People v. Liberta, 64 N.Y.2d 152 (1984)

FULL OPINION

CASE: Man appeals conviction for raping and sodomizing his wife.

FACTS: Denise and Mario were separated by Family Court order when he got her and their 2-and-a-half-year-old son in a hotel room, forced her to perform fellatio on him and raped her (all while making his wife tell their son to watch what his father was making his mother do). He was indicted on chargesd of rape in the first degree and sodomy; the trial court dismissed the indictment on the "marital exception" to rape; the appellete division reinstated the indictment and the defendant was convicted of rape in the first degree and sodomy in the first degree; the conviction was affirmed by the appellate division; defendant appealled to the Court of Appeals.

DEFENDANT ARGUES:

  1. The temporary order of protection from the Family Court was not the type of order which enables a court to treat him and his wife as "not married" because it did not mandate that the two be separated, only that he remain away from her.
  2. Assuming that because of the Family Court order he is treated just as any unmarried male would be, defendant cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes violate the Equal Protection Clause by burdening only men and not women. The statutes criminalizing both acts are underinclusive classifications which burden the defendant but not others similarly situated.

STATE ARGUES:

  1. In 1978, the legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to a court order "which by its terms or in its effect requires such living apart."
  2. Traditional and modern justifications for the marital exemption for rape:
    1. A husband cannot be guilty of raping his wife because she consented to sex when she married him. ("[T]he husband cannot be guilty of a rape committed by himself upon his wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.").
    2. ADVANCED BY THE STATE: A woman was the property of her husband and the legal existence of the woman was "incorporated and consolidated into" that of the husband.
    3. The marital exemption protects against governmental intrusion into marital privacy and promotes reconcilation of the spouses, thus, the elimination of the exemption would be disruptive to the parties.
    4. Marital rape would be a difficult crime to prove.
    5. Marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment.
  3. The rape statute is properly written to protect females because only females can become pregnant.
  4. Discrimination in the rape laws is justified because a female rape victim "faces the probability of medical, sociological, and psychological problems unique to her gender."
  5. A gender-neutral law for forcible rape is unnecessary, and that therefore, the present law is constitutional because a woman either cannot actually raoe a man or such attacks, if possible, are extremely rare.

COURT SAYS: Conviction affirmed.

HOLDINGS:

  1. Appellate Division did not err in considering defendant husband "not married" for the purposes of the New York Penal Law rape statute where the man raped his wife while they were living apart pursuant to a Family Court order.
  2. The marital exception under which men cannot be convicted of raping their wives is a violation of the equal protection clause because there is no rational basis for distintuishing between marital rape and nonmarital rape.
  3. Statute exempting females from criminal liability for forcible rape while holding men responsible violates the equal protection clause of the Fourteenth Amendment.

RATIONALE:

    Marital exemption:
    • Where a staute draws a distinction based upon marital status, the classification must be reasonable and must be based upon "some ground fo difference that rationally explains the different treatment". There is no rational basis for distinguishing between marital rape and nonmarital rape.
    • CONSENT AT MARRIAGE: Rape is not a sexual act to which one party does not consent, but rather a violent and degrading act which violates the bodily integrity of the victim; a married woman has the same right to have control over her body as does an unmarried woman.
    • GOVERNMENT INTRUSION: The right of privacy protects consensual acts, not violent sexual assaults; it is the act of rape which disrupts the marriage, not the criminal prohibition against it.
    • DIFFICULT CRIME TO PROVE: All rapes are difficult to prove, especially when the victim and the defendant know one another; the criminal justice system is presumed to be capable of handlingg any false complaints of "vindictive wives."
    • BETTER DEALT WITH UNDER ASSAULT STATUTES: Rape is not merely an assault, but something much more; there is no evidence to support the contention that marital rape has less severe consequences than other rape.

    Exemption for females:
    • DISTINGUISH FROM STATUTORY RAPE: There is no evidence that preventing pregnancies is a primary purpose of the statute prohibiting rape (as is the case with statutory rape). Thus, due to the different purposes behind forcible rape laws and statutory rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former.
    • The physiologically impossible argument is wrong: penetration can be acheived even when the man is not aroused and, therefore, without his consent.
    • The fact that attacks of females on males or females on females are rare makes them no more constitutional. The only persons benefitting from these laws are females who forcibly rape males.
    • This case was decided on a wrong legal theory—negligent infliction of emotional distress. Since this theory is not recognized in the state of Texas, the lower court's ruling must not stand.
    • This court has broad discretion to remand for a new trial in the interest of justice and when it appears that the facts when developed at trial may support recovery on an alternative theory.

TO NOTE: The court was able to have its cake and eat it too in this case. Although it found the stautes under which the defendant, an admittedly bad, bad man, was convicted and imprisoned, it did not overturn his conviction and set him free or remand for a new trial. Rather, it concluded that the Legislature would prefer to eliminate the exemptions (marital, gender) and preserve the statutes, an interesting bit of judicial legislation. Because the statutes under which the defendant was convicted were not, then, stuck down (only the bad parts), his conviction could be affirmed. To reverse would have disastrous effects on rapists in prison and those pending trial for rape, the Court noted.


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