To the extent these administrative costs are able to be reimbursed, any excess funding shall revert to the General Fund. Notwithstanding any other law, the Director of Finance may authorize the transfer of expenditure authority between this item and Item to effectively administer the programs funded in these items. Upon approval of the Administrative Director, the Controller shall increase this item by an amount sufficient to allow for the expenditure of any transfer to this item made pursuant to Provisions 7, 8, 12, and 14, of Item The Director of Finance may augment this item by an amount not to exceed available funding in the State Court Facilities Construction Fund, after review of a request submitted by the Judicial Council that demonstrates a need for additional resources associated with the rehabilitation of court facilities.
Upon approval of the Director of Finance, the amount available for expenditure in this item may be augmented by the amount of any additional resources available in the Appellate Court Trust Fund, which is in addition to the amount appropriated in this item.
Notwithstanding any other provision of law, the Director of Finance may authorize expenditures in excess of this item for the operation, repair, and maintenance of court facilities pursuant to Section of the Government Code. The security equipment and systems must be upgraded or maintained in a way that mitigates the need for additional security staffing. The Controller shall transfer funds appropriated in this item for base rental as and when provided for in the schedule submitted by the State Public Works Board or the Department of Finance.
Notwithstanding the payment dates in any related Facility Lease or Indenture, the schedule may provide for an earlier transfer of funds to ensure debt requirements are met and pay base rental in full when due. This item may be adjusted pursuant to Section 4. Any adjustments to this item shall be reported to the Joint Legislative Budget Committee pursuant to Section 4.
The Controller shall transfer funds appropriated in this item for base rental as and when provided for in the schedule submitted by the State Public Works Board.
The amount appropriated in this item shall be allocated by the Director of Finance if, in consultation with the Judicial Council, a determination is made that revenues in the State Court Facilities Construction Fund are insufficient to support the rehabilitation of court facilities. In the event the amount appropriated in this item is determined not to be sufficient to address the revenue shortfall for the State Court Facilities Construction Fund, the Director of Finance may increase the amount available for transfer to this item to make sure there are resources to support building repairs for court facilities.
When a request to transfer funds is submitted to the Director of Finance, a copy of that request shall be delivered to the Chairperson of the Joint Legislative Budget Committee and the chairpersons of the fiscal committees in each house of the Legislature.
Delivery of a copy of that request shall not be deemed to be notification in writing for the purposes of the provision.
The Judicial Council shall approve awards made by the commission if the council determines that the awards comply with statutory and other relevant guidelines.
Up to 10 percent of the funds in Schedule 5 shall be for joint projects of courts and legal services programs to make legal assistance available to pro per litigants and not less than 90 percent of the funds in Schedule 5 shall be distributed consistent with Sections to , inclusive, of the Business and Professions Code. Any funding not allocated for joint projects shall be redistributed consistent with Sections to , inclusive, of the Business and Professions Code.
The Judicial Council may establish additional reporting or quality control requirements consistent with Sections to , inclusive, of the Business and Professions Code. Of the amount appropriated in Schedule 5 , not more than 1 percent shall be available, upon order of the Department of Finance, for administrative costs of the Judicial Council and the State Bar.
Of this amount, not more than 1 percent shall be available for administrative costs of the California Access to Justice Commission associated with distributing and monitoring the grants. The California Access to Justice Commission shall make award determinations for grants described in Provision 2.
Any funding not allocated in a given fiscal year shall be reallocated pursuant to Provision 1. The grant process described in Provision 2 shall ensure that any qualified legal service project and support center demonstrates a high need for infrastructure and innovation to ensure that funding is distributed equitably among qualified legal service projects and support centers. The qualified legal service project or support center shall demonstrate that funds received under this provision will not be used to supplant existing resources.
The funds appropriated in Schedule 5 are available for encumbrance or expenditure until June 30, The amount appropriated in Schedule 1 is available for reimbursement of court costs related to the following activities: a payment of service of process fees billed to the trial courts pursuant to Chapter of the Statutes of , b payment of the court costs payable under Sections to , inclusive, and Section of the Penal Code, and c payment of court costs of extraordinary homicide trials.
