Citation. People v. Liberta, 90 A.D.2d 681, 455 N.Y.S.2d 882, 1982 N.Y. App. Div. LEXIS 18766 (N.Y. App. Div. 4th Dep’t Oct. 29, 1982)
Brief Fact Summary. Defendant was indicted for the rape and sodomy of his wife, with whom he was separated. The defendant was convicted and appealed, asserting that both statutes are unconstitutional.
Synopsis of Rule of Law. The marital exemption and the female exemption to the rape and sodomy statutes are unconstitutional based upon equal protection analysis.
Defendant Mario Liberta and Denise Liberta married in 1978. Defendant began to beat Denise shortly after the birth of their son in October of that year. In 1980 Denise received a temporary order of protection from Family Court. The order required defendant to move out and remain away from the family home and Denise. It allowed defendant to visit his son once each weekend. On the weekend of March 21, 1981 defendant did not visit his son. On Tuesday of the following week he called to request visitation. Denise agreed so long as he picked up the son and her and took them to the motel he was staying at under the understanding that a friend of his would be with them at all times. The defendant and his friend picked the two up and drove to the hotel. Upon arrival the friend left. Shortly thereafter defendant attacked Denise, threatened to kill her, and forced her to perform fellatio and engage in sexual intercourse with him. He also forced Denise to tell their son to watc
h. He allowed them to leave after the incident, and Denise reported the incident the next day. Defendant moved to dismiss the following indictment asserting that he came within a marital exemption to both rape and sodomy. The People contended that because the couple were living apart pursuant to the temporary order of protection, they were not married for purposes of the statute. The trial court dismissed the indictment. The appellate court reversed and remanded, finding that the couple was not married for purposes of the statute. The defendant was convicted and appealed, asserting that both statutes are unconstitutional. Issue.
Is defendant correct in his assertion that the marital rape exemption in New York’s rape and sodomy statutes renders those statutes violative of the Equal Protection Clause?