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Defendant Claims Rape of Wife Was Allowable Due to Marriage


The Facts:

On 7 June 1982, defendant and his wife separated after fourteen years of marriage. Defendant moved out of their marital residence and rented an apartment.
A New York Criminal Lawyer said that on 3 November 1982, defendant was summoned and appeared before the Family Court to answer charges that he harassed his estranged wife. A Temporary Order of Protection was issued.

On 27 November 1982, defendant, in violation of the protective order, allegedly entered the matrimonial residence and, at knifepoint, having forcibly compelled his estranged wife to engage in an act of sexual intercourse with himself. A New York Criminal Lawyer said that at that time the accused and the victim were legally married and did not enter into a formal separation agreement or obtained a decree of judgment of separation or divorce.

Subsequently, defendant is charged with one count of Rape in the First Degree and a related count of Burglary in the First Degree.

Defendant moves to dismiss the indictment upon the grounds that a provision of the Penal Law, from which he is charged, violates the due process and equal protection clauses of the State and Federal Constitutions; that it is constitutionally infirm since it does not mandate service of the Court Order upon the husband or require a statement that a husband may not engage in sexual relations with his estranged wife and that a violation thereof may result in his being charged with rape. In effect, a New York Sex Crimes Lawyer said the defendant claims that such cannot constitutionally exclude an estranged wife from the definition of “female” since the husband (in an otherwise legal marriage) possesses an absolute common law and statutory right to engage in sexual intercourse with her and without her consent.

The Ruling:

Here, a New York Drug Possession Lawyer said that the defendant has presented the Court with a rare opportunity to examine the viability of the so called “spousal exemption to rape” and determine whether the existence of such exemption violates the equal protection rights afforded to a specific class of persons, to wit, married women.

In general, the equal protection clause requires that similarly situated individuals must be accorded even handed treatment by the law.
In evaluating whether a statute violates the equal protection clause the courts have traditionally and, in the absence of either a suspect classification or infringement of a fundamental interest, applied a rational basis test, to wit, the challenged classification will survive if there is some reasonable basis or relationship between it and the legislative end.
However, where a statute affects a fundamental interest such as voting; procreation; freedom of speech; or criminal appeals or if the challenged classification is “suspect” such as race; nationality; or alienage, a “strict scrutiny” test is applied, to wit, whether the challenged classification is necessary to promote a compelling state interest.

With respect to gender-based statutes a middle tier test has developed which requires that the classification must be shown to serve important governmental objectives and must be substantially related to achievement of those objectives. Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.

Thus, if the statutory objective is to exclude or protect members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. The party seeking to uphold a gender-based classification bears the burden of showing an exceedingly persuasive justification for such and that there is now a proper relationship between the enactment and its objective rather than whether there necessarily was when it first came into our law.

The Court begins by noting that given the uniqueness of the issues raised, it has reviewed the decisions of sister states as well as other learned treatises to obtain necessary guidance. Moreover, the fact that the issues raise what may ultimately be discerned as moral questions do not preclude judicial resolution. Any law which embodies social policy inevitably reflects moral judgments to some degree.

Universally, rape is perceived as a truly violent and reprehensible crime. Even when accomplished behind the veil of a marriage license, it is a crime of violence not only damaging to the body, but scarring upon the mind. It is harm different from that in other violent crimes and results in revolting after effects.