These resources may be used for the following:. Costs associated with judicial officer pretrial release decisions prior to or at arraignment. Costs for technology to facilitate information exchange and process automation between courts and county departments. Costs associated with providing services to and monitoring of individuals released pretrial. Other programs and practices related to pretrial decisionmaking that address public safety, appearance in court, and the efficient and fair administration of justice.
Courts shall contract with any county department, including county probation departments, to provide pretrial services, except those departments or agencies that have primary responsibility for making arrests or prosecuting criminal offenses. The contractor adheres to the same transparency, accountability, and outcome measure standards that apply to county probation departments. The contractor has a proven record of providing culturally competent and responsive rehabilitative services. The contract will not result in the displacement of county employees or a reduction in the provision of services by county probation department employees.
The contractor pays wages and benefits to its non-supervisory employees that are commensurate with or greater than the wages and benefits paid to public employees in similar job classifications. The contractor does not pay wages and benefits to its most highly compensated executive and managerial employees that are significantly higher than the rates that would be paid to public employees performing similar job duties.
The county has consulted with the court prior to entering into a contract for the provision of these services. Of the amount allocated in Provision 9, superior courts may retain up to 30 percent of the funding for costs associated with these programs and practices. The superior courts shall contract with a county department as described in Provision 12 and shall provide the county department with the remainder of the funds to be used for costs outlined in Provision 11, as appropriate.
The Judicial Council shall retain up to 5 percent of the amount available to the superior courts in Provision 15 for costs associated with implementing, supporting, and evaluating pretrial programs in courts, including, but not limited to:. Providing technical assistance to courts on practices and programs related to pretrial decision-making.
To receive the funding allocated in Provision 9, courts and county departments and their contractors shall collaborate with local justice system partners in reporting to the Judicial Council on pretrial programs and practices, including information on expenditure of funds, as required by the Council, for evaluation of the programs and practices, pursuant to Provision Commencing July 1, , the Judicial Council shall provide an annual report to the Legislature providing an evaluation of pretrial programs and practices, as required in Provision Reimbursements to Support for Operation of Trial Courts The amount appropriated in Schedule 3 shall be made available for all judicial assignments.
Schedule 3 expenditures for necessary support staff shall not exceed the staffing level that is necessary to support the equivalent of three judicial officers sitting on assignments. Prior to utilizing funds appropriated in Schedule 3 , trial courts shall maximize the use of judicial officers who may be available due to reductions in court services or court closures. Upon order of the Director of Finance, the amount available for expenditure in this item may be augmented by the amount of any additional resources available in the Trial Court Trust Fund, which is in addition to the amount appropriated in this item.
When a request to augment this item is submitted to the Director of Finance, a copy of that request shall be delivered to the chairpersons of the committees and appropriate subcommittees that consider the State Budget. Delivery of a copy of that request shall not be deemed to be notification in writing for purposes of this provision.
In order to improve equal access and the fair administration of justice, the funds appropriated in Schedule 7 are available for distribution by the Judicial Council through the Legal Services Trust Fund Commission in support of the Equal Access Fund Program to qualified legal services projects and support centers as defined in Sections to , inclusive, of the Business and Professions Code, to be used for legal services in civil matters for indigent persons.
Upon approval by the Administrative Director, the Controller shall transfer up to 5 percent of the funding appropriated in Schedule 7 to Item for administrative expenses. Ten percent of the funds remaining after administrative costs shall be for joint projects of courts and legal services programs to make legal assistance available to pro per litigants and 90 percent of the funds remaining after administrative costs shall be distributed, consistent with Sections to , inclusive, of the Business and Professions Code.
