IN THE SUPREME COURT OF IOWA
No. 07–0438
Filed November 14, 2008
STATE OF IOWA,
Appellee,
vs.
HOLLY MARIE MITCHELL,
Appellant.
Appeal from the Iowa District Court for Johnson County, Sylvia A.
Lewis, Judge.
A mother challenges the constitutionality of Iowa’s child
endangerment statute. AFFIRMED.
Daniel J. Vondra, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Janet M. Lyness, County Attorney, and Michael D.
Brennan and Anne M. Lahey, Assistant County Attorneys, for appellee. 2
BAKER, Justice.
A mother appeals from the judgment and sentence entered upon
her conviction for child endangerment. We are asked to decide whether
Iowa’s child endangerment statute, which defines child endangerment to
include a parent with custody or control over a child cohabiting with a
known sex offender, violates the Due Process Clauses and the Equal
Protection Clauses of the United States and Iowa Constitutions. We conclude error was not preserved on the due process claim. As for the
equal protection claim, under a rational-basis standard, there is a
reasonable fit between protecting children from sex crimes and limiting
contact between children and sex offenders by prohibiting an unmarried
parent from living with a person the parent knows to be a sex offender.
The disparate treatment of married and cohabiting individuals is neither
unreasonable nor arbitrary. We therefore affirm the district court’s
denial of the mother’s motion to declare the statute unconstitutional.
I. Background Facts and Proceedings.
Holly Mitchell is the mother and Nicholas Mitchell is the father of
two children, a daughter born in November 1999, and a son born in
January 2003. Holly and Nicholas were married in December 1999 and separated in March 2005. Holly moved to Coralville and moved in with
her boyfriend, Kelly Wade, in approximately July 2006. Wade is a
registered sex offender, convicted in 2000 for an out-of-state incident
involving indecent exposure to a seventeen-year-old female victim.
In October 2006, Nicholas and Holly made arrangements for the
children to spend a weekend with Holly because Nicholas had National
Guard duty. Holly was scheduled to work that weekend, and Nicholas
told her he did not want the children left alone with Wade. Holly assured
him that they would not be alone with Wade. 3
The daughter testified that she, her brother, and “Kelly” were at
Holly’s apartment during parts of the weekend that Holly was not there
and that her aunt and grandmother were there “when Mommy came.”
Holly’s mother testified that, although Wade was there when the children
were present, at no point was Wade left alone with the children. Holly’s
younger sister also testified that Wade was never left alone with the
children. Following the visitation, Nicholas contacted the Coralville Police Department and the Iowa Department of Human Services.
On November 16, Holly was charged by trial information with child
endangerment in violation of Iowa Code sections 726.6(1)(h) and 726.6(7)
(Supp. 2005). Holly entered a plea of not guilty and filed a motion
challenging the constitutionality of section 726.6(1)(h), which was denied.
The case proceeded to jury trial, and the jury found Holly guilty of child
endangerment. The district court imposed a sixty-day term of
incarceration and a $625 fine, which were suspended. Holly was placed
on supervised probation for one year. She appeals.
II. Scope of Review.
Our review of constitutional challenges to a statute is well
established:
We review challenges to the constitutionality of a statute de novo. Statutes are presumed to be constitutional, and a challenger must prove unconstitutionality beyond a reasonable doubt. The challenger must refute every reasonable basis upon which the statute could be found constitutional, and if the statute may be construed in more than one way, we adopt the construction that does not violate the constitution.
State v. Carter, 733 N.W.2d 333, 335 (Iowa 2007) (citing State v. Seering,
701 N.W.2d 655, 661 (Iowa 2005)) (other citations omitted). 4
III. Constitutional Claims.
Mitchell contends that Iowa Code section 726.6(1)(h) violates the
Due Process and Equal Protection Clauses of the United States and Iowa
Constitutions. In 2005, Iowa’s child endangerment statute was amended
to include knowingly cohabiting with a sex offender as a violation.
