Merton v. State

• Decision Date: 14 October 1986
• Docket Number: 6 Div. 36
• Citation: 500 So.2d 1301
• Parties: Harry Lewis MERTON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1301

500 So.2d 1301

Harry Lewis MERTON, Jr. v. STATE.

6 Div. 36.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

Certiorari Denied Jan. 23, 1987

Alabama Supreme Court 86-280.

George E. Trawick, Ariton, for appellant.

Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Harry L. Merton was convicted of the first degree rape and sodomy of an eight-year-old child. Sentence was life imprisonment in each case, and a victim compensation fine of $5000. Four issues are raised on appeal.

I

The defendant argues that Alabama's first degree rape statute, § 13A-6-61, Code of Alabama 1975, and first degree sodomy statute, § 13A-6-63, are unconstitutional and in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution because the statutes criminalize "conduct by unmarried people as a class when the same conduct is not criminal for married people as a class." Appellant's brief, p. 17. See Annot., 24 A.L.R.4th 105 (1983).

In Williams v. State, 494 So.2d 819 (Ala.Cr.App.1986), this Court found Alabama's statutes defining sodomy unconstitutional:

"A rule that protects unmarried persons from forcible sodomies but not married persons and excludes married persons from liability from these acts but not unmarried persons cannot withstand constitutional scrutiny. The underinclusiveness of the forcible sodomy statute is not rationally based. Thus, the 'marital exemption' as it applies to our forcible sodomy statute violates the equal protection clause of the fourteenth amendment of the United States Constitution."

The "marital exemption" is found in the statutory definition of "deviate sexual intercourse" which only involves "persons not married to each other." Alabama Code 1975, § 13A-6-60(2). However, rather than invalidating the statutes in their entirety, this Court extended the benefits of the sodomy statutes to those persons who had been excluded from the scope of the statute:

"Thus, the 'marital exemption' for the offense of forcible sodomy is hereby severed and removed from this statute. The statute at issue is now enlarged to include married, as well as unmarried, persons. Therefore, any person who engages in deviate sexual intercourse with any other person, by forcible compulsion, is guilty of the offense of sodomy in the first degree.

"Since the court has chosen to uphold, rather than strike down this statute, the appellant's conviction for sodomy in the first degree is due to be and is hereby affirmed. His conviction is not in violation of due process of law because, at the time the appellant committed this offense, he had notice that his conduct constituted the offense of sodomy in the first degree in this state. Since the appellant was not in the class of persons protected by the 'marital exemption,' which was in effect prior to the date of this opinion, his conduct was proscribed by the forcible sodomy statute in effect at the time he committed this offense."

In Williams, this Court specifically noted: "Our decision today is limited to the forcible sodomy statute since only the constitutionality of this statute is before us. However, our reasoning may well apply to other offenses."

Alabama's rape statutes also contain a "marital exemption." Section 13A-6-61 defines rape in the first degree as follows:

"(a) A male commits the crime of rape in the first degree if:

"(1) He engages in sexual intercourse with a female by forcible compulsion; or

"(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

"(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old."

The definition of "female" is limited, by § 13A-6-60(4), to the following:

"Any female person who is not married to the actor. Persons living together in cohabitation are married for purposes of this article, regardless of the legal status of their relationship otherwise." (Emphasis added.)

The principal case on which this Court relied, in Williams v. State, supra, in holding the Alabama sodomy statutes unconstitutional was People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984). As we recognized in Williams v. State, the Liberta court's "discussion focused on the 'marital exemption' for rape." Like the case before us, Liberta dealt with an equal protection challenge to both the first degree sodomy and first degree rape statutes. The New York provisions at issue in Liberta are virtually identical to the corresponding Alabama statutes. Compare N.Y.Penal Law § 130.35 (McKinney 1975) (rape in the first degree) and § 130.00(4) ("female" defined) with Alabama Code 1975, § 13A-6-61(a)(1) (rape in the first degree) and § 13A-6-60(4) ("female" defined).

The reasoning in Liberta is sound. We adopt it as our own:

"Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon 'some ground of difference that rationally explains the different treatment.' (Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349; People v. Onofre, 51 N.Y.2d 476, 491, 434 N.Y.S.2d 947, 415 N.E.2d 936, cert. den., 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845).

"We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.

"Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption ('Equal Protection Considerations', supra, n. 6, 16 N.Eng.L.Rev., at p. 21). Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm (see Coker v. Georgia, 433 U.S. 584, 597-598, 97 S.Ct. 2861, 2868-2869, 53 L.Ed.2d 982; Note, Rape Reform and a Statutory Consent Defense, 74 J. of Crim.L. & Criminology 1518, 1519, 1527-1528). To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand (see De Angelis v. De Angelis, 54 A.D.2d 1088, 388 N.Y.S.2d 744; 'Abolishing The Marital Exemption', supra, at n. 4, 1983 U. of Ill.L.Rev., at p. 207; 'Marital Rape Exemption', supra, at n. 5, 52 N.Y.U.L.Rev., at pp. 311-312). Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman ('Equal Protection Considerations', supra, n. 6, 16 N.Eng.L.Rev., at pp. 19-20; cf. Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788). If a husband feels 'aggrieved' by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in 'violent or forceful self-help' (State v. Smith, 85 N.J. 193, 206, 426 A.2d 38).

"The other traditional justifications for the marital exemption were the commonlaw doctrines that a woman was the property of her husband and that the legal existence of the woman was 'incorporated and consolidated into that of the husband' (1 Blackstone's Commentaries [1966 ed.], p. 430; see State v. Smith, supra, at pp. 204-205, 426 A.2d 38; 'Marital Rape Exemption', supra, n. 5, 52 N.Y.U.L.Rev., at pp. 309-310). Both these doctrines, of course, have long been rejected in this State. Indeed, '[n]owhere in the commonlaw world--[or] in any modern society--is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being' (Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L.Ed.2d 186).

"Because the traditional justifications for the marital exemption no longer have any validity, other arguments have been advanced in its defense. The first of these recent rationales, which is stressed by the People in this case, is that the marital exemption protects against governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus that elimination of the exemption would be disruptive to marriages. While protecting marital privacy and encouraging reconciliation are legitimate State interests, there is no rational relation between allowing a husband to forcibly rape his wife and these interests. The marital exemption simply does not further marital privacy because this right of privacy protects consensual acts, not violent sexual assaults (see Griswold v. Connecticut, 381 U.S. 479, 485-486, 85 S.Ct. 1678, 1682-1683, 14 L.Ed.2d 510; 'Equal Protection Considerations', supra, n. 6, 16 N.Eng.L.Rev., at p. 23). Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife, he cannot justifiably rape his wife under the guise of a right to privacy.

"Similarly, it is not tenable to argue that elimination of the marital exemption would disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which 'disrupts' a marriage (Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847, at p. 855). Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it...