The Judicial Council may establish additional reporting or quality control requirements, consistent with Sections to , inclusive, of the Business and Professions Code. Funds available for expenditure in Schedule 7 may be augmented by order of the Director of Finance by the amount of any additional resources deposited for distribution to the Equal Access Fund Program in accordance with Sections Sixteen Notwithstanding any other law, and upon approval of the Director of Finance, the amount available for expenditure in Schedule 1 may be increased by the amount of any additional resources collected for the recovery of costs for court appointed dependency counsel services.
Upon approval of the Administrative Director, the amount available for expenditure in Schedule 10 may be augmented by the amount of resources collected to support the implementation and administration of the Civil Representation Pilot Program. Notwithstanding Section of the Government Code and Provision 17 of Item , Budget Act of , and Provision 17 of Item , Budget Act of , trial courts may carry any unexpended funds that were specifically appropriated and allocated by the Judicial Council to address workload related to Chapter of the Statutes of , from —20 and —21 to — Any unexpended funds shall revert to the General Fund.
Upon order of the Department of Finance, the amount available for expenditure in Schedules 1 and 4 may be augmented by an amount sufficient to fund trial court employee benefit increases in — Notwithstanding any other law, and upon approval of the Director of Finance, the amount available for expenditure in Schedule 10 may be increased by the amount of any additional resources collected to support programs pursuant to the Sargent Shriver Civil Counsel Act.
Notwithstanding any other law, upon approval of the Department of Finance, the amount available for expenditure in Schedule 3 may be increased by the amount of any additional resources necessary for the implementation of the Pandemic Early Disposition Calendar Program.
Upon approval of the Administrative Director, the Controller shall increase Schedules 1 or 3 of this item by an amount sufficient to allow for the expenditure of any transfer to this item made pursuant to Provision 15 of Item to support early disposition readiness conference programs.
The Judicial Council shall complete the cost-benefit analysis of self-help services originally required by the Budget Act of Chs. At a minimum, this analysis shall calculate the monetary value of identified benefits, identify the corresponding costs, and identify the net benefit of the various self-help delivery methods by case type. Costs and benefits shall also include the impacts of self-help services on trial court operations. The completed cost-benefit analysis shall be submitted to the Legislature no later than January 1, To the extent the courthouse is opened at a later date, the funding available shall be proportionally reduced based on the month the courthouse begins operations.
The funds appropriated in Schedule 4 shall be for payments to contractual court interpreters and certified and registered court interpreters employed by the courts for services provided during court proceedings and other services related to pending court proceedings, including services provided outside a courtroom. Those funds are also available for the following court interpreter coordinator positions: 1. The Judicial Council shall set statewide or regional rates and policies for payment of court interpreters, not to exceed the rate paid to certified interpreters in the federal court system.
The Judicial Council shall adopt appropriate rules and procedures for the administration of these funds. The Judicial Council shall report to the Legislature and the Director of Finance annually regarding expenditure of the funds appropriated in Schedule 4. Funding appropriated in this item shall be allocated, upon order of the Director of Finance, to trial courts to address cost increases related to court employee retirement, retiree health, and health benefits.
To the extent the funds appropriated in this item exceed the actual cost increases relative to the purposes for which the funds are appropriated, any excess funds shall revert to the General Fund on June 30, Upon approval of the Director of Finance, the amount available for expenditure in this item may be augmented by the amount of any additional resources available in the State Trial Court Improvement and Modernization Fund, which is in addition to the amount appropriated in this item.
Reimbursements to Court Appointed Dependency Counsel This funding shall be allocated by the Judicial Council using the methodology customarily used to distribute statewide court-appointed dependency counsel funding, which shall reflect updates to relevant variables based on the most recently available data. The Judicial Council shall work in collaboration with court-appointed dependency counsel providers to ensure timely submission, review, and payment of monthly invoices attributable to the —23 fiscal year so that determination of the statewide total of federal reimbursements and any portion of the funding described in Provision 2 needed to address any remaining shortfall can be made no later than September 30, Distribution of funds to address any shortfall shall be made by the Judicial Council using the methodology customarily employed to distribute statewide court-appointed dependency counsel funding as described in Provision 1.
