## Facts

- Denise Liberta obtained a Family Court temporary order of protection requiring Mario Liberta to move out, stay away from her, and have limited visitation with their child.
- Mario later lured Denise and their young son to a motel room on assurances another person would be present.
- After the other person left, Mario forced Denise to have sexual intercourse and also forcibly sodomized her, in the child’s presence.
- Mario was indicted for first-degree rape and first-degree sodomy under New York Penal Law.
- The trial court dismissed the indictment based on statutory exemptions that (1) excluded spouses from rape/sodomy liability and (2) limited perpetration to males and victimhood to females.
- The Appellate Division reversed the dismissal, reinstated the indictment, and affirmed Mario’s convictions after trial.
- Mario appealed to the New York Court of Appeals, challenging the marital and gender-based classifications as violating equal protection.

## Issues

1. Whether the statutory exemption that excluded forcible rape and sodomy between spouses violated equal protection by denying married victims the same protection as unmarried victims.
2. Whether limiting rape and sodomy liability to male perpetrators and female victims violated equal protection.
3. If unconstitutional, whether the exemptions should be severed or whether the entire statutory scheme must fall.

## Decision

- The Court of Appeals affirmed the judgment of conviction.
- The marital exemption for forcible rape and sodomy was held unconstitutional under federal and state equal protection guarantees as irrationally underinclusive.
- The gender-specific perpetrator/victim limitations were held unconstitutional because they were not substantially related to an important governmental objective.
- The unconstitutional exemptions were severed, leaving enforceable prohibitions on forcible rape and sodomy that apply regardless of marital status or gender.
- The conviction was affirmed because the statute applied on its terms due to the parties living apart pursuant to a court order, and in any event the exemptions could not constitutionally bar prosecution.

## Legal Principles

- Equal protection forbids irrational underinclusive classifications that deny one class of victims legal protection without a rational governmental justification.
- A spouse does not give implied, irrevocable consent to forcible sexual acts by virtue of marriage; marital privacy does not shield violent felonies.
- Gender classifications in criminal statutes are subject to heightened scrutiny and must be substantially related to an important governmental objective; excluding female offenders or male victims cannot be justified by stereotypes.
- When a statute contains an unconstitutional exception, courts may excise the exception and preserve the remainder when doing so best fits legislative purpose and operability.

## Conclusion

The court held that exempting spouses and restricting rape and sodomy to male-on-female conduct violated equal protection, severed those limitations to preserve enforceable gender-neutral, status-neutral prohibitions on forcible sexual offenses, and affirmed Liberta’s convictions.


People v. Liberta, 64 N.Y.2d 152 (N.Y. 1984)