Pursuant to the statute:
A person who is the parent, guardian, or person having custody or control over a child or a minor under the age of eighteen with a mental or physical disability, or a person who is a member of the household in which a child or such a minor resides, commits child endangerment when the person ....
h. Cohabits with a person after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 692A. However, this paragraph does not apply to a person who is a parent, guardian, or a person having custody or control over a child or a minor who is required to register as a sex offender, or to a person who is married to and living with a person required to register as a sex offender.
Iowa Code § 726.6(1)(h).
A. Due Process. The State contends Mitchell failed to preserve
error on her substantive due process claim. “Issues not raised before the
district court, including constitutional issues, cannot be raised for the
first time on appeal.” State v. McCright, 569 N.W.2d 605, 607 (Iowa
1997) (citing State v. Wages, 483 N.W.2d 325, 326 (Iowa 1992)).
[A] mere assertion that a statute is “unconstitutional” does not encompass every conceivable constitutional violation. . . . [A] party challenging the constitutionality of a statute must alert the court to what specific constitutional provisions are allegedly compromised by the statute.
State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002).
Mitchell filed a pretrial motion to declare section 726.6(1)(h)
unconstitutional. In the motion, Mitchell contended the statute violates 5
her right to free association and equal protection and stated she will
submit a brief in support of the motion.1 In her brief, Mitchell raised and discussed at length the issue of “[w]hether Iowa Code § 726.6(1)(h) is
unconstitutional for violating Defendant’s right to privacy, freedom of
association, or intruding on a fundamental right.” Mitchell’s
supplemental brief in support of the motion clearly included her due
process arguments. At trial, she renewed the motion to dismiss based on
various constitutional grounds. In the order denying the motion,
however, the district court limited its conclusions to an equal protection
analysis.
Generally, we will only review an issue raised on appeal if it was first
presented to and ruled on by the district court. McCright, 569 N.W.2d at
607. The district court and opposing counsel received notice of the due
process claim. The district court did not, however, discuss or rule on
that claim. The defendant failed to file a motion to enlarge the trial
court’s findings or in any other manner have the district court address
this issue. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002)
(finding that a party must request a ruling from the district court to
preserve error for appeal on an issue presented but not decided). Accordingly, we determine that error was not preserved on Holly’s due
process claim, and we will only address the equal protection claim.
B. Equal Protection. Mitchell contends Iowa Code section
726.6(1)(h) violates the Equal Protection Clauses of the United States and
Iowa Constitutions because there is no rational reason to treat persons
who are married to and cohabiting with a sex offender differently from
1Mitchellraised a First Amendment claim in the district court, but does not raise that claim on appeal. 6
persons who are unmarried and cohabiting with a sex offender. This is
the sole classification challenged and, therefore, the only one we address.
“The Fourteenth Amendment to the United States Constitution and
article I, section 6 of the Iowa Constitution provide individuals equal
protection under the law. This principle requires that ‘similarly situated
persons be treated alike under the law.’ ” Wright v. Iowa Dep’t of Corr.,
747 N.W.2d 213, 216 (Iowa 2008) (quoting In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001)).
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Ry. Express Agency v. New York, 336 U.S. 106, 112–13, 69 S. Ct. 463,
466–67, 93 L. Ed. 533, 540 (1949) (Jackson, J., concurring).
The Equal Protection Clause does not deny states the power to treat different classes of people differently. It does, however, deny states
the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . . .”
Reed v. Reed, 404 U.S. 71, 75–76, 92 S. Ct. 251, 253–54, 30 L. Ed. 2d
225, 229 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S.
