§ 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.
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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 pMmorpg Adult Www J Lo Sex Williams v. State Mmorpg Adult Www J Lo Sexu k Adult Adult kMmorpg Adult Www J Lo Sex Williams v. State Mmorpg Adult Www J Lo Sexs Adult