concurring:

I concur in the order of the majority and add what I believe to be a proper explanation of the posture of this case.

The Supreme Court vacated and remanded our initial disposition of this case, 625 F.2d 216 (9th Cir. 1980), vacated, — U.S. —, 101 S.Ct. 1752 , 68 L.Ed.2d 233 (1981), in light of its decision in Michael M. v. Superior Court, 450 U.S. 464 , 101 S.Ct. 1200 , 67 L.Ed.2d 437 (1981). In Michael M., the Court rejected a claim that a California statutory rape law violated the Equal Protection Clause of the Fourteenth Amendment. The Court had before it the finding of the California Supreme Court that the gender-based classification in the statute was designed to prevent illegitimate teenage pregnancies. The Supreme Court observed that the finding of the California Supreme Court was entitled to great deference.

In our original opinion, we did not hold that statutory rape statutes that punish only the male are unconstitutional. The opinion does not turn on whether the Equal Protection Clause was violated, but focuses on the question of the burden of proof. Relying on the Supreme Court and our own cases, we held that “once an appropriate party invokes constitutional scrutiny of a statutory gender-classification, the government must shoulder the burdens of producing evidence and proving a eonstitutionallysufficient justification.” 625 F.2d at 219 (footnote omitted). There is no question but that the statute contains a gender-classification: under the statute only men can be prosecuted. Thus, the burden of demonstrating the constitutionality of the statute fell on the government.

It is clear, at least prior to Michael M., that the government’s burden included the production of evidence to demonstrate what the objectives of the statute are and how those objectives are substantially furthered by punishment only of the male. I do not read Michael M. to have changed that rule. In the case before us, the government simply failed to produce any evidence. The government merely made unsupported assertions of statutory purpose. As our opinion concludes:

Id. at 220-21 .

Michael M. apparently had a different factual record than the one before us. In Michael M., the Court stated:

450 U.S. at 470 , 101 S.Ct. at 1205 (citations omitted).

We still have before us no finding concerning the purpose of the statute before us. Nonetheless, since Michael M., our court has decided the legal question before us. Another panel of this court, undoubtedly with a fuller factual record before it, held that 18 U.S.C. § 2032 , the statute involved in the case before us, does not deny *246 equal protection of the law. United States v. Sangrey, 648 F.2d 597 (9th Cir. 1981). Therefore, I concur that we should reverse the dismissal of the indictment against Hicks and Davis, and remand for further proceedings.