Eleanor Krasnow, Manchester, N. H., for petitioner-appellant.

Michael E. Saucier, Asst. Atty. Gen., Augusta, Me., for respondents-appellees.

Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, DEVINE, District Judge.*

DEVINE, District Judge.

Appellant, George Rundlett, was indicted and convicted on three counts of violating 17 M.R.S.A. § 3151 (1964), Maine's former "statutory rape" law. His challenge to the statute on "equal protection" grounds was rejected by the Supreme Judicial Court of Maine. State v. Rundlett, 391 A.2d 815 (Me.1978). He then sought habeas corpus relief from the United States District Court for the District of Maine, and here appeals from the denial of such relief. For the reasons hereinafter outlined, we affirm the decision of the district court.

The statute at issue, 17 M.R.S.A. § 3151, provided:1

Whoever ravishes and carnally knows any female who has attained her 14th birthday, by force and against her will, or Unlawfully and carnally knows and abuses a female child who has not attained her 14th birthday, shall be punished by imprisonment for any term of years. (Emphasis added.)

In its consideration of the initial appeal, the Maine court noted that the word "whoever" in the above statute is facially a "gender-neutral" term. 391 A.2d at 817. But the Maine courts have construed "carnal knowledge" to be synonymous with sexual intercourse, which has been defined as "penetration of the female sex organ by the male sex organ". State v. Bernatchez, 159 Me. 384, 385, 193 A.2d 436, 437 (1963); State v. Croteau, 158 Me. 360, 362, 184 A.2d 683, 684 (1962). The evidence presented at appellant's jury trial in the state court warranted findings of fact that, as the junior high school homeroom teacher of the complaining witness, he engaged in sexual intercourse with her at various times in late 1975 and early 1976. At all such times the complainant was under fourteen years of age.

Throughout all stages of his appeal, the appellant has relied on our decision in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), Cert. denied, 436 U.S. 950, 98 S. Ct. 2858, 56 L. Ed. 2d 793 (1978). In affirming the district court's grant of a writ of habeas corpus in that case, we considered New Hampshire's former, gender-based, statutory rape law, RSA 632:1(I)(c), which provided:2

A Male who has sexual intercourse with a Female not his wife is guilty of a Class A felony if . . . (c) the Female is unconscious or less than fifteen years old. (Emphasis added.)

Ruling that the applicable equal protection standard was that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives" (Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397 (1976), Rehearing denied, 429 U.S. 1124, 97 S. Ct. 1161, 51 L. Ed. 2d 574 (1977)), we rejected New Hampshire's contentions that the gender-based classification outlined in its statute reasonably reflected particular legislative concerns with the prevention of physical injury resulting from the act of intercourse, and the prevention of pregnancy of the under-aged partner. 564 F.2d at 607-09. In addition, we found that the apportionment of burdens under New Hampshire's statutory scheme was ill-suited to achievement of the overall objectives of its law the prevention of the sexual exploitation of children through the act of sexual intercourse. Id.

The appellant here argues that the logic of Meloon compels a similar result in this case, while appellees, although citing the same pregnancy and injury protection rationales proffered by New Hampshire in that case, seek to distinguish the Maine statute on two grounds.

I.

The appellees' initial contention is that since male and female perpetrators are not similarly situated with respect to the preventive purposes of Section 3151, which purposes are grounded in unique physical differences between the sexes, the statute need only pass muster under the traditional minimum-rationality equal protection test of judicial review. At the outset, we note our agreement with appellant that appellees' argument that male and female perpetrators are Not similarly situated under this statute is in contradiction of appellees' opening concession on brief that the statute does indeed discriminate on the basis of sex.3

Discrimination connotes unequal Treatment of similarly situated parties. Appellees argue that with respect to the Purposes of the statute, males and females are not similarly situated. The correctness of that contention is irrelevant to our analysis. Our inquiry must necessarily focus upon whether males and females are different in fact with respect to the definitional facts of the offense of which appellant was found guilty. Careful examination of Wark v. Robbins, 458 F.2d 1295 (1st Cir. 1972), cited by appellees in support of their contention, demonstrates that our focus in that case was cast in such terms.4

Under Section 3151, the act which triggers criminal liability is sexual intercourse penetration (however slight) of the female sex organ by the male sex organ. State v. Croteau, 158 Me. 360, 362, 184 A.2d 683, 684 (1962). While it may be argued that this is indeed "a unique physical act",5 the very definition of sexual intercourse adopted by the Maine courts precludes that act from being performed by a member of one sex without the participation of a member of the other. Section 3151 merely operates to punish the members of one sex for an act that both sexes simultaneously commit, at least in those cases wherein the female actor is below a certain age. The Maine court has characterized this statutory scheme as follows:

In short, section 3151 created a classification based on sex. It neither protected males under (fourteen) nor punished females for engaging in sexual intercourse with males below that age. State v. Rundlett, supra, at 817.

