SECTION 1 - COLQUITT
494 So. 2d 819 (Ala. Crim. App. 1986)
Jerry Wayne Williams was indicted in March of 1984 for burglary in the first degree and sodomy in the first degree. On April 18, 1984, the appellant pled guilty to the burglary charge and the sodomy charge was nolle prossed. On May 30, 1984, the appellant was allowed to withdraw his guilty plea. The following day the State filed a motion to reinstate the sodomy indictment. This motion was granted on July 12, 1984 and the two cases were consolidated for trial.
The jury found the appellant guilty of both offenses. Following trial, the State filed a motion to invoke § 13A-5-6(a)(4), Code of Alabama 1975 to enhance punishment. This motion was denied by the trial judge and the appellant was sentenced to ten years' imprisonment in each case, with the sentences to run concurrently.
The State then filed a writ of mandamus with this court to require the trial judge to enhance punishment pursuant to § 13A-5-6(a)(4). The writ was granted and the appellant was resentenced to twenty years' imprisonment in each case, with the sentences to run concurrently.
The appellant does not challenge the sufficiency of the evidence and thus it is unnecessary to discuss the facts of this case.
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The appellant challenges his conviction of sodomy in the first degree on the basis that this statute is unconstitutional. Specifically, he contends his statute violates the equal protection clause of the fourteenth amendment of the United States Constitution, because it only punishes persons who are not married to the victim and protects only victims who are not married to the offender.
§ 13A-6-63, Code of Alabama provides in pertinent part that:
"(a) A person commits the crime of sodomy in the first degree if:
"(1) He engages in deviate sexual intercourse with another person by forcible compulsion." (emphasis added).
"Deviate sexual intercourse" is defined in § 13A-6-60(2) as:
"Any act of sexual gratification between persons not married to each other, involving the sex organs of one person and the mouth or anus of another." (emphasis added)
Thus, due to the use of the language "persons not married to each other," there is a "marital exemption" for forcible sodomy.
* * *
A married person cannot be convicted of forcible sodomizing his or her spouse in this state. A married person is excluded from liability under the forcible sodomy statute due to the so-called "marital exemption." This statute classifies unmarried persons differently than married persons and, thus, it is subject to an equal protection challenge. Liberta, supra. "The equal protection clause of the fourteenth amendment of the United States Constitution requires that similarly situation individuals be treated in a similar manner by a state." Clancy, supra, at 8. However, "the equal protection clause does not prohibit a state from making classifications, provided the Statute does not arbitrarily burden a particular group of individuals." Liberta, supra, 485 N.Y.S.2d at 213, 474 N.E.2d at 573, (citing Reed v. Reed, 404 U.S. 71, 92 S. Ct.. 251, 30 L. Ed. 2d 225 (1971)).
The statute in question "* * * on its face discriminates between married and unmarried persons, making criminal when done by the latter what is innocent when done by the former. With that distinction drawn, we look to see whether there is, as a minimum, `some ground of difference that rationally explains the different treatment accorded married and unmarried persons' under the statute." People v. Onofre, 51 N.Y.2d, 476, 434 N.Y.S.2d 947, 953, 415 N.E.2d 936, 942 (1980), cert. denied, 451 U.S. 987, 101 S. Ct.. 2323, 68 L. Ed. 2d 845 (1981) (quoting Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct.. 1029 31 L. Ed. 2d 349 (1972)). In other words, is there a rational basis for the distinction made between married and unmarried persons in our forcible sodomy statute?
Although the State has not provided this court with any kind of justification for the "marital exemption" for forcible sodomy, we shall address the rationales that have been put forth in support of the "marital exemption" for rape and other sexual assaults.
In Liberta, supra, the Court of Appeals of New York found that there was no rational basis for the "marital exemption" in New York's rape and forcible sodomy statutes. The court, in their decision, discussed the traditional and modern rationales for the "marital exemption." Although the court stated that their reasoning was equally applicable to the forcible sodomy statute, Liberta, supra, footnote 3, their discussion focused on the "marital exemption" for rape. Thus, we shall address the rationales for the "marital exemption" discussed in Liberta, supra, specifically in relation to the "marital exemption" for forcible sodomy.
