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 uWilliams v. State Porn Porn Toon Name Www Watch 203942z u Porn sWilliams v. State Porn Porn Toon Name Www Watch 203942r e s s Dvd Porn Porn