64 N.Y.2d 152, 474 N.E.2d 567 (1984)
Mario Liberta and Denise Liberta married in 1978.1 Shortly after the birth of their son in October 1978, Mario began beating Denise.2 In early 1980, Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant.3 On April 30, 1980, the Family Court issued a temporary order of protection requiring the defendant to move out and remain away from the family home and to stay away from Denise, while permitting weekend visits with their son.4
On the weekend of March 21, 1981, Mario did not visit his son.5 On Tuesday, March 24, 1981, he called Denise to request a visit that day.6 Denise agreed to allow him to pick up her and their son and take them to his motel after he assured her that a friend would be present at all times.7 The defendant and his friend picked up Denise and their son and drove to the motel.8
Upon arrival at the motel the friend left.9 Mario then attacked Denise, threatened to kill her, and forced her to perform fellatio and engage in sexual intercourse while their son was in the room.10 The defendant forced Denise to tell their son to watch what he was doing to her.11 After the incident, Denise went to her parents’ home, then to a hospital for treatment of scratches on her neck and bruises on her head and back.12 She also went to the police station and swore out a felony complaint the next day.13 On July 15, 1981, the defendant was indicted for rape in the first degree and sodomy in the first degree.14
The defendant moved to dismiss the indictment.15 The trial court granted the motion and dismissed the indictment.16 On appeal by the People, the Appellate Division reversed, reinstated the indictment, and remanded for trial.17 The defendant was convicted of both charges, and the Appellate Division affirmed the conviction.18 The defendant appealed to the Court of Appeals.19
Whether the temporary order of protection rendered Mario Liberta and Denise Liberta "not married" for purposes of the rape and sodomy statutes?20
Under New York Penal Law section 130.00 subdivision 4, a husband and wife are considered not married if at the time of the sexual assault they are living apart pursuant to a valid and effective order.21 The order must be issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart.22
Yes. The temporary order of protection issued on April 30, 1980 required Mario Liberta to move out and remain away from the family home and to stay away from Denise while permitting only weekend visits with their son.23 The Appellate Division held that a Family Court order of protection falls within the scope of an order which by its terms or in its effect requires living apart even though directed only at the husband.24 The Court of Appeals agreed, noting both the plain language of the statute and the legislative memorandum indicating that a court determination that spouses should live apart for the well-being of one or both satisfies the requirement.25
The jury found as a fact that the spouses were living apart at the time of the incident.26 That factual determination is not disturbed on appeal.27
The temporary order of protection rendered Mario Liberta and Denise Liberta not married for purposes of the rape and sodomy statutes.28
Whether the marital exemption in the statutes defining rape in the first degree and sodomy in the first degree violates equal protection?29
A statute that distinguishes between married and unmarried men for purposes of criminal liability for forcible rape and sodomy violates equal protection unless the classification is reasonable.30 The classification must be based upon some ground of difference that rationally explains the different treatment.31
Yes. There is no rational basis for distinguishing between marital rape and nonmarital rape.32 Traditional justifications resting on implied consent or the wife as property of the husband are archaic and have been rejected.33 Modern rationales such as protecting marital privacy, encouraging reconciliation, difficulty of proof, or lesser harm are untenable.34
The right of privacy does not protect violent assaults.35 The violent act itself disrupts the marriage.36 Proving lack of consent is difficult in all rape cases.37 Studies show marital rape often produces more severe trauma than other rape.38
The classification therefore arbitrarily burdens some males but not others similarly situated.39
The marital exemption in the statutes defining rape in the first degree and sodomy in the first degree violates equal protection.40
Whether the exemption of females from liability under the rape statute violates equal protection?41
A statute that treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective.42 The state must show an exceedingly persuasive justification that the gender-based law serves the objective better than a gender-neutral law would.43
Yes. The People failed to meet their burden.44 Pregnancy prevention is not a primary purpose of forcible rape statutes, which instead protect against unwanted violent sexual intrusion.45 Claims of unique medical or psychological problems for female victims rest on archaic and overbroad generalizations.46
Although forcible rape by females is less common, numerical disparity alone does not justify gender discrimination.47 A gender-neutral law would better serve the objective of deterring and punishing all forcible sexual assaults.48 The exemption therefore cannot survive equal protection scrutiny.49
The exemption of females from liability under the rape statute violates equal protection.50
Whether the appropriate remedy for any equal protection violations is to strike the exemptions from the statutes rather than invalidate the statutes entirely?51
When a criminal statute is unconstitutionally underinclusive, a court may strike the statute entirely or extend coverage by eliminating the invalid exemption.52 The court chooses the course the legislature would have preferred if it had foreseen the constitutional defect.53 Particular weight is given to the importance of the statute and the disastrous effect of creating a hiatus in the law.54
Yes. Forcible sexual assault statutes are of the utmost importance to public safety.55 Declaring the statutes a nullity would have a disastrous effect.56 The legislature would prefer to eliminate the exemptions and preserve the statutes.57 The defendant was not within the stricken exemptions at the time of his conduct, so due process and ex post facto concerns are satisfied.58 The chosen remedy rationally distinguishes him from persons never covered by the original statutes.59
The appropriate remedy for any equal protection violations is to strike the exemptions from the statutes rather than invalidate the statutes entirely.60