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A Brooklyn Supreme Court judge has broadened the range of sex crimes for which husbands can no longer claim clemency under the “marital exception.” While the Court of Appeals held the marital exception for rape unconstitutional in 1984 and the Appellate Division, Second Department, extended the ruling to first-degree sexual assault in 1992, Supreme Court Justice John M. Leventhal’s decision marks the first time that a New York court has held that husbands can be found guilty of third-degree sexual assault. Unlike rape and first-degree sexual assault, third-degree sexual assault does not require compulsion, but rather only the lack of consent for sexual contact. “Sexual contact” is defined under the Penal Law as the touching of the “intimate parts” of a person “not married to the actor.” Justice Leventhal ( See Profile ) ruled there is no constitutional basis for the “married” exception. “[T]here is a documented history of defendants invoking the marital relationship, and the implicit conjugal rights purportedly included therein, as a sword with which to commit crimes,” he held in People v. Alexis , 6067/06. The decision will be published Friday. “Over time, however, there has been an erosion of support for this concept and it is now well established that spouses have no right to commit crimes in the name of conjugal visits or familial relations,” Justice Leventhal said. “Such an argument should never again be countenanced in an enlightened society.” The decision marks a rare instance of a court of original jurisdiction holding the application of a statute to be unconstitutional. Defendants Ted Alexis and Michael Lopez were both charged with the third-degree sexual assault of their wives. Both defendants claimed the marital exception as a defense. Faced with the identical issue in two separate cases, Justice Leventhal issued a joint decision on their motions to dismiss. He noted that in People v. Liberta, 64 NY2d 152, the Court of Appeals concluded there was no rational basis for distinguishing between marital and nonmarital rape, thereby ending the long-standing “marital exclusion” for rape. The Second Department, in People v. Horvath, 183 A.D.2d 915, extended that holding to first-degree sexual assault, which prohibits “sexual contact [by] forcible compulsion.” “The court reasoned that sexual abuse in the first degree, like first degree rape, involves the element of forcible compulsion and therefore is a criminal act regardless of the relationship between the actor and the victim,” Justice Leventhal wrote in extending that reasoning to third-degree sexual assault. Noting “that courts of original jurisdiction should ordinarily refrain from determining the constitutionality of statutes,” the judge added that “such determinations are permissible if the conclusion is inescapable and the invalidity of the act is apparent on its face.” Here, he wrote, “The only possible rationale for the continued constitutionality of the marital exception for sexual abuse in the third degree is that a person has an absolute right to conjugal relations with his or her spouse based on an assumption that consent to such relations is implicit in marriage.” The decision concluded, “At one time, the law may have supported this rationale, however abhorrent.” Legal Aid attorney Scott Rudnick represented Mr. Alexis. Assistant District attorney Dean Sovolos prosecuted his case. Mr. Rudnick said that Mr. Alexis, who is also facing rape charges, is unlikely to appeal. “It’s not the top count against my client, so in [his] case it’s going to have very little bearing on what happens down the road,” Mr. Rudnick said. Brooklyn solo-practitioner Harold C. Baker represented Mr. Lopez. Assistant District Attorney Seth Goldman prosecuted his case. Mr. Baker said his client, who is also facing a charge of violating an order of protection, may appeal. “It’s an interesting decision and the issue is preserved for appeal,” Mr. Baker said. The Brooklyn District Attorney’s Office did not return a call for comment. - Mark Fass can be reached at [email protected] .

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