On appeal from Superior Court, Law Division, Somerset County, whose opinion is reported in State v. Hill, 166 N.J. Super. 224 (1978).
Seidman, Michels and Devine. The opinion of the court was delivered by Devine, J.A.D.
Leave having been granted, this interlocutory appeal was brought by the State to review the trial court's determination that N.J.S.A. 2A:138-2 is unconstitutional.
Defendant, then a resident at the New Jersey Neuropsychiatric Institute in Skillman, was charged under the fourth and
fifth counts of a five-count indictment with carnal knowledge of two female residents of that institution, in violation of N.J.S.A. 2A:138-2, which provides:
Any person who has carnal knowledge of a female inmate of any home or institution for feeble-minded or mentally ill females, or of any home or training school for the feeble-minded, with or without her consent, is guilty of a misdemeanor.
The trial judge held that while the statute did not deny equal protection of the law on the basis of gender since the distinction is "substantially related to important governmental interests," it violated the Due Process Clause of the Fourteenth Amendment because it employs a permanent and irrebuttable presumption of inability to consent on the part of such person that "is neither necessarily nor universally true," and dismissed the fourth and fifth counts. State v. Hill , 166 N.J. Super. 224, 234-235 (Law Div.1978).
We agree with the conclusion of the trial judge as to the equal protection issue. Statutory classifications that distinguish between males and females are "subject to scrutiny" but deemed to be constitutional if they serve important governmental objectives and are substantially related to the achievement of those objectives. Craig v. Boren , 429 U.S. 190, 198, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397, 407 (1976).
The interest of the State in protecting institutionalized feebleminded or mentally ill females is an important governmental objective, and the prohibition of sexual intercourse with such persons, who may not fully comprehend the significance or consequences of such conduct, is substantially related to the achievement of that protection.
Thus, substantially similar statutes have been upheld in other jurisdictions. For example, in Coleman v. State , 253 Ind. 627, 256 N.E.2d 389 (Sup.Ct.1970), a statute was involved which provided that "whoever, being over 18 years of age, has carnal knowledge of a woman who is an inmate of a woman's prison or the Indiana School for Girls, is guilty of rape." The court held
that the state need prove only carnal knowledge by defendant of a female inmate of a state school for girls. In reaching this ...