United States v. McDonald Hicks, Eli Davis, Jr.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and TANG, Circuit Judges, and WHELAN, District Judge.

The government appeals the dismissal of an indictment against Hicks and Davis alleging against Davis two counts and against Hicks one count of carnal knowledge of a female Indian under 16 years of age in violation of 18 U.S.C. § 1153 and § 2032. In response to arguments that the statutes’ classification on the basis of gender denies equal protection under the law, the district judge dismissed the indictment. We affirm.

I

We first determine the proper standard of scrutiny to be applied in assessing the constitutionality of the statutes in question. The government does not dispute that the statutes classify on the basis of gender. Hicks and Davis argued before the district judge that only males can be perpetrators, and only females victims, of the crime of carnal knowledge. The statutes assign the roles of victim and criminal on the basis of gender. Had Hicks and Davis been female, they would not have been charged, and the statute thus discriminates against males.

Because federal statutes are before us, we examine the…