarily due process cases – from other jurisdictions sustaining challenges to criminalization of consensual sex, pointing out that those cases were all distinguishable. And the court found that any due process concerns raised by the statute were satisfied by the legislature’s legitimate objective to protect teenagers from the consequences of sexual activity prior to the state’s 18 year old age of consent.

The court designated this as an unpublished decision.

Read the original article in Leonard Link