Any funds described in Provision 2 not encumbered by October 1, , for eligible activities attributable to the —23 fiscal year shall revert to the General Fund. The amount transferred to each fund shall be determined by the Department of Finance using information provided by the trial courts and the Judicial Council. Upon order of the Department of Finance, the amount available for transfer in this item may be increased by an amount sufficient to fund trial court employee benefit increases in — Upon order of the Department of Finance, the amount available for transfer in this item may be increased by an amount to augment the State Trial Court Improvement and Modernization Fund if revenues to support the fund are insufficient.
In the event the amount appropriated in this item is determined not to be sufficient to address any revenue shortfalls in the State Trial Court Improvement and Modernization Fund, the Director of Finance may increase the amount available for transfer to this item. The amount appropriated in this item shall be allocated by the Director of Finance if, in consultation with the Judicial Council, a determination is made that revenues in the Trial Court Trust Fund are insufficient to support trial court operations.
In the event the amount appropriated in this item is determined not to be sufficient to address the revenue shortfall in the Trial Court Trust Fund, the Director of Finance may increase the amount available for transfer to this item to ensure trial court operations are funded. The amount appropriated in this item shall be allocated by the Director of Finance, in consultation with the Judicial Council, to backfill the Trial Court Trust Fund for revenue shortfall resulting from the reduced revenues from the civil assessment fee.
The funding in Schedule 2 shall be distributed by the Judicial Council through the Legal Service Trust Fund Commission of the State Bar pursuant to Provision 1 to qualified legal services projects and support centers to provide eviction defense, other tenant defense assistance in landlord-tenant rental disputes, or services to prevent foreclosure for homeowners, including pre-eviction and eviction legal services, counseling, advice and consultation, mediation, training, renter education, and representation, and legal services to improve habitability, increasing affordable housing, ensuring receipt of eligible income or benefits to improve housing stability, legal help for persons displaced because of domestic violence, and homelessness prevention.
Of this amount, no more than 2. The remaining funds shall be allocated as follows:. These funds shall be distributed as soon as practicable after the effective date of this act and shall not supplant existing resources. The grant process shall ensure that any qualified legal service project or support center that received funding pursuant to subdivision a may only receive funding pursuant to this subdivision if that qualified legal service project or support center demonstrates that funds received under this subdivision will be not be used to supplant existing resources, and will be used to provide services to tenants not otherwise served by that qualified legal service project or support center.
The commission shall make the grant award determinations. In awarding these grants, preference shall be given to qualified legal aid agencies that serve rural or underserved communities. Any funding not allocated pursuant to this competitive grant process shall be distributed pursuant to subdivision a , except that there shall be no minimum funding amount for these funds.
Funds appropriated in Schedule 2 are available for encumbrance or expenditure until December 31, The State Bar shall annually provide to the Judicial Council a report that includes funding allocations, annual expenditures, and program outcomes by service area, and service provider for all Equal Access Fund and federal funding.
Data shall be reported using the established reporting framework in the Equal Access Program including applicable outcome measures reported in Legal Services standardized reporting, state level performance measures, and main benefits scores.
The Judicial Council shall provide the report to the Department of Finance by January 1 of each year for the prior fiscal year. The Judicial Branch and the State Public Works Board are authorized to execute and deliver any and all leases, contracts, agreements, or other documents necessary or advisable to consummate the sale and issuance of bonds in accordance with the State Building Construction Act of or otherwise effectuate the financing of the scheduled project.
Reimbursements to Commission on Judicial Performance Upon order of the Department of Finance, the Controller shall transfer such funds as are necessary between this item and Item Upon order of the Department of Finance, the Controller shall transfer such funds as are necessary between Item and this item.
The funds appropriated in Schedules 1 b and 1 c are exempt from the provisions of Sections Upon receipt of donations in accordance with Sections and of the Government Code, the Director of Finance may authorize the augmentation of this item in excess of the amount appropriated consistent with the purposes of furthering immigrant integration.