Because the gender-based classification within Section 3151 centers upon a punishable act which, stripped of its surroundings, circumstances, or consequences, is equally the product of male and female actors, the standard of review prescribed by Craig v. Boren, supra, is applicable, and the recent case of Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979) is distinguishable.6

The appellees further argue that viewing Section 3151 within the totality of the larger statutory scheme in effect at the time of appellant's conviction governing sex offenses involving minors, it may be concluded that male and female children were afforded equal protection, and that male and female offenders were equally subject to criminal sanction. But under Section 3151 all males, regardless of age or marital status, were subject to criminal sanction for penetration, however slight, of the sex organ of a female under fourteen years of age. By contrast, a female would escape such sanction from engaging in sexual intercourse with a male under fourteen years of age, unless the state chose to impose criminal liability upon her for adultery (if she were married) pursuant to 17 M.R.S.A. § 101 (repealed effective May 1, 1976), fornication (if she were unmarried) under 17 M.R.S.A. § 1551 (repealed effective May 1, 1976), or for taking indecent liberties (if she were twenty-one years of age or older) pursuant to 17 M.R.S.A. § 1951 (repealed effective May 1, 1976).7 Discounting the unlikely possibility of conviction for incest, adultery, or fornication,8 a female "offender" under the age of fourteen would escape sanctions pursuant to 17 M.R.S.A. § 1951, which reaches only offenders who have attained the age of twenty-one.

Further, regardless of the particular offense, if any, charged against a female engaging in sexual intercourse with a male under the age of fourteen, the consequences for a male convicted of the same act under Section 3151 alone are potentially more severe (punishment by imprisonment for any term of years) than the longest term of imprisonment that could be imposed upon a female (not more than ten years of hard labor under now-repealed Section 1951).9 While we do not here attempt analysis of the constitutionality of Maine's former statutory scheme of punishment for sex offenders, we conclude from the foregoing examination that male "offenders" were far more likely to be subject to prosecution for engaging in sexual intercourse with females under fourteen years of age than were females who engaged in the same conduct with males under the age of fourteen. In light of these observations, it can hardly be contended that the role of deterrence, and therefore the equal protection of potential male and female minor victims, was well served.

II

We now address the primary issue presented by this appeal: whether the district court erred in denying appellant's petition for a writ of habeas corpus, thereby upholding the constitutionality of 17 M.R.S.A. § 3151 under the standard of Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), and distinguishing our holding in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), Cert. denied, 436 U.S. 950, 98 S. Ct. 2858, 56 L. Ed. 2d 793 (1978).

As we have previously indicated, the former New Hampshire statutory rape statute invalidated in Meloon varies only slightly in wording and operation from 17 M.R.S.A. § 3151. However, standing alone, this factor does not trigger a similar finding of unconstitutionality in this case, for as we noted in Meloon,

We want to take care to indicate the limited nature of our holding. We have found only one particular statutory rape law to be unconstitutional. We have not reflected on nor do we intend to question the constitutionality of the laws of other states. We express no opinion as to whether on a different record some other statute would pass constitutional scrutiny.

564 F.2d at 609.

In Meloon, as here, allegedly uniquely female concerns were proffered in support of the gender-based classification embodied in the statutory rape law: The prevention of physical injury to young females resulting from sexual intercourse and the prevention of pregnancy in under-age female partners to that act. Neither rationale saved the statute in that case. With respect to the pregnancy prevention rationale, we noted that "New Hampshire presents us with not an iota of testimony or evidence that the prevention of pregnancy was a purpose of its statutory rape law. Indeed, all inferences that may be drawn from the materials presented to us are to the contrary". 564 F.2d at 607. Similarly, with respect to the concern for physical injury to female children, we commented that "the state has given us no sense of how common an occurrence this form of injury is . . . particularly in light of the 'penetration, however slight' definition of the offense". Id. at 608. Since we did not understand New Hampshire to argue that this form of injury was the exclusive danger (pregnancy aside) which its statute was designed to mitigate, and because we perceived "that the statute and its classification cover(ed) a far larger class (of females) than this justification would warrant", we found a lack of precision, insufficient to support the asserted connection

between (1) the fact that one subclass of one gender class of victims has some indeterminate likelihood of suffering an additional injury to which the other gender class is not susceptible and (2) the state's statutory scheme which penalizes only one gender exclusively and protects the other gender exclusively.