One of the traditional rationales for the "marital exemption" concerns the concept of "implied consent." Liberta, supra. At common law, there was a "marital exemption" for rape based on the theory that, when a woman makes her marriage vows, she impliedly consents to sexual intercourse with her husband during marriage. This concept is credited to Lord Hale, the 17th century jurist, who made the statement, without any supporting authority, that "[t]he husband cannot be guilty of rape committed by himself upon his lawful wife, for by her mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract." Liberta, supra, 485 N.Y.S.2d at 212, 474 N.E.2d at 572, (quoting from 1 Hale, History of Pleas of the Crown, p.629).
Although Alabama recognized the concept of implied consent as it pertained to marital rape, see Anonymous, 206 Ala. 295, 89 So. 462 (1921), this concept has never been applied to the offense of sodomy. Under former Alabama law, consent, express or implied, was never a defense to a charge of sodomy, whether the acts charged were committed by married or unmarried persons. Williams v. State, 354 So. 2d 48 (Ala. Crim. App.1977), cert. denied, 354 So. 2d 53 (Ala.1978)(and cases cited therein). A "marital exemption" for sodomy, consensual or forcible, has never existed in this state until the present code.
"Where two persons voluntarily engage in an act of sodomy, both are guilty." Williams, supra, at 51 (interpreting former Alabama sodomy statute). However, in cases where a person was forced to commit an act of sodomy, that person was not an accomplice. Andrews v. State, 359 So. 2d 1172 (Ala. Crim. App. 1978); Mahone v. State, 44 Ala. App. 372, 209 So. 2d 435 (1968). In Mahone, supra, the defendant was convicted of sodomizing his wife by force. Thus, the court's holding in Mahone, supra, expressively rejects any notion of implied consent to acts of sodomy. See also Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985) (court rejected the implied consent to sodomy theory in holding that there is no "implied marital exemption" contained in Georgia's aggravated sodomy statute); State v. Smith, 401 So. 2d 1126 (Fla. App. 1981) and State v. Rider, 449 So. 2d 903 (Fla. App. 1984) (Florida courts held there is no implied consent to sexual battery which includes acts of sodomy).
Thus, since there has never been a notion of "implied consent" to sodomy in Alabama, it would be absurd to find that one exists now. Warren, supra. Forcible sodomy is not merely a sexual act, it is a crime of violence and a degrading experience for the victim. Warren, supra; Liberta, supra; Smith, supra; Rider, supra. The act of forcible sodomy violates the bodily integrity of the victim and often causes the victim to suffer long-lasting physical and psychological injury. Warren, supra; Liberta, supra.
It would be ludicrous to hold that a marriage license implies consent to such a gross violation of one's bodily integrity. Warren, supra; Liberta, supra. A married person has the same right to control his or her body as does an unmarried person. Eisenstadt, supra; Liberta, supra.
"While recognizing the sanctity of marriage, modern decisional law also recognizes that the right of a wife [or husband] to supremacy over her [or his] own body is paramount to her [or his] right to individual autonomy * * * [is] but a part of the more comprehensive right to bodily integrity." People v. DeStefano, 121 Misc.2d 113, 467, N.Y.S.2d 506 (Co. Ct. 1983).
"A married [person] has the right to resist overtures by [his or her spouse] to have sexual relations, whether of a conventional or an unusual nature. A married [person] is not compelled by law to submit against [his or] her will to sexual contact which [he or] she finds offensive." Note, the Marital Rape Exemption, 52 N.Y.U.L. Rev. 306, 321 (1977).
Any implied consent notion would give one spouse the control over the other spouse's bodily integrity. Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984). Thus, when a person says "I do" in Alabama, they retain the right to say "I won't" to acts of sodomy. Warren, supra.
The common law doctrines that a wife is her husband's property and that her legal existence is incorporated into her husband's have long been rejected. Liberta, supra; Smith, supra; DeStefano, supra. "Nowhere in the common-law world indeed in any modern society is a woman regarded as chattel or demeaned by a denial of a separate legal identity and the dignity associated with recognition as a whole human being." Trammel v. Trammel, 445 U.S. 40, 52, 100 S. Ct. 906, 913, 63 L. Ed. 2d 186 (1980). Certainly, then, these archaic notions cannot provide a basis for a "marital exemption" in our forcible sodomy statute.