Reimbursements to California Business Investment Services Notwithstanding any other law, this funding shall be available for encumbrance or expenditure until June 30, These funds shall be available for expenditure or encumbrance until June 30, Consistent with Section Any amount transferred pursuant to this provision shall be repaid to the General Fund upon order of the Director of Finance when no longer needed to maintain a minimum required reserve.
Upon approval by the Department of Finance, these funds may be transferred between this item and Item The funds appropriated in Schedule 3 shall be available for Visit California to promote travel and tourism. Not more than 5 percent of the amount appropriated in this item may be used to support administrative costs, which shall be available for expenditure or encumbrance until June 30, and liquidation until June 30, Reimbursements to Office of the Secretary of Government Operations Of the amount appropriated in Item , Budget Act of , up to 5 percent may be transferred to Schedule 2 of this item for the administration of planning and progress grants to address homelessness.
The amount appropriated in Item , Budget Act of and any amount transferred to Schedule 2 of this item shall be made available for encumbrance or expenditure until June 30, Of the amount appropriated in Schedule 1 , up to 5 percent shall be allocated to the California Interagency Council on Homelessness within the Business, Consumer Services, and Housing Agency to fund the support and administration of providing flexible aid to local jurisdictions.
The amount appropriated in this item and any amount allocated to the California Interagency Council on Homelessness within the Business, Consumer Services, and Housing Agency shall be available for encumbrance or expenditure until June 30, The amount appropriated in this item is available to provide grants to address encampments for persons experiencing homelessness, in accordance with applicable laws. Of the amount appropriated in Schedule 1 , up to 5 percent shall be allocated to the California Interagency Council on Homelessness within the Business, Consumer Services, and Housing Agency to fund the support and administration of resolving critical encampments and transition individuals into permanent housing.
Funds appropriated in this item shall be included in, and any unused funds revert to, the share of annual proceeds continuously appropriated to the Transit and Intercity Rail Capital Program as specified in subparagraph A of paragraph 1 of subdivision b of Section of the Health and Safety Code. Notwithstanding any other provision of law, federal funds appropriated in this item but not encumbered or expended by June 30, , may be expended in the —24 fiscal year.
Notwithstanding any other provision of law, funds appropriated in this item may be transferred to Item upon order of the Department of Finance. Funds appropriated in this item shall be available for encumbrance or expenditure and liquidation until June 30, Notwithstanding any other law, grants awarded or contracts entered into or amended pursuant to Provision 1 shall be exempt from the personal services contracting requirements of Article 4 commencing with Section of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code, and from the Public Contract Code and the State Contracting Manual, and shall not be subject to the approval of the Department of General Services.
Notwithstanding Provision 1, the Department of Finance is authorized to increase expenditure authority in this item to support project management activities associated with the Child Welfare Services-California Automated Response and Engagement System project. Reimbursements to Center for Data Insights and Innovations The amounts appropriated in Provisions 1 and 2 shall be available for encumbrance or expenditure until June 30, Reimbursements to Administration of Natural Resources Agency The amount appropriated in this item shall be available for encumbrance or expenditure until June 30, Up to 5 percent of the amount appropriated in this item may be used for administrative costs.
Chapter 3. No funds may be expended for existing obligations imposed on any party by law. Notwithstanding any other provision of law, the funds appropriated in this item shall be available for encumbrance or expenditure until June 30, The funds appropriated in this item are available for encumbrance or expenditure until June 30, The balances of the appropriations provided in the following citations are reappropriated for the purposes provided for in those appropriations and shall be available for encumbrance or expenditure until June 30, Item , Budget Act of Ch.
Notwithstanding any other law, the period to liquidate encumbrances of the following citations is extended to June 30, Notwithstanding Section of the Public Resources Code, the funds appropriated in this item shall be used for grants to support community-based organizations and residents to engage in emergency preparedness, public health protection, environmental and climate decision-making, and coordinated enforcement efforts affecting their communities.
