Rulings to expand rights opened many doors

JOHN CAHER

"Any law that uplifts the human personality is just. Any law that degrades human personality is unjust.''

The words belong to Dr. Martin Luther King Jr., penned in April 1963 from the Birmingham City Jail, but they echo Sol Wachtler's sentiments on human rights, from his earliest days on the bench, when he tried to assist black teenagers, to his days on the Court of Appeals, when he was responsible for a series of rights-expanding rulings.

Wachtler's decisions opened doors for the handicapped, minorities and women.His decisions literally opened the closed doors of exclusive men's clubs, put teeth behind the determinations of the state Division of Human Rights and helped broaden the definition of a handicap, thus legally shielding more people from the indignity of discrimination. There is perhaps no other area of the law where he was so consistent, so sure of himself.

As an administrator, Wachtler did even more: actively working to improve the lot of women and minorities in the criminal and civil justice systems, lobbying for a more diversified Court of Appeals, and appointing blue-ribbon commissions to identify, and help rectify, both flagrant and insidious bias.

Despite portraying himself as a tough lock-'em-up-and-throw-away-the-key conservative in the 1972 race for the Court of Appeals, Wachtler was offered -- and accepted -- the endorsement of Gay Alliance of Brooklyn when homosexual rights were at least 15 years away from entering the realm of the politically correct.

Wachtler displayed a sensitivity to women's issues from his first days on the bench, when judicial support was hardly a given. The "women's rights'' ruling that may well be Wachtler's most important emerged in the context of a 1984 criminal case, People vs. Liberta.

In that case, the court, led by then Associate Judge Wachtler, ruled for the first time that a man could be convicted of sexually assaulting his wife -- a fairly revolutionary concept.

Mario Liberta of Buffalo had raped and sodomized his wife in the presence of their 2-year-old son, and claimed there wasn't a thing society could do about it. Wachtler and his court had other ideas.

The rape statute defined the offense as forced sexual intercourse with a "female person who is not married to the actor'' and the sodomy statute defined the act as deviate sexual conduct "between persons not married to each other.''

The trial court dismissed the indictment and, on the law, the judge was right. Both law and tradition supported the premise that marital rape is an oxymoron.

But Wachtler said the law was wrong.

"Rape is not simply a sexual act to which one party does not consent,'' he observed. "Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd. . . . A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.''

It's essential to understand the context in which Liberta was decided.

At the time, a handful of determined advocates were pushing states to abolish the marital exemption to rape statutes. However, they were getting nowhere: conservatives were reluctant to arm women with a sword that could potentially be used maliciously; liberals were reluctant to embrace anything that appeared pro-prosecution. Consequently, the legislatures were basically ignoring the problem.

Wachtler's decision gave courts around the nation the insight, and in some cases the impetus, to declare judicially what the lawmakers would not do legislatively or politically.

Liberta was one of Wachtler's many pro-woman decisions that many feminists seemingly forgot about following his downfall. One who did not, however, is Laura "X,'' spokeswoman for the National Clearinghouse on Marital & Date Rape in Berkeley, Calif.

"X'' credited Liberta with providing the impetus for a resolution signed by every country on earth at the Beijing Women's Conference in 1995. Even the Vatican signed on to a declaration that a woman has a right to say no -- anytime, anywhere, even in marriage.

"It was astonishing that that could happen,'' "X'' said. "And there was a direct line from Sol's opinion. He gave us leverage. He gave us a place to stand, and we had never had that before. It was more important than the legislative victories because it was constitutional. It wasn't just a matter where somebody wanted votes from women. It is a very strong decision on equal protection grounds, on bodily integrity and, especially, on privacy. It is better on privacy than Roe vs. Wade. This is about sovereignty.''

First published on Tuesday, April 7, 1998
Copyright 1998, Capital Newspapers Division
of The Hearst Corporation, Albany, N.Y.

About "King of the Mountain"
A Letter to the Editor by Laura X
Home