People v. Liberta - 64 N.Y.2d 152, 485 N.Y.S.2d 207, 474 N.E.2d 567 (1984)

Rule:

When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded. Accordingly, the unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void.

Facts:

Defendant, while living separate from his wife and after a temporary order of protection had been issued to his wife, forced her to have intercourse and perform fellatio on him. He appealed his convictions of rape under N.Y. Penal Law § 130.35 and sodomy under N.Y. Penal Law § 130.50 on equal protection grounds and on the basis of his being married to his wife at the time. 

Issue:

Under the circumstances, should the defendant’s convictions be reversed? 

Answer:

No.

Conclusion:

The defendant’s convictions for rape and sodomy were affirmed. The court struck down the marital exemptions to the rape and sodomy statutes as having no rational basis. The court determined that the equal protection argument required the court to either eliminate the statutes or to make the statutes gender neutral. The court determined that making the statutes gender neutral would have addressed the equal protection concerns and would have produced a better result than declaring the statutes a nullity because of the effect such a declaration would have had on public safety.