Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, April 14, 2006

Case Law Development: Statute Criminalizing Sex with Stepchildren of Opposite Sex but not Same Sex Ruled Unconstitutional

The Connecticut Court of Appeals struck down as unconstitutional a statute on sexual assault involving stepchildren  because it seems to endorse gay relationships.  The case involved a stepparent's sexual assault of his 17 year old stepdaughter.  The court ruled that the state law barring a stepparent from having sex with a stepchild of the opposite sex who is over 16 years old violates equal protection rights because the state statute language does not prohibit the same relationship with a stepchild of the same sex. "Under [the statute], sexual intercourse between a stepfather and stepdaughter is prohibited, but sexual intercourse between a stepfather and stepson is not.  We can conceive of no rational basis for that distinction."

The court initially overturned the conviction of the man because the prosecutor did not provide sufficient evidence that the victim was indeed father's stepchild.  The testimony of both the defendant and the victim that she was Mother's child was insufficient.  "Just as a person may suppose and confess to a marriage that in actuality is invalid, so too, may a person suppose and confess to equally invalid parentage."  The court indicated that documentation or other direct proof of parentage would be required.

However, the court went on to address defendant's claim that the statute violated equal protection.  The court found that "kindred persons engaged in homosexual relations are similarly situated to those engaged in heterosexual relations."  The court then reviewed US Supreme Court and lower court cases addressing the issue of standard of review and concluded that "the United States Supreme Court has not recognized homosexuals as a suspect classification, nor has it deemed same sex relations a fundamental right."  Thus the court applied a rational basis test.

In applying that test the court considered the state's proffered justification for the distinction: the prevention of genetic defects due to inbreeding.  Since the statute prohibited sexual relations between persons who were not related by consanguinity, the court found that "the dangers of inbreeding are inapplicable, and hence irrelevant, to sexual intercourse between persons related by affinity or adoption."  Accordingly, the prevention of genetic defects was rejected as a rational basis for the statute.  The court noted that, although the state had provided no other justifications, it could conceive of other bases, including the societal decision that certain forms of sexual behavior are immoral unacceptable.  Under this standard as well, however, the court found that there was not a basis for the distinction: "Certainly sexual intercourse between stepfather and stepson is as equally repugnant as that between stepfather and stepdaughter."

A dissenting judge found the additional step of declaring the statute unnecessary to the reversal.  "As a reviewing court, our obligation is clearly to avoid unnecessary constitutional adjudication....Our supreme court expressly has instructed that appellate courts should avoid deciding constitutional issues where possible."

State v. John M., 2006 Conn. App. LEXIS 144 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)

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