A modern justification that has been asserted in support of the "marital exemption" is that it protects against governmental invasion into marital privacy. The right to marital privacy was recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.. 1678, 14 L. Ed. 2d 510 (1965). The "marital exemption" for forcible sodomy cannot be justified by this marital privacy right because "[t]he import of the Griswold decision is that [only] private, consensual, marital relations are protected from regulation by the State through the use of a criminal penalty." Cotner v. Henry, 394 F.2d 873, 875 (7th Cir. 1968). The right to marital privacy is not absolute or unqualified. State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976) (court held marital privacy right not violated by husband's conviction for forcing an act of sodomy upon his wife.) "Marital privacy was not designed as a shield to allow one spouse to force the other into nonconsensual acts." Clancy, supra, at 23.
The right to marital privacy is not applicable when force is used to commit a sodomy. Bateman, supra; Doe v. Commonwealth's Attorney, 403 F. Supp. 1199, 1204 (E.D. Va. 1975) (Merhige, J., dissenting); Towler v. Peyton, 303 F. Supp. 581 (W.D. Va. 1969) (marital right to privacy not available when act of forcible sodomy committed); Note, Doe and Dronenburg: Sodomy Statutes are Constitutional, 26 William and Mary L. Rev. 645 (1985). In fact, the State has a compelling interest in "protecting its citizens from violence even if the combatants are married to one another." Bateman, supra, 547 P.2d at 9. It makes no difference whether a crime is committed in the bedroom or otherwise. Cotner, supra, (Duffy, J., dissenting).
Violent sexual assaults are not protected by the marital right to privacy. Liberta, supra. These acts of violence can be constitutionally proscribed. Clancy, supra. Griswold, supra, cannot be used to justify a forcible sodomy of a spouse. Rider, supra, footnote 6.
The argument that the elimination of the "marital exemption" for forcible sodomy would disrupt marriages because it would discourage reconciliation is untenable. Liberta, supra. "Clearly, it is the violent [sexual assault] and not the subsequent attempt of the [injured spouse] to seek protection through the criminal justice system which disrupts' a marriage." Liberta, supra, 485 N.Y.S.2d at 214, 474 N.E.2d at 574. When a marriage relationship has deteriorated to the point of forcible and unwanted sexual contact, reconciliation seems highly unlikely. DeStefano, supra.
Other justifications for the "marital exemption" for forcible sodomy are that the offense of forcible sodomy in marriage would be difficult to prove and that the elimination of the exemption would result in fabricated complaints. Liberta, supra. These arguments must fail. The evidentiary problems concerning one spouse's lack of consent to an act of sodomy would be no more difficult than proving lack of consent by a victim involved in a non-marital relationship with the perpetrator of a forcible sodomy. Liberta, supra. Should not married persons be afforded the same protection as unmarried persons merely because some evidentiary problems may be encountered?
As heretofore stated, there is no implied consent by a spouse to acts of sodomy during marriage. Therefore, proof of lack of consent to marital sodomy would be even less difficult than proof of lack of consent to sexual intercourse in a marital rape case. Furthermore, convictions for this offense have been obtained in this state and elsewhere, in spite of this evidentiary problem. See Mahone, supra, Bateman, supra; Warren, supra; Towler, supra.
The possibility that married persons will fabricate complaints of forcible sodomy seems to be no greater than unmarried persons doing so. Liberta, supra. If women are reluctant to report rapes because of embarrassment and humiliation, a person would be even more reluctant to falsify a report of an act that society has historically characterized as abominable, detestable, unnatural, disgusting, infamous and unmentionable. Williams v. State, 55 Ala. App. 436, 316 So. 2d 362 (Ala. Crim. App. 1975).
"The criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than homicides would go unpunished." Liberta, supra, 485 N.Y.S.2d at 214, 474 N.E.2d at 574.