The funds appropriated in this item shall be available for encumbrance or expenditure until June 30, , for support or local assistance, and shall be available for liquidation until June 30, Not more than 5 percent of the amount appropriated in this item may be used for administrative costs. The amount appropriated in this item includes revenues derived from the assessment of fines and penalties imposed as specified in Section Reimbursements to State Planning and Policy Development Innovative activities eligible for an award under this program shall be sustainable and capable of being scaled across the state.
The California Education Learning Lab shall establish a selection committee responsible for establishing nomination procedures, creating selection criteria, evaluating projects, and selecting grantees. The selection committee shall fulfill the following criteria:. Consist of 12 members, 10 of which shall be appointed by the Governor, one of which shall be appointed by the President pro Tempore of the Senate, and one of which shall be appointed by the Speaker of the Assembly.
Consist of experts from a range of academic disciplines and sectors of society. As feasible, the selection committee members shall include, but not be limited to, a climate specialist, a labor economist, and a data scientist. In evaluating projects and selecting grantees, the selection committee shall consider a broad range of individuals and teams eligible for potential nominations and potential awards, including, but not necessarily limited to, the following:.
Researchers or policy scholars who improve our understanding of or our mitigation tactics for climate change. Researchers or policy scholars who improve our understanding of or our policies for just transitions in the shift towards a low-carbon economy.
No more than 5 percent of the funds provided in this provision may be used for administrative support costs. Funds appropriated in this provision shall be available for encumbrance or expenditure until June 30, Actions taken to implement provisions of this provision by the California Education Learning Lab or the selection committee established in paragraph c shall not be subject to Chapter 3.
By January 1, , the California Education Learning Lab shall report to the Director of Finance and the Legislature information regarding the awards made under the Golden State Awards program, including the number and amount of awards made, the recipient or recipients of each award, and a summary of the innovative activities for which the recipient or recipients received an award.
Notwithstanding any other law, the Office of Planning and Research may provide advance payments of grant funds from this provision. The balances of the appropriations provided in the following citations are reappropriated for the purposes provided for in those appropriations and shall be available for encumbrance or expenditure as outlined below:.
Provision 2, Item of Budget Act of Ch. Reimbursements to Special Programs and Grant Management Funds appropriated in this item may be reduced by the Director of Finance, after giving notice to the Chairperson of the Joint Legislative Budget Committee, by the amount of federal funds made available for the purposes of this item in excess of the federal funds scheduled in Item Pursuant to subdivision f of Section Reimbursements to Alfred E. Alquist Seismic Safety Commission The funds appropriated in this item shall be used for direct costs of the commission staff and appointed commissioners.
Any funds that may become available, in addition to the funds appropriated in this item, for disaster response and recovery may be allocated by the Department of Finance subject to the conditions of Section Notwithstanding any other provision of law, the funds appropriated in this item may be expended without regard to the fiscal year in which the application for reimbursement was submitted to the Federal Emergency Management Agency.
The funds appropriated in this item shall be used for the maintenance of fire engines and support of the California Fire and Rescue Mutual Aid System.
The funds appropriated in this item shall not be subject to the provisions of subdivision b of Section The Department of Finance may authorize the augmentation of the total amount available for expenditure under this item in the amount of any donations from the private sector received by the Office of Emergency Services that are in excess of the amount appropriated in this item.
Any augmentation shall be accompanied by a spending plan submitted by the Office of Emergency Services. The spending plan shall include, at a minimum, the source and level of donations received to date, a detailed description of activities already completed and those activities proposed, the source and amount of any additional donations expected to be received, and the identification of any impact of the spending plan on other state funds.
Notwithstanding any other provision of law, the Director of Finance may authorize a loan from the General Fund, in an amount not to exceed 35 percent of expenditures appropriated in this item to the Office of Emergency Services, provided that:.
The loan is to meet cash needs resulting from the delay in receipt of payments for services provided. Interest charges may be waived pursuant to subdivision e of Section of the Government Code.