The first argument for the exemption is based upon the ancient belief that a woman was the property of either her father or her husband. A second argument is that after marriage a wife merged into the person of her husband, no longer retaining a separate legal existence, and thus he could not be convicted, in effect, of raping himself. The third, and most common rationale relied upon to support the exemption is based upon a theory of implied consent, to wit, that upon marriage, the wife irrevocably consents to her husband exercising his marital right of intercourse whenever he so desires.
Inherent to the marriage contract are related questions with respect to individual autonomy; procreation; and bodily integrity.
Courts have ruled that if a wife may unilaterally prevent or terminate a pregnancy, she must also unilaterally possess a right to refuse the physical act which leads to such pregnancy.
While recognizing the sanctity of marriage, modern decisional law also recognizes that the right of a wife to supremacy over her own body is paramount to her spouse’s desire. Indeed, her rights to individual autonomy and to control procreation are but a part of the more comprehensive right to bodily integrity. The clearest acknowledgment of the individual’s right to bodily integrity was enunciated in the “right to die” cases where the issue was whether the State had a sufficiently compelling interest to require the prolonging of life by extraordinary and artificial means.
The implied consent rationale, besides being offensive to the right to control over one’s own body, is illogical where the marriage itself is not irrevocable. Indeed, our divorce laws permit a marriage to be terminated upon proof of cruel and inhuman treatment or upon constructive sexual abandonment in excess of one year. It may also be argued that to give viability to an implied consent rule establishes a situation that a husband who commits a simple assault and battery upon his wife may insulate himself from criminal liability for such by committing the even more heinous crime of rape and then hiding behind the exemption. Even if the consent rationale was justified when first articulated, it is entirely inconsistent with today’s concept of egalitarian sexual relationships. Consent should be given by husband and wife for each sexual act, for if women are to be equal marital partners, sexual intercourse must be mutually desired and not viewed as a wifely duty enforceable by threats of bodily harm and economic sanctions.
If the Penal Law permits any type of exemption, such amounts to the State impermissibly interfering into the marital relationship by granting to a husband a right to control his wife’s bodily integrity.
The equality principals of modern marital relations have relegated the implied contract theory to the history books; it has no place in the world of the living.
A fourth reason advanced for the exemption is evidentiary problems associated with proving marital rape and the related problem of fabricated complaints. On the other hand, lack of consent has always been the most difficult of elements to prove in any rape prosecution. Yet, that mere difficulty has not prevented the prosecution of non-marital cases.
In California, which currently permits the prosecution of husbands for rape, at least three husbands were found guilty after trial.
With regard to the alleged problem of fabricated complaints, there is no evidence to suggest that this either will or will not occur. However, it is clear that in light of the social stigma associated with rape, most women, even wives, would not wish to be publicly identified as a rape victim.
False reports of rape as well as various other crimes are received daily in the Criminal Justice system. Yet we do not strike laws from the books or fail to prosecute merely because a false complaint is possible. Only in marital rape do we remove an entire class of potential victims from the protection of the law in order to protect some abstract possibility of a false claim that the criminal justice system is unable to deal with appropriately.
Another argument in support of spousal immunity is that extra-marital rape prosecutions would preclude the possibility of reconciliation. Not only is this claim ludicrous, but it hardly appears to be an expected or likely consequence of a relationship that has deteriorated to the point of forcible and unwanted sexual contact.
A final argument is that the wife can resort to other remedies, most notably the obtaining of divorce or a court order of protection. The obvious answer to the validity of this claim is found within the four corners of the instant case where, in an alleged violation of a court order, the defendant is charged with having raped his legal wife at knifepoint.
Undoubtedly, no argument can be raised in today’s society to justify a husband being exempted from raping his wife. She has a right to the protection the law provides for non-spouses and has been denied the equal protection of law by the existence of the immunity. No governmental interest can be served by its continued existence and it bears no reasonable relation to the class it should protect.
Rape is not merely a crime of sex but is one of the most violent in nature. The Court cannot permit an anachronism in the law to become an indefensible obstruction to human rights. The antediluvian assumptions concerning the role and status of women in marriage and in society which animated and gave support to the common law and statutory rules of inter-spousal immunity have become inconsistent with evolving societal realities.
One hundred years later we have come to recognize the stark reality of the characterization of marital rape. There is nothing more domestic and nothing more violent than marital rape.
No rule or statute granting a spouse an immunity can in today’s world withstand any of the tests associated with equal protection, to wit, reasonable basis, middle tier or strict scrutiny.
Accordingly, the court holds that the subject Penal Law granting a husband immunity from prosecution for the rape of his lawful wife violative of the equal protection clauses of the State and Federal Constitutions.
On the specific issues:
The Court finds that defendant’s claim that his due process rights were violated since the statute did not mandate notice is without merit. Defendant had actual notice of the protective order. One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that, impliedly, it might also be taken as applying to other persons or other situations which its application might be unconstitutional.
The court finds that defendant’s claim that the subject Penal Law cannot be used to exclude his estranged wife from the definition of a female is bereft of merit.
The order of protection mandating that defendant remain away from his wife’s premises at all times and remain away from petitioner’s person and further refrain from any acts or threats of physical violence was sufficient to apprise defendant that he could be charged with the crime of rape if he thereafter engaged in sexual intercourse with his estranged wife without her consent.
The holding that a husband does not possess a right to unconsented sexual relations with his wife further militates against defendant’s argument. He cannot claim that the subject Penal Law must specifically require a protective order to state that he may not engage in unconsented sexual intercourse with his wife since he possesses no right in any event. The defendant knew at the time he is alleged to have committed the acts that he would face a charge of rape if he interfered with his wife’s bodily integrity.
Henceforth, upon a review of the Grand Jury minutes, the court finds them legally sufficient to sustain the charges.
If you are involved in a similar situation, it is best to consult with a lawyer immediately. Contact Stephen Bilkis & Associates and talk to our Suffolk County Criminal Attorneys as to what legal action you could make to best protect your rights and interests. You can also consult with our Suffolk County Domestic Violence Attorneys if it involves family related issues.

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