OPINIONBY: WACHTLER
Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30, 1980 a temporary order of protection was issued to her by the Family Court. Under this order, the defendant was to move out and remain away from the family home, and stay away from Denise. The order provided that the defendant could visit with his son once each weekend.

On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son. On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up Denise and their son and the four of them drove to defendant's motel.

When they arrived at the motel the friend left. As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the defendant forced Denise to tell their son to watch what the defendant was doing to her.

The defendant allowed Denise and their son to leave shortly after the incident. Denise, after going to her parents' home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant was indicted for rape in the first degree and sodomy in the first degree.

Section 130.35 of the Penal Law provides in relevant part that "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion".

We first address the defendant's argument that, despite the order of protection, he was within the "marital exemption" to rape and sodomy and thus could not be prosecuted for either crime. Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to either a court order "which by its terms or in its effect requires such living apart" or a decree, judgment, or written agreement of separation. We agree with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations.

Accordingly, the defendant was properly found to have been statutorily "not married" to Denise at the time of the rape.

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. 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. 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. 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. 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.

The other traditional justifications for the marital exemption were the common-law 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." Both these doctrines, of course, have long been rejected in this State. Indeed, "[nowhere] in the common-law 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."

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. 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. Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it is doubtful that there is anything left to reconcile. This, of course, is particularly true if the wife is willing to bring criminal charges against her husband which could result in a lengthy jail sentence.

The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. The fact that rape statutes exist, however, is a recognition that the harm caused by a forcible rape is different, and more severe, than the harm caused by an ordinary assault. Under the Penal Law, assault is generally a misdemeanor unless either the victim suffers "serious physical injury" or a deadly weapon or dangerous instrument is used. Thus, if the defendant had been living with Denise at the time he forcibly raped and sodomized her he probably could not have been charged with a felony, let alone a felony with punishment equal to that for rape in the first degree.

Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape.

Though our decision does not "create a crime", it does, of course, enlarge the scope of two criminal statutes. 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.
The due process clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State. Defendant did not come within any of the exemptions which we have stricken, and thus his conduct was covered by the statutes as they existed at the time of his attack on Denise.

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 rape and 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, while living with his wife, raped her 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, and the prohibition against ex post facto laws. 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.

Accordingly, the order of the Appellate Division should be affirmed.