Criminal Law Keyed to Dressler
People v. Liberta
Defendant Mario Liberta and victim Denise Liberta were married in 1978. Shortly after the birth of their son, Defendant began beating his wife. In 1980, Denise obtained an order of protection from the Defendant, whereby Defendant had to move out of the family home and stay away from Denise. The order allowed Defendant to visit his son once each weekend. In March of 1981, Defendant called Denise and asked her if he could visit their son. Denise allowed Defendant to pick up both her and their son and take them back to his motel after being assured that a friend of his would be with them at all times. Once they arrived, the friend left and Defendant forced Denise to have sexual intercourse with him. He also forced his son to watch the non-consensual intercourse. Thereafter, Denise filed a complaint against Defendant and he was eventually convicted of rape. The conviction was affirmed by the Appellate Division. Section 130.35 of the Penal Code provides that “a male is guilty of ra pe when he engages in sexual intercourse with a female by forcible compulsion.” “Female” is defined as “any female person who is not married to the actor.” Because of this language, there is a “marital exemption” for forcible rape in the statute. 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, decree, judgment, or written agreement of separation. The order of protection in this case falls within the definition of court order. In accordance, the Defendant was found to have been statutorily not married to Denise at the time of the rape.
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