Wilson v. State

Dissenting Opinion

DeBruler, J.

Appellant is a woman. She offered to commit sexual intercourse with an undercover vice squad officer for ten dollars. She was convicted of violating I.C. 1971, 35-30-1-1, being Burns § 10-4220, and was sentenced to the Women’s Prison for a term of not less than two nor more than five years.

The prostitute statute reads as follows:

“Prostitute. — Any female who frequents or lives ip a house or houses of ill fame, knowing the same to be a house of ill fame, or who commits or offers to commit one or more *8acts of sexual intercourse or sodomy for hire, shall be deemed guilty of prostitution, and on conviction thereof shall either be fined not less than one hundred dollars nor more than five hundred dollars; and imprisonment not to exceed 180 days or such person may be imprisoned in the Indiana women’s prison not less than two years nor more than five years.”

Appellant’s claim is that this statute is unconstitutional and void on the ground that it violates the following provision of the Indiana Constitution:

“The General Assembly shall not pass local or special laws, in any of the following enumerated cases, that is to say:
[2] For the punishment of crimes and misdemeanors.” Art. 4, § 22.

Appellant argues that the prostitute statute is a special criminal law prohibited by Art. 4, § 22, in that it applies only to the class of all female persons and does not apply to male persons. It is clear that the Legislature has, by this statute, erected a classification based upon sex alone. The practical effect of the classification is to subject a woman to imprisonment for five years for committing or offering to commit an act of sexual intercourse or sodomy for hire; while her male counterpart can commit acts proscribed by the same statute without being subject to any criminal prosecution. The issue before this Court is whether this classification is constitutionally infirm thereby rendering the prostitute statute “special legislation” within the meaning of Art. 4, § 22.

In the first place there can be no doubt that this Court has the duty to review the constitutional validity of the classification erected by a criminal statute; and to void that statute if it violates the prohibition in the Constitution against special legislation. State v. Wiggam (1917), 187 Ind. 159, 118 N. E. 684; Armstrong v. State (1907), 170 Ind. 188, 84 N. E. 3. In defining and applying the prohibition against special legislation this Court said the following in Armstrong, supra:

*9“It is well settled that a law is not necessarily general merely because it operates upon all within a defined class, but back of that fact must be found a substantial reason why it is made to operate only upon such class. Classifications when allowable, can only be made upon natural, intrinsic or constitutional distinctions, and special privileges, peculiar disabilities, or burdensome conditions in the exercise of a common right, may not be conferred or imposed upon a class of persons arbitrarily selected from the general body of citizens standing in the same relation to the subject-matter of the law.” 170 Ind. at 198.

Applying this test to the prostitute statute, it is obvious to me that the class of women was chosen arbitrarily for the application of this criminal sanction, and that there is no substantial ground upon which to justify singling women out for this treatment. The contrary position must maintain that a rational reason exists to punish a woman who makes such an offer without punishing a man who makes the same offer. But what such reason could possibly be put forward? I believe there are none. In my judgment, the prostitute statute, wherein it makes it unlawful for any female to commit or offer to commit one or more acts of sexual intercourse or sodomy for hire, is void as special legislation.

Secondly, the case of State v. Griffin (1948), 226 Ind. 279, 79 N. E. 2d 537, cited by the majority supports appellant’s contention, that the statute is unconstitutional. In that case a statute made it unlawful for male persons to visit a gaming house. There the classification was based solely upon sex and it was found not to violate this same provision of our Constitution. However, the basis of that Court’s decision was in part the existence of a different but corollary statute making it a crime for a female person to visit a house of ill fame, and the Court interpreted the phrase “house of ill fame” to include gaming houses. Therefore the Court held that in fact the statute provided for essentially similar treatment for men and women. In the case before us now, there has never been a corollary statute making it a crime for a man to commit or *10offer to commit sexual intercourse or sodomy for hire. The basis of the Court’s decision there was that the classification “male persons” in the statute complained of dissolved when a corollary statute was found treating “female persons” in the same manner.

Although admittedly not argued by appellant, two recent cases compel a determination of unconstitutionality in this case. In Troue v. Marker (1969), 253 Ind. 284, 252 N. E. 2d 800, this Court struck down a classification based on sex which had been erected at common law. In that case was abrogated the doctrine which denied a wife the right to recover damages for loss of consortium of her husband. In requiring that the law respond to the demands of o,ur society that women be treated equally with men we said:

“The common law must keep pace with changes in our society, and in our opinion the change in the legal and social status of women in our society forces us to recognize a change in the doctrine with which we are concerned in this opinion.” 252 N. E. 2d at 804.

That arbitrary distinction between men and women at common law prevented a wife from recovering money damages for her loss. The arbitrary distinction between men and women erected by the prostitute statute subjects the female prostitute to five years imprisonment while her male counterpart violates no law. The need for a reasoned and timely response to this appellant’s claim of discrimination is even more compelling than that in Troue v. Marker, supra. In Reed v. Reed (1971), 92 S. Ct. 251, the United States Supreme Court held that an Idaho statute favoring males over females for the offices of personal representative in probate estates was in violation of the equal protection clause of the Fourteenth Amendment. Under that statute women were not entirely disqualified to serve. Men were to be preferred. It seems to me that if the equal protection clause prohibits that kind of different treatment of women, it would likewise prohibit the State from *11punishing female prostitutes and at the same time sanction male prostitution.

That part of the prostitute statute making it a crime for a female person to commit or offer to commit an act of sexual intercourse or sodomy for hire should be declared unconstitutional.

Note. — Reported in 278 N. E. 2d 569.