The funds appropriated in Schedule 1 of this item are for support of and, upon order of the Department of Finance, may be transferred to any other state entity for costs incurred related to activities performed as a result of being mission tasked by the Office of Emergency Services pursuant to the California Emergency Services Act. The information shall be organized by state entity and provide the costs funded by each approved transfer. About 42, search results. The code is an attempt to rationalize criminal law in relation to modern society and to establish a logical framework for defining offenses and a consistent body of general principles on such matters as criminal intent and the liability of accomplices.
People also ask. What does Model Penal Code mean? The Model Penal Code is the most successful, attempt to codify American criminal law to date. The Model Penal Code is not law and has no binding effect. It has, however, been the model for many state criminal codes and has been very influential on state and local lawmakers. A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law.
Criminal code - Wikipedia en. I6 Wall. Kairys ed. Title VII prohibits discrimination on the basis of sex by any employer of fifteen or more persons engaged in an industry affecting commerce.
In Reed, the Supreme Court departed from its traditional rational relation standard of review with respect to gender-based classifications and established the foundation for the intermediate level of review developed in subsequent decisions. See Missis- sippi Univ. Hogan, U. United States, U. Russell's survey defined rape as forced oral, anal, or vaginal penetration.
Traditionally, rape has been defined as nonconsensual sexual intercourse by a man with a female, not his wife. In the states with marital rape exemptions, the scope of the ex- emption depends upon the perceived stability of the underlying mar- riage. States generally regulate the scope of the exemption through the definition of "not married" under the statute. For example, some states define "not married" so as to allow prosecution if the parties were living apart at the time of the incident.
See FLA. New York has removed its marital rape exemption through judicial action. See People v. The Georgia judiciary has held that its rape statute, which is silent on marital rape, does not implicitly incorporate the common law exemption. See Warren v. State, Ga. Several states allow prosecution of husbands for charges of first or second-degree rape, but disallow prosecution for lesser sexual offenses. See, e. Laws 67 Vol. A, A ; MISS. CODE art. Four states allow prosecution if the spouses were living apart or one spouse had initiated divorce proceedings at the time of the incident.
The exemption purports to protect the harmonious and intimate nature of the marital relationship. Yet nearly one- quarter of the states have recently expanded the marital rape exemp- tion to cover unmarried cohabitators 3 7 and "voluntary social compan- ions. Instead, the expansion of the exemption beyond the marital relationship reflects the deeply discriminatory vision of women inher- ent in the theories used to justify the exemption; in particular, the expansion reflects a modern version of Hale's theory that women who enter into relationships with men give an implied consent to sexual intercourse or that those who consent to intercourse once are forever bound.
The vision that women impliedly consent to rape constitutes one side in the legal debate over the marital rape exemption - a debate that centers on the interpretation of a husband's unconsented-to sexual intercourse with his wife. One interpretation, which this Note terms the "male perspective," 39 sees marital rape as "a bedroom squabble over whether to have sex tonight. The male perspective accepts the myth that marital rape has no traumatic long-term effects.
Victims of marital rape experience a trauma similar to that of victims of stranger rape. Rape by anybody, including a husband, "is a degrading, violent act which violates the bodily integ- rity of the victim and frequently causes severe, long-lasting physical and psychic harm. Frequently these wives are also battered. She could have claimed "rape" any time during that time. Half of the married men in the country are guilty of the same thing if that's rape.
Finkelhor, supra note It was the end of my pedestal days. He approached me sexually when I was still very injured, and I said, 'No, please don't. Not now So don't fight me. When I saw that he was determined to go ahead, I really couldn't believe it, and I started crying.
He proceeded, and when he was finished he left the room and slammed the door. Smith, 85 N. See D. Section A presents two arguments, both of which perceive the marital rape exemption in terms of the violation of women's individual rights. Subsection i argues that the marital rape exemption impermissibly infringes the privacy rights of married women.
Subsection 2 argues that the exemption unconstitutionally burdens the privacy rights of all women. Section B takes a broader political perspective and argues that a rights-based approach, although a powerful one to take in court, is limited by its conceptual framework of individual, abstract rights. This Section argues that because the rights approach focuses on the rights of individual women, it fails to identify