Another rationale for the "marital exemption" is that there are alternative remedies available to the victim of a forcible sodomy by a spouse, such as the assault statutes. Liberta, supra. However, the very existence of our forcible sodomy statute is recognition of the fact that the harm caused by a forcible sodomy is different in nature from the harm caused by an ordinary assault. Liberta, supra. In a situation where a person forcibly sodomizes his or her spouse without the use of a deadly weapon or a dangerous instrument, and without causing serious physical injury to the victim, he or she could only be found guilty of a class A misdemeanor if prosecuted under the assault statutes. See Sec. 13A-6-20 through 22, Code of Alabama 1975. If that person were prosecuted for forcible sodomy, he or she could be convicted of a class A felony. This vast differentiation in punishment clearly disproves this alternative remedy theory.
The argument that a forcible sodomy committed by a spouse is less severe than a forcible sodomy committed by a person other than a spouse is totally without merit. The harm caused by a spousal sexual assault is often more traumatic than a sexual assault by a stranger because the person who commits this act is someone whom the victim loves and trusts and someone who, under the marital relationship, supposedly loves and respects the victim.
None of the rationales for the "marital exemption" that we have discussed provide a rational basis for distinguishing between married and unmarried persons in the forcible sodomy statute. Forcible sodomy is a crime of violence, not of sex, regardless of whether it occurs within the realms of marriage or not. Smith, supra; Rider, supra; Warren, supra.
There can be no justification for a forcible sodomy upon one's spouse. A spouse who is the victim of a forcible sodomy is entitled to the same equal protection of the laws as an unmarried person who is the victim of a forcible sodomy. Furthermore, a married person who forcibly sodomizes his or her spouse should be equally as liable as an unmarried person who commits this act.
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.
We have determined the statute in question is constitutionally defective because it is underinclusive. Thus, we have two alternatives. We can either invalidate the statute in its entirety and hold that its benefits do not extend to those persons for whom the legislature intended the statute to benefit or we may extend its benefits to those persons who are presently excluded from the scope of the statute. * * *
"The choice between invalidation of a statute or expansion of the scope of its applicability requires, of necessity, an ascertainment of the predominant legislative purpose underlying the statute's enactment. Beal [v. Beal, Me., 388 A.2d 72 (1978)], supra. That is to say, given the nature and substance of the statute, its relevant economic, social, and historical implications, can it be concluded that benefits should be terminated to the class of persons whom the legislation intended to benefit. Orr, supra, at 897; Ransom, supra, at 748; Hall, supra, at 991."
"In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute (Califano v. Westcott, 443 U.S. at p. 90, 99 S. Ct.. at p. 2664, supra; Welsh v. United States, 398 U.S. at pp. 365, 366, 90 S. Ct. at pp. 1809, 1810 [Harlan, J., concurring], supra; Developments in the Law Equal Protection, 82 Harv. L. Rev. 1065, 1136-1137). Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today (see, generally, Coker v. Georgia, 433 U.S. 584, 97 S. Ct.. 2861, 53 L. Ed. 2d 982 [(1977)], supra; 1 Callaghan's Criminal Law in New York [Groble, 3d ed.], Sec. 19:01). Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety."
* * *
"We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have (cf. Goodell v. Goodell, 77 A.D.2d  at p. 685, 429 N.Y.S.2d 789 [(1980)], supra)."
Liberta, supra, 485 N.Y.S.2d at 218-19, 474 N.E.2d at 578-79.
We conclude that our legislature would determine and prefer to have a forcible sodomy statute which applies equally to all persons, married and unmarried, rather than have no statute at all covering this particular offense. Certainly, the legislature would choose to eliminate the "marital exemption" from the statute in question and thereby retain the offense of forcible sodomy in our criminal statutes.
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 sate. 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. Liberta, supra.
"Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible * * * sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who * * * [sodomized his wife] prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (U.S. Const., 14th Amdt.), and the prohibition against ex post facto laws (U.S. Const., art. I, Sec. 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision."
Liberta, supra, 485 N.Y.S.2d at 219, 474 N.E.2d at 579.
Therefore, the appellant's convictions for burglary in the first degree and sodomy in the first degree are due to be, and are hereby, affirmed.
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