The Facts:
Sometime in 1978, defendant and his wife got married. In October of that year, shortly after the birth of their son, defendant began to beat his wife.
In early 1980, the wife brought a proceeding in the Family Court in Erie County seeking protection from the defendant.
On 30 April 1980, a temporary order of protection was issued to the wife by the Family Court. The defendant was ordered to move out and remain away from the family home, and stay away from his wife. A New York DWI Lawyer said the order provided that the defendant could visit with his son once each weekend.
On 21 March 1981, defendant who was then living in a motel did not visit his son. On 24 March 1981, he called his wife to ask if he could visit his son on that day. The wife would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up the wife and their son and the four of them drove to defendant’s motel. When they arrived at the motel, the friend left. As soon as only the defendant, his wife, and their son were alone in the motel room, defendant attacked the wife, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the defendant forced his wife to tell their son to watch what the defendant was doing to her. The defendant allowed his wife and their son to leave shortly after the incident.
The wife, after going to her parents’ home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant.
On 15 July 1981, the defendant was indicted for rape in the first degree and sodomy in the first degree; that defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2 1/2 year old son; criminal law violations.
Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. A New York DWI Lawyer said the defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order.
The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division.
The defendant appeals said judgment.
Defendant asserts that: the temporary order of protection is not the type of order which enables a court to treat him and his wife as “not married” and that thus he is within the marital exemption; defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional and that it is a violation of the equal protection clause since only men, and not women, can be prosecuted under it.
The Ruling:
The Penal Law provides, in relevant part, that a male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion. Female, for purposes of the rape statute, is defined as any female person who is not married to the actor. Further, a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person by forcible compulsion. Deviate sexual intercourse is defined as sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva. Thus, due to the “not married” language in the definitions of “female” and “deviate sexual intercourse”, there is a “marital exemption” for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be “not married” if at the time of the sexual assault they are living apart pursuant to a valid and effective: order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or a decree or judgment of separation, or a written agreement of separation.
Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of “not married” to include those cases where the husband and wife were living apart pursuant to either a court order which by its terms or in its effect requires such living apart or a decree, judgment, or written agreement of separation. The court agrees with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations. The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of “not married”, stated: In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart. Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order which by its terms or in its effect requires apart. This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.
Thus, the defendant was properly found to have been statutorily “not married” to his wife at the time of the rape.
The defendant’s constitutional challenges to the rape and sodomy statutes are premised on his being considered “not married” to his wife and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant’s claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated. A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him. This rule of standing applies as well to a defendant in a criminal prosecution who, while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others.
Thus, defendant’s constitutional claims are properly before the court.
Equal protection Issue; Marital Exemption:
Presently, over 40 States still retain some form of marital exemption for rape. While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals. Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon some ground of difference that rationally explains the different treatment.
The court finds that there is no rational basis for distinguishing between marital rape and non-marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny.
Thus, the court declares the marital exemption for rape in the New York statute to be unconstitutional. Marital rape is no different than any other rape. In fact, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than any other rape.
Equal Protection Issue; Exemption for Females:
Under the Penal Law only males can be convicted of rape in the first degree. Insofar as the rape statute applies to acts of sexual intercourse, which, as defined in the Penal Law can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females. The equal protection issue, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.
Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions was to protect the chastity of women and their property value to their fathers or husbands. New York’s rape statute has always protected only females, and has applied only to males. Presently New York is one of only 10 jurisdictions that do not have a gender-neutral statute for forcible rape.
A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective. This test applies whether the statute discriminates against males or against females. A Nassau County DWI Lawyer said the People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective. This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.
The very fact that a statute proscribes “forcible compulsion” shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body. Thus, due to the different purposes behind forcible rape laws and “statutory” (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant. Moreover, discrimination cannot be justified for the reason that a female rape victim faces the probability of medical, sociological, and psychological problems unique to her gender. Further, the argument that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare, is bereft of merit. Such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery.
To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an exceedingly persuasive justification for the classification, which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law. The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons “benefitted” by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.
Thus, the court finds that the subject section of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.
In conclusion:
Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly. The unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void.
Now, the herein court’s task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness. The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute.
Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today. Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate the exemptions and thereby preserve the statutes.
Thus, the court chooses the remedy of striking the marital exemption and the gender exemption of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree.
However, the statutes under which the defendant was convicted are not being struck down. Henceforth, his conviction is affirmed.
The court’s decision does not create a crime but enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and creating a hiatus would have. Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.
The defendant cannot claim that the decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State. Defendant did not come within any of the exemptions which we have stricken, and, thus, his conduct was covered by the statutes as they existed at the time of his attack on his wife. It cannot be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on the court’s remedy by the notice requirements of the due process clause, and the prohibition against ex post facto.
Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the decision. To reverse the defendant’s conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. If the court were to reverse, no person arrested for forcible rape or sodomy prior to the date of the herein decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have their convictions vacated. As the equal protection clause does not require us to reach such a result, the court declines to do so.
Therefore, the order of the Appellate Division is affirmed.
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