Home Law Enforcement Legal Perspective: Men and Women Often Receive Disparate Sentences in Sex Cases

Legal Perspective: Men and Women Often Receive Disparate Sentences in Sex Cases


By Gary Minor, criminal justice faculty at American Military University

In cases involving allegations of sexual misconduct, males are often given harsher sentences than females in similar situations. Is this fair in the eyes of the law?

Some states even have laws that allow different punishments based on gender. For example, California Penal Code Sec. 261.5 makes it a crime for a male to have sex with a female under 18 years of age who is not his spouse. However, there are no provisions for those who have sex with males under the age of 18.

There have been several cases where individuals who were convicted under the state’s statutory rape law went before the U.S. Supreme Court, citing violations of the Fourteenth Amendment’s Equal Protection Clause, which prohibits states from denying any person equal protection under the law.

In Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 in March 1981, a 17-year-old male was charged with statutory rape for having intercourse with a 16-year-old female, but argued that the law discriminated based on gender and was unconstitutional. However, the Supreme Court ruled that sexual intercourse entails a higher risk for women and upheld the law as constitutional.

The U.S. Supreme Court has ruled that because of the medical and psychological issues, it is appropriate for there to be disparate sentences for men and women. Women face pregnancy and the associated issues involving sex, whereas men do not. In addition, there are STDs that affect females and can cause sterility. Therefore, because the dangers and medical issues are greater for women than men, harsher punishment is appropriate.

In the case of Walley v. State, 25 So. 3d 386 – Mississippi Court of Appeals, 2009, the co-defendants, a husband and wife, were charged and convicted of statutory rape and lustful touching of a child. The husband was sentenced to 20 years, 15 years to serve, 5 years suspended, and 5 years’ probation while the wife was sentenced to 20 years, with 3 years to serve and 17 years suspended. The husband appealed his sentence based upon disparate treatment in sentencing.

The court in part justified its decision using Michael M. v. Superior Court of Sonoma County, saying: “courts have recognized that disparate treatment of males and females may be warranted in some sexual abuse cases. The United States Supreme Court has found that a statute which criminalized only males who committed the act of illicit sexual intercourse with a minor female did not violate the Equal Protection Clause.”

Although we all feel that everyone should be treated the same, it is not the duty of the Equal Protection Clause to place everyone on even footing. Although the crime may be the same, the consequences to the victims are not. These consequences lead to differences in sentencing.

Do you agree with the Supreme Court’s justification regarding the constitutionality of such legislation? Why or why not?

Gary MinorAbout the Author: Gary Minor completed his bachelor’s degree in Police Science and Administration with a minor in pre-law from Washington State University and his MBA in Information Systems at City University in Washington. After completing his MBA, he attended Seattle University School of Law and obtained his Juris Doctorate of law. He also obtained his police executive certification, a requirement to be a police chief executive of a law enforcement agency in Washington. His academic interests include police executive management, law and justice, juvenile justice and ethics in law enforcement. Professor Minor has significant executive experience, having served as a Chief of Police, President of the Snohomish County Police and Sheriff’s association and the South Snohomish County Police Advisory committee. He also served two terms as the Chairman of the Board for Emergency Services Coordinating Agency (ESCA), a FEMA affiliate.


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