People v. Liberta

474 N.E.2d 567 (1984)

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Nature of the Case

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Facts

Mario Liberta (D) and Denise were married in 1978. Shortly after the birth of their son, in October D began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from D. On April 30, 1980, a temporary order of protection was issued to her by the Family Court. D was to move out and remain away from the family home and stay away from Denise. The order provided that D could visit with his son once each weekend. D wanted to see his son Denise agreed 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. D and his friend picked up Denise and their son, and the four of them drove to D's motel. When they arrived, the friend left. D then attacked Denise, 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 D forced Denise to tell their son to watch what D was doing to her. D 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 D. D was indicted for rape in the first degree and sodomy in the first degree. Defendant moved to dismiss the indictment, asserting that because he and Denise were still married at the time of the incident, he came within the 'marital exemption' to both rape and sodomy. P opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart, and they, in fact, were living apart, and thus were 'not married' for purposes of the statutes. The trial court granted the D's motion and dismissed the indictment, concluding that the temporary order of protection did not require D and Denise to live apart from each other, but instead required only that he remain away from her, and that therefore the 'marital exemption' applied. The Appellate Division reversed the trial court, reinstated the indictment, and remanded the case for trial. A Family Court order of protection is within the scope of '[an] order * * * which by its terms or in its effect requires such living apart' even though it is directed only at a husband, and thus found that D and Denise were 'not married' for purposes of the statute at the time of the incident. D was then convicted of rape in the first degree and sodomy in the first degree, and the conviction was affirmed by the Appellate Division. This appeal resulted. D contends that because of the exemption for married men, the statutes for rape in the first degree (Penal Law, § 130.35) and sodomy in the first degree (Penal Law, § 130.50), violate the equal protection clause of the Federal Constitution (US Const, 14th Amdt). D also contends that the rape statute violates equal protection because only men, and not women, can be prosecuted under it.