Is it a crime for a male to be held responsible for the risk of pregnancy under section 261.5 of the Mississippi Code of Criminal Procedure?

Even if section 261.5 were actually intended to prevent pregnancy, its classification scheme nevertheless remains constitutionally deficient. The conduct that creates the risk of pregnancy is an act of sexual intercourse in which Both the male and the female participate. The act may have been solicited by the male, by the female, or simultaneously by both, and by definition it was wholly consensual. Thus when both parties participate in the decision to engage in the sexual act, each must be presumed equally responsible if pregnancy results. ⁴ Yet the statute, if it seeks to reduce pregnancy among unwed teenage girls, does so by punishing only the male for his part in this joint conduct. Although it is true that biologically only females can become pregnant, no compelling justification has been offered for holding the male but not the female criminally responsible for the same act. The statute is therefore impermissibly underinclusive. (See, e. g., Tatro v. State (Miss.1979) 372 So.2d 283 (statute making it a felony for a male but not a female to

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