412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989, 990 (1920)) (other citations
omitted). 7
To determine whether a statute violates equal protection, we first
determine whether the statute makes a distinction between similarly
situated individuals. Wright, 747 N.W.2d at 216. Pursuant to section
726.6(1)(h), a parent commits child endangerment when she cohabits
with a person she knows to be a sex offender, but the statute “does not
apply . . . to a person who is married to and living with a person required
to register as a sex offender.” In each scenario, the parent is permitting her child to live with a registered sex offender, but the statute clearly
makes a distinction between unmarried parents or guardians of minor
children who cohabit with a registered sex offender and those who
cohabit with and are married to a registered sex offender. But for the
marriage distinction, the parents are similarly situated. The statute is,
therefore, subject to equal protection review.
We next determine whether to apply strict scrutiny or rational
basis in reviewing the statute. See id.
A statute is subject to strict-scrutiny analysis—the state must show the classification is narrowly tailored to a compelling state interest—when it classifies individuals “in terms of their ability to exercise a fundamental right or when it classifies or distinguishes persons by race or national origin.” All other statutory classifications are subject to rational-basis review in which case the defendant must show the classification bears no rational relationship to a legitimate government interest.
Id. (quoting Williams, 628 N.W.2d at 452).
Mitchell concedes that, because this court has not recognized
unmarried persons as a protected class, the statute is subject to rational
basis review. She argues, however, that Iowa Code section 726.6(1)(h)
violates her right to equal protection because the legislative decision to
distinguish between the two classes by subjecting only unmarried
couples to criminal charges for engaging in the same behavior as married 8
couples is arbitrary and irrational. She further argues that “[t]he
legislature drew an arbitrary line—marital status—with such a weak
relationship between classification and the purpose, that the
‘classification’ must be viewed as arbitrary and capricious.”
Under the rational-basis standard, a statute is constitutional if the
classification is reasonable and operates equally upon each person
within the class. State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999). “A classification ‘does not deny equal protection simply because in practice
it results in some inequality; practical problems of government permit
rough accommodations.’ ” Id. (quoting State v. Hall, 227 N.W.2d 192,
194 (Iowa 1975)). “[A]lthough the rational basis standard of review is
admittedly deferential to legislative judgment, ‘it is not a toothless one’ in
Iowa.” Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa
2004) (quoting Mathews v. de Castro, 429 U.S. 181, 185, 97 S. Ct. 431,
434, 50 L. Ed. 2d 389, 394 (1976)); see also Ames Rental Prop. Ass’n v.
City of Ames, 736 N.W.2d 255, 263–66 (Iowa 2007) (Wiggins, J.,
dissenting). “ ‘[O]ur obligation not to interfere with the legislature’s right
to pass laws is no higher than our obligation to protect the citizens from
discriminatory class legislation violative of the constitutional guaranty of equality of all before the law.’ ” Racing Ass’n of Cent. Iowa, 675 N.W.2d
at 16 (quoting Sperry & Hutchinson Co. v. Hoegh, 246 Iowa 9, 24, 65
N.W.2d 410, 419 (1954)).
The question for our determination, then, “is whether there is some
ground of difference that rationally explains the different treatment
accorded married and unmarried persons under” section 726.6(1)(h).
Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S. Ct. 1029, 1038, 31 L. Ed.
2d 349, 359 (1972). 9 Under rational-basis review, where a group possesses “distinguishing characteristics relevant to interests the State has the authority to implement,” a State’s decision to act on the basis of those differences does not give rise to a constitutional violation. “Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative “ ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ”
Bd. of Trs. v. Garrett, 531 U.S. 356, 366–67, 121 S. Ct. 955, 963–64, 148
L. Ed. 2d 866, 879 (2001) (quoting Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 441, 105 S. Ct. 3249, 3249, 87 L. Ed. 2d 313, 321 (1985);
Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d
257, 270 (1993) (other citations omitted)).
Mitchell does not argue that the government interest in protecting
children from sex offenders is not legitimate. Her argument, rather, is
that there is no rational distinction between a child living with a sex
offender to whom his or her parent is unmarried and living with a
stepparent who is a sex offender. She argues a child’s risk of suffering
sexual abuse is no greater in cohabiting households than in married
households. There is, however, nothing in this record to support
Mitchell’s assertion, and Mitchell has the “burden of negating all
reasonable bases that could justify the challenged statute.” Sanchez v.
State, 692 N.W.2d 812, 818 (Iowa 2005). The State asserts the
classification made by the legislature has a reasonable relationship to the
government’s interest in protecting children from sexual abuse because it
is rational to determine that a sex offender married to the parent will
have a greater sense of commitment to the family unit created by the
marriage and that the marital relationship may impose on the sex 10
offender greater financial and other obligations toward the family, so that
the sex offender feels he or she has a stake in the well-being of the
children.
We have previously stated that one aspect of cohabitation is the
“[j]oint use or ownership of property.” State v. Kellogg, 542 N.W.2d 514,
518 (Iowa 1996) (quoting People v. Holifield, 252 Cal. Rptr. 729, 734 (Cal.
Dist. Ct. App. 1988)). It follows that sex offenders who cohabit with a person with control or custody of his or her minor children also share
living quarters with the children and have joint use of the children’s
home. See id. at 517 (stating under common meaning of term
“cohabiting,” persons who are “cohabiting” live together). This living
arrangement allows the sex offender access to the children in their home,
a place traditionally and constitutionally protected from public intrusion.
It also potentially allows unlimited and unmonitored access to children
during those early morning and nighttime hours typically devoted to
private activities such as bathing, changing clothes, and bedtime. It is
this access the State seeks to control.
From Kellogg we can also discern that cohabiting is more than
simply living together, even though it is not tantamount to marriage. Along with sharing living quarters and expenses and joint use of
property, we have identified “sexual relations,” “[t]he continuity of the
relationship,” and “[t]he length of the relationship” as appropriate
considerations for determining whether a couple is cohabiting. Id. at
518. These considerations indicate that, in a cohabiting relationship, the
sex offender may have some financial obligation and stake in the
children’s well-being, but we do not believe that these considerations
compel us to find that a cohabiting sex offender would have a financial
obligation and stake in the children’s well-being as great as that of a 11
stepparent. The legislature could reasonably conclude that unmarried
cohabitation of a parent with a sex offender poses greater danger to
children than cohabitation between married persons.
“ ‘As long as the classificatory scheme chosen by [the legislature]
rationally advances a reasonable and identifiable governmental objective,
we must disregard the existence of other methods of allocation that we,
as individuals, perhaps would have preferred.’ ” Sanchez, 692 N.W.2d at 818 (quoting Schweiker v. Wilson, 450 U.S. 221, 235, 101 S. Ct. 1074,
1083, 67 L. Ed. 2d 186, 198 (1981)). We are not so naïve as to believe
that marriage is a panacea; however, the legislative majority could
reasonably conclude that unmarried cohabitation of a parent with a sex
offender poses greater danger to children than cohabitation between
married persons.
Section 726.6(1)(h) seeks to protect children from sex crimes by
minimizing sex offenders’ access to children where and when they are
most vulnerable. See Doe v. Miller, 405 F.3d 700, 715 (8th Cir. 2005)
(restricting access of sex offenders to children is a legitimate purpose);
Seering, 701 N.W.2d at 665 (preventing sex offenders from reoffending is
a government interest). The legislature could have reasonably determined its chosen classification scheme, which differentiates
between cohabitants who are married and those who are unmarried,
would rationally advance the government objective of protecting children
from sex offenders. “The court’s power to declare a statute or ordinance
unconstitutional is tempered by the court’s respect for the legislative
process. Under the rational basis test, we must generally defer to . . .
legislative judgment.” Ames Rental Prop. Ass’n, 736 N.W.2d at 263.
Under the rational basis test we conclude the statute does not violate the
Equal Protection Clauses of the United States and Iowa Constitutions. 12
Mitchell also contends that “Iowa Code section 726.6(1)(h) is
overbroad and criminalizes the behavior of unmarried people who have
not placed their children in danger.” Even under the rational basis test,
a statute may be unconstitutional if it is so overinclusive and
underinclusive as to be irrational. Racing Ass’n of Cent. Iowa, 675
N.W.2d at 10. We have stated that “ ‘[c]lassifications do not deny equal
protection simply because they result in some inequality.’ ” Claude v. Guar. Nat’l Ins. Co., 679 N.W.2d 659, 665 (Iowa 2004) (quoting Bierkamp
v. Rogers, 293 N.W.2d 577, 581 (Iowa 1980)). A statute may not provide
perfect justice, but it does not violate equal protection unless it results in
such injustice as to be irrational and arbitrary. Id. Just because this
law does not protect all children from having a sexual offender living in
their home does not make it a violation of equal protection. Similarly, a
net that catches more than intended does not necessarily violate equal
protection. A law need not right all possible harms in order to be
constitutional. In re Morrow, 616 N.W.2d 544, 549 (Iowa 2000). In
determining whether a classification is so overinclusive and
underinclusive as to be irrational, we have set forth the following test:
[T]his court must first determine whether the Iowa legislature had a valid reason [for the classification]. In this regard, “the statute must serve a legitimate governmental interest.” Moreover, the claimed state interest must be “realistically conceivable.” Our court must then decide whether this reason has a basis in fact.
Racing Ass’n of Cent. Iowa, 675 N.W.2d at 7–8 (quoting Glowacki v. State
Bd. of Med. Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993); Miller v. Boone
County Hosp., 394 N.W.2d 776, 779 (Iowa 1986)) (other citations
omitted).
Although we are not bound to accept at face value the State’s
conclusion that unmarried sex offenders pose a greater risk, our role in 13
the absence of contrary evidence is to determine if the State’s asserted
reasons for the statute are plausible, realistically conceivable, and have a
basis in fact. Id. at 8 n.4.
We conclude that the classification scheme is plausible under this
record. As previously noted, the legislative majority could realistically
conceive that unmarried cohabitation of a parent with a sex offender
poses greater danger to children than cohabitation between married persons. The fact that not all sex offenders pose a threat to children is
not so overinclusive as to violate equal protection. Mitchell has the
burden of showing that there is not a plausible policy reason for the
classification, that the claimed state interest is not realistically
conceivable, or that the classification has no basis in fact. Mitchell has
not met her burden to establish that the classification chosen by the
legislature for the protection of children is so attenuated as to render it
arbitrary or unreasonable under this record. Therefore, the statute does
not violate the Equal Protection Clauses of the United States and Iowa
Constitutions.
IV. Disposition.
Iowa Code section 726.6(1)(h) does not violate equal protection based on its disparate treatment of married and cohabiting individuals.
This classification is not unreasonable or arbitrary, nor so overinclusive
as to be irrational. The objective of the statute is to protect children from
sex crimes by limiting contact with registered sex offenders, who are
neither a parent nor stepparent. The legislature could rationally make
this classification because it is realistically conceivable that unmarried
cohabitating sex offenders do not have the same stake in the children’s
financial and physical well-being, and therefore pose a greater threat to
the children. There is a rational relationship between the Legislature’s 14
goal of protecting children and the statute, and therefore we affirm the
district court’s denial of Mitchell’s motion to declare the statute
unconstitutional.
AFFIRMED.
All justices concur except Wiggins and Hecht, JJ., who dissent. 15
#89/07–0438, State v. Mitchell
WIGGINS, Justice (dissenting).
It is the exclusive prerogative of this court to determine the
constitutionality of Iowa statutes challenged under article I, section 6,
the equal protection clause of the Iowa Constitution. Callender v. Skiles,
591 N.W.2d 182, 187 (Iowa 1999). Even if the Iowa Constitution and the
United States Constitution are similarly or identically phrased, we can
independently consider Iowa constitutional arguments. Racing Ass’n of
Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004) (citing William J.
Brennan, Jr., State Constitutions and the Protection of Individual Rights,
90 Harv. L. Rev. 489, 500 (1977)). “This result is particularly possible in
view of ‘the ill-defined parameters of the equal protection clause.’ ” Id.
(quoting Miller v. Boone County Hosp., 394 N.W.2d 776, 781 (Iowa 1986)).
Our case law gives us the analytical framework to decide whether a
statute violates the equal protection clause of the Iowa Constitution.
Racing Ass’n of Cent. Iowa, 675 N.W.2d at 7–9. In analyzing an equal
protection challenge under the Iowa Constitution, we must first
determine whether the legislature had a valid reason to treat a person
cohabitating with a sex offender differently than other persons who have
a relationship with a sex offender. Id. at 7. This determination requires
us to find a plausible policy reason for the classification. Id. In making
this determination, our court must not only ask whether the statute
serves a legitimate government purpose, but also whether the claimed
state interest is realistically conceivable. Id. Second, we must decide
whether the State’s claimed reason has a basis in fact. Id. at 7–8. To
decide whether the State’s claimed reason has a basis in fact, we must
determine whether the legislature could rationally believe facts upon
which the classification is based are true. Id. at 8. Lastly, we must 16
consider whether the relationship between the classification, i.e., the
differences between persons cohabitating with sex offenders and persons
with other relationships to sex offenders, and the purpose of the
classification is so weak that the classification must be viewed as
arbitrary. Id. In other words, to uphold the statute, we must conclude
“the relationship of the classification to its goal is not so attenuated as to
render the distinction arbitrary or irrational.” Nordlinger v. Hahn, 505
U.S. 1, 11, 112 S. Ct. 2326, 2332, 120 L. Ed. 2d 1, 13 (1992) (citations
I cannot agree with the majority’s conclusion that “unmarried
cohabitation of a parent with a sex offender poses greater danger to
children than cohabitation between married persons” because as the
majority contends
a sex offender married to the parent will have a greater sense of commitment to the family unit created by the marriage and that the marital relationship may impose on the sex offender greater financial and other obligations toward the family, so that the sex offender feels he or she has a stake in the well-being of the children.
The Code does not define cohabitation. Our existing case law
defines cohabitation as having two elements. In re Marriage of Gibson,
320 N.W.2d 822, 824 (Iowa 1982). First, an unrelated person must be
living or residing in the dwelling. Id. Second, the two unrelated persons
must be living together in the manner of husband and wife. Id. In other
words, cohabitation is essentially a marriage without the license. The
commitment to the family unit, the financial obligations, and other
obligations of a cohabiter to maintain the family unit is no more or less
than that of a married individual. It is absurd to think that the financial
implications of a dissolution will provide a greater deterrent than the stiff
criminal penalties the legislature has enacted for sex offenders. 17
Moreover, our present laws allow the department of social services to
remove a child from the home of a sex offender. Accordingly, I would
hold the relationship of the classification, marriage versus cohabitation,
to the goal of protecting children living in the home with a sex offender is
so attenuated as to render the distinction arbitrary or irrational.
This attenuation is amplified when we employ an overinclusive-
underinclusive dichotomy analysis under the Iowa Constitution to
determine whether the relationship of the classification to its goal is not
so attenuated as to render the distinction arbitrary or irrational.
Compare Racing Ass’n of Cent. Iowa, 675 N.W.2d at 10 (finding the
legislative purpose behind a taxation provision cannot withstand rational
basis review because of the extreme degrees of overinclusion and
underinclusion), and Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa
1980) (finding a classification based on extreme degrees of overinclusion
and underinclusion cannot pass rational basis review), with Vance v.
Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 948, 59 L. Ed. 2d 171, 183
(1979) (demonstrating the United States Supreme Court’s tolerance for
laws that are overinclusive and underinclusive when conducting a
rational basis review). When we find “a classification involves extreme
degrees of overinclusion and underinclusion in relation to any particular
goal,” then that statute fails rational basis review. Bierkamp, 293
N.W.2d at 584; see also Racing Ass’n of Cent. Iowa, 675 N.W.2d at 10.
Section 726.6(1)(h)’s reach is limited. It provides:
1. A person who is the parent, guardian, or person having custody or control over a child or a minor under the age of eighteen with a mental or physical disability, or a person who is a member of the household in which a child or such a minor resides, commits child endangerment when the person does any of the following:
... 18 h. Cohabits with a person after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 692A. However, this paragraph does not apply to a person who is a parent, guardian, or a person having custody or control over a child or a minor who is required to register as a sex offender, or to a person who is married to and living with a person required to register as a sex offender.
Iowa Code § 726.6(1)(h) (Supp. 2005). Cohabitation is fact specific and
applies to a very narrow range of relationships. Compare In re Marriage
of Gibson, 320 N.W.2d at 824 (finding that an unrelated male who spent
four nights a week at his girlfriend’s house, maintained an ongoing
sexual relationship with her, ate meals at her house, but did not share
expenses or have unlimited access to the house was not cohabitating),
with In re Marriage of Harvey, 466 N.W.2d 916, 917–18 (Iowa 1991)
(finding that an unrelated male who spent five nights a week at his
girlfriend’s house, maintained an ongoing sexual relationship with her,
ate meals at her house, shared expenses, and had unlimited access to
the house was cohabitating).
The relationships not covered by this statute include persons
married to a sex offender, persons living with a sex offender, but not
cohabitating, persons having a serious dating relationship with a sex offender, persons having a casual dating relationship with a sex offender,
persons who are friends with a sex offender, persons who are
acquaintances of a sex offender, persons who are related to a sex
offender, and persons who hire a sex offender to do work for them. In
each of these situations, the sex offender may have access to a child in
the home. Moreover, access by some of these individuals may be
unlimited.
The relationship that section 726.6(1)(h) criminalizes makes the
statute both overinclusive and underinclusive. Further, the degree to 19
which this overinclusiveness and underinclusiveness is present is
extreme because it is irrational to suppose a sex offender cohabitating in
a person’s home will have greater access to a child in that home than a
sex offender who is married to the person, a sex offender who is living
with the person, but not cohabitating, a sex offender who is having a
serious dating relationship with the person, a sex offender who is having
a casual dating relationship with the person, a sex offender who is a
friend to the person, a sex offender who is acquainted with the person, a
sex offender who is related to the person, and a sex offender who is hired
by the person to do work for them. The extreme overinclusiveness and
underinclusiveness of the statute makes the relationship between the
classification and the legislative purpose of keeping sex offenders from
having access to children arbitrary; therefore, the statute does not
withstand review under the rational basis test we have developed under
the Iowa Constitution. See Racing Ass’n of Cent. Iowa, 675 N.W.2d at 10
(finding the legislative purpose behind a taxation provision cannot
withstand rational basis review because of the extreme degrees of
overinclusion and underinclusion); Bierkamp, 293 N.W.2d at 584 (finding
the Iowa guest statute does not rationally further the legitimate state
purpose of preventing collusive recoveries from insurance companies);
Fed. Land Bank v. Arnold, 426 N.W.2d 153, 157 (Iowa 1988) (holding
discrimination in redemption periods violated the equal protection clause
where class membership did not correlate with purported class
distinctions drawn by legislature); Chicago & N.W. Ry. v. Fachman, 255
Iowa 989, 997, 125 N.W.2d 210, 214 (1963) (“It is often said a reasonable
classification is one which includes all who are similarly situated, and
none who are not.”); Dunahoo v. Huber, 185 Iowa 753, 756, 171 N.W.
123, 124 (1919) (finding statute violated state constitution because 20
classification made by legislature was unwarranted “where the evil to be
remedied relates to members of one class quite as well as to another”). Accordingly, I would find the statute unconstitutional under the
equal protection clause of the Iowa Constitution.
Hecht, J., joins this dissent.