Defendant talks in a chat room with a 16-year old girl. They fall in love. They have cybersex, which entails mutual masturbation over the internet while watching pornographic videos and telling each other what they'd like to do to each other if they weren't two thousand miles apart.
Put to one side that defendant lies about being 17 when he's really 59. Also put aside the fact that the age of consent in Indiana -- where the girl is located -- is 16. There's a whole lot of other stuff to put aside as well; feel free to read the whole opinion if you'd like.
Here's the issue:
Defendant's convicted under Section 288.3(a) of the Penal Code, which makes it a crime to contact a minor for the purpose of committing various crimes; in particular, here, the crime of sexual penetration of a minor. What "sexual penetration" did defendant try to encourage? Masturbation. Since he told the victim that he'd like her to play with herself, and she did, he's guilty. Because during the process, she "penetrated" herself -- "however slight" -- with her own finger, which counts as a "foreign object".
Defendant has a lot of arguments against that conviction, but the only one I'll mention is his claim that if that's really what the statute means, it's irrational and violates the Equal Protection Clause. Because the statute criminalizes convincing a 16-year old two thousand miles away to masturbate, but does not criminalize convincing a 16-year old two thousand miles away to have actual sex. Since "penetration" is one of the enumerated offense, but sex is not. Surely actual statutory rape is worse than consensual masturbation, no? So it's irrational to criminalize one but not the other.
The Court of Appeal "commend[s] defense counsel for his clever argument." So I'll mention his name: Richard Power. (Note to Rich: Take care of yourself. Of the six "Richard Power/s" ever to join the California Bar, four are already dead. Only two remain. That's a pretty high mortality rate for a single name.)
But Justice Ikola has a response. He says that the statute makes sense because the Legislature could rationally conclude that consensual masturbation is, indeed, worse for a minor than actual sex. To use his words: "Foreign objects may be of varying degrees of size, shape, or texture, and thus present potential dangers to a minor’s genitals or anal opening greater than simple consensual intercourse. Thus the Legislature could rationally conclude that vaginal or anal penetration with a foreign object is more harmful than intercourse between a 16 or 17 year old minor and an adult."
I agree that one of these arguments is too clever by half. Is it the defendant's, or is it the Court of Appeal's?
