"If any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor . . ." Code Ann. 74-9902 (a) (Ga. L. 1866, p. 151, superseded by Ga. L. 1980, pp. 1374, 1378). 1
Case No. 36614 is a misdemeanor prosecution against the father for abandonment of an illegitimate child. Case No. 36615 is a misdemeanor prosecution against the father for abandonment of two legitimate children by failing to pay child support pursuant to a court order. The accusation in each case was filed in January of 1979.
In both cases, demurrers to the accusations were filed on the ground that Code Ann. 74-9902, and the related statutes 2
under which these prosecutions were brought, are gender discriminatory and, therefore, deny the fathers equal protection under Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979).
In Case No. 36614, it was also alleged that there has been a selective enforcement of abandonment cases against illegitimate fathers, thereby resulting in another denial of equal protection. 3
Yick Wo v. Hopkins, 118 U. S. 356 (6 SC 1064, 30 LE 220) (1885). The court agreed with the foregoing arguments and entered orders quashing the accusations. The state appeals. We reverse.
acquitted by reason of the fact that such person is not the father or mother of the allegedly abandoned child, such person cannot thereafter again be tried for the offense of abandoning the child. Paragraph (d) provides that a father convicted of abandoning an illegitimate child shall be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child. See Perini v. State, 245 Ga. 160 (1) (264 SE2d 172) (1980)
. Paragraph (e) provides that the accused father and mother of the illegitimate child may enter into a written agreement providing for the support of the child by payments to the mother. Paragraph (f) provides that upon the trial of the accused father, it shall be no defense that he has never supported the child. Paragraph (g) provides for venue in child abandonment cases. Paragraph (h) (1) and (2) provide for paternity blood tests in cases in which the question of parentage arises. Only paragraphs (h) (1) and (2) were altered by the 1980 reenactment of 74-9902.
they relate to prosecutions for abandonment of illegitimate children. "The statutory scheme relating to illegitimate children and remedies available to the state at the time of this offense (Code Chapters 74-1; 74-2; 74-3 and 74-9901 and 74-9902) require support from both parents and both are subject to criminal prosecution." Hudgins v. State, supra, (1).
Likewise, the statutory scheme relating to legitimate children renders both parents subject to criminal prosecution. Therefore, we hold that the statutory scheme is constitutional as related to both legitimate and illegitimate children.
2. The argument that discriminatory enforcement of a state penal statute results in a denial of equal protection barring the prosecution of the party discriminated against has its origin in Yick Wo v. Hopkins, supra. Yick Wo involved a prosecution for violation of a municipal ordinance requiring a permit for the maintenance of a laundry in a building not made of brick or stone. There is a division of authority on the question of whether the rationale of Yick Wo is applicable to cases involving prosecutions for state penal offenses. See 95 ALR3d 280, Anno., What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings. In Georgia, it has been held that the fact that, "[o]ther persons or classes of persons may have violated the law without being prosecuted therefor is no excuse for a violation by the defendant." Cone v. State, 184 Ga. 316, 324 (191 SE 250) (1937).
Even in jurisdictions which hold that a claim of discriminatory enforcement of a state penal statute is a valid defense to a criminal charge, in order to establish such a claim it is insufficient merely to show that other offenders have not been prosecuted. Moss v. Horning, 314 F2d 89 (2d Cir. 1963). The party seeking to prove unconstitutionally discriminatory enforcement of the law under Yick Wo has the burden of presenting sufficient evidence to establish the existence of intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications. Oyler v. Boles, 368 U. S. 448 (82 SC 501, 7 LE2d 446) (1962). Although there was testimony at the hearing below that a prosecution for child abandonment has not been brought against an illegitimate mother in the State Court of Cobb County within either the solicitor's or the trial judge's memory, the solicitor testified that no illegitimate mothers had been
prosecuted during his term in office because no warrants have been sworn out against them. 4
This testimony, which is uncontradicted, belies the assertion that there has been intentionally discriminatory enforcement of 74-9902 against illegitimate fathers during this time period.
G. Roger Land, Janet F. Perlman, for appellee (case no. 36615).