Id.10

In contrast with the complete lack of support for New Hampshire's rape law that generated our holding in Meloon, the district court in the case at bar noted the existence of extensive legislative history and supporting authority to back up Maine's asserted purposes of preventing physical injury and pregnancy in young females. Citing the history, language, and legislative scheme of Maine's statutory rape law as analyzed by the Supreme Judicial Court in State v. Rundlett, 391 A.2d 815 (Me.1978), the district court agreed with that highest state court that the statute we invalidated in Meloon was clearly distinguishable. Because both the opinion of the district court and the arguments put forth by the appellees on brief rely so heavily upon the analysis of the legislative purposes behind 17 M.R.S.A. § 3151 articulated by the Maine court in Rundlett, supra, we are faced with deciding how much deference we should accord its conclusions. Such a determination cuts to the heart of the ongoing interplay between state and federal judiciaries.

It is well-established law that "state courts are the ultimate expositors of state law" and the federal courts are bound by the constructions placed upon state statutes by state courts absent extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S. Ct. 1881, 1886, 44 L. Ed. 2d 508 (1975); Pagan Torres v. Negron Ramos, 578 F.2d 11, 14 (1st Cir.), Cert. denied, 439 U.S. 1005, 99 S. Ct. 619, 58 L. Ed. 2d 682 (1978). "Construction" in this sense refers to the structure of a statute, what its words mean, and how it operates. See, e. g. Wilbur v. Mullaney, 496 F.2d 1303, 1305 (1st Cir. 1974), Aff'd, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Brown v. Ohio, 432 U.S. 161, 167, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Gurley v. Rhoden, 421 U.S. 200, 208, 95 S. Ct. 1605, 44 L. Ed. 2d 110 (1975).

Where, as in the instant case, it is necessary to determine what governmental objections are sought to be served by a particular state statute, the views of the highest state court should also be given careful consideration. Reitman v. Mulkey, 387 U.S. 369, 376-79, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967). Of course, we need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrate that the asserted purpose could not have been a goal of the legislation. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Jimenez v. Weinberger, 417 U.S. 628, 634, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536, 537, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973); Weinberger v. Weisenfeld, 420 U.S. 636, 648 (1975).

In Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977), the court followed the "inquiry into actual purposes" approach of Weisenfeld to conclude that the intent of Congress differed from that represented by the Government. In Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the purpose of the enhancement of traffic safety that was suggested by the Oklahoma Attorney General was accepted as the basis for disposition of the case on the ground that the gender-based distinction contained in the challenged statute did not closely serve to achieve that objective.11 Likewise, in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), involving a challenge to the constitutionality of Alabama alimony statutes, the Supreme Court conceded the legitimacy of certain of the legislative objectives behind these statutes as proffered by the Alabama Court of Civil Appeals, and focused its analysis primarily on whether the gender-based classification therein was substantially related to achievement of those objectives.12 The case of Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), challenging a New York statute governing adoption of illegitimate children, appears to utilize this same analytical approach.

Viewing the Maine Supreme Judicial Court's analysis of the legislative history of 17 M.R.S.A. § 3151 in light of the above discussion, we feel it appropriate to accord some deference to that court's conclusions. This is especially true with respect to the Maine court's interpretation of the meaning of the words "perrilous to the life and well-being of the childe" found in a statutory antecedent to 17 M.R.S.A. § 3151, as reflecting the legislature's concern for the "special vulnerability of female children to physical injury from sexual intercourse. State v. Rundlett, 391 A.2d at 819. Indeed, we accept the Supreme Judicial Court's conclusion, from the presence of the above language, that " protecting the 'life and well-being' of young females was expressly declared as a Principal reason motivating the legislation from which the Maine statute currently under consideration directly derives." Id. at 820, n. 16. (Emphasis supplied.) From our own review of the history of 17 M.R.S.A. § 3151, we do not feel that this reason was in any way detracted from when the preamble in which the above words appeared was omitted upon consolidation in 1697 of the provisions governing forcible and statutory rape.13 See Commonwealth v. Roosnell, 143 Mass. 32, 38, 8 N.E. 747, 750 (1886). Nor do we perceive that prevention of physical injury became any less principal a reason when the Maine legislature raised the cut-off age for female victims from ten to thirteen in 1887 (P.L.1887, ch. 127, §§ 1, 2) and from thirteen to fourteen in 1889 (P.L.1889, ch. 180, §§ 1, 2).14 Appellant cites the Model Penal Code, Tentative Draft # 4, § 207.4, Comment 10, and Note: Forcible and Statutory Rape, 62 Yale L.J. 55 at 77 for the proposition that this extension of statutory coverage to females under fourteen effectively included sexually mature girls, I. e., girls with the physical capacity to engage in intercourse, for whom consensual sexual relations would unlikely produce physical harm. Yet the very age figures cited by appellant, as well as those cited by appellees, indicate that a significant number of females may not experience menarche, the appearance of periodic vaginal bleeding and the clinical indicator of sexual maturity (Danforth, Obstetrics and Gynecology 166, 3d ed., 1977), until age fourteen. And one study cited by both appellant and appellees indicates that the average age of menarche (now thirteen to fourteen according to that author) has become progressively earlier during the past century. Goldfarb, 20 Clin.Ob. and Gyn. 625 (1977).

In light of all the above, we see no reason to doubt the Maine Supreme Judicial Court's interpretation that prevention of physical injury constitutes a principal governmental objective underlying 17 M.R.S.A. § 3151. Nor do we feel it is appropriate to our function to question a legislative judgment that this objective is an important one. Of course, it remains for us to determine, under the standard set forth in Craig v. Boren, 429 U.S. at 197, 97 S. Ct. 451, 50 L. Ed. 2d 391, whether the gender-based classification embodied in the statute in question is substantially related to achievement of this objective. Because we find that the prevention of physical injury purpose of 17 M.R.S.A. § 3151 passes muster under the Craig standard, we need not address the question of whether Maine's suggested pregnancy prevention rationale also constitutes an "actual" purpose sufficient to justify the gender-based classification here challenged.15

With respect to the injury prevention rationale proffered by the State of New Hampshire in Meloon, we were concerned that the statute in that case and its classification scheme covered a far larger class of female victims than the injury prevention justification would warrant. 564 F.2d at 608. Moreover, neither the State's highest court (State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976)), nor the State's advocate in that case presented us with a sense of how common this form of injury was. As has been noted above, the age of female victims in the statute here in question is set lower than was the case in the New Hampshire statute in Meloon. Here, then, there is greater congruity between the class of victims and the potential risk of injury to them that is sought to be prevented. And in this case, the State of Maine's advocate has offered substantial statistical and medical evidence to support its contention that young females, unlike young males, are often victims of physical injury resulting from a crime that is predominantly committed by males.16 Although this evidence is open to varying interpretation, we are satisfied that the gender-based classification embodied in 17 M.R.S.A. § 3151 is a "proxy" sufficiently accurate for restricting potentially physically injurious sexual intercourse via its criminal sanction. Indeed, if it is accurate to say that physical injury resulting from sexual intercourse is uniquely suffered by young females, over and above whatever psychic injury they may suffer as often as young males, then the State may be further justified in subjecting only male "offenders" to additional sanction under 17 M.R.S.A. § 3151 over and above the penalties for adultery, fornication, or indecent liberties that may be imposed on offenders of either sex.17

In sum, we hold that 17 M.R.S.A. § 3151 (1964), and appellant's conviction thereunder, does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

Affirmed.

LEVIN H. CAMPBELL, Circuit Judge (concurring).

I join in upholding the Maine statute because, although it is much like the New Hampshire statute invalidated in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), this court carefully limited the reach of its opinion in Meloon, leaving room for upholding a similar statute if faced with a different record presenting more plausible or better substantiated legislative purposes that could meet the requisite degree of heightened scrutiny for sex-based classifications. See 564 F.2d at 607, 608. Unlike our dissenting colleague, I feel that the gaps noted in Meloon have been adequately filled in.

This is not to say that I rest easy with the kind of inquiry into legislative purposes that Meloon initiated.1 While there are cases where it is necessary to look into the motives of legislators, E. g., Personnel Administrator of Massachusetts v. Feeney, --- U.S. ----, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979), and while this is an area that has generated much recent comment, see the collection of articles in 15 San Diego L.Rev. 925 (1978), this is a path that presents great difficulties. As Chief Justice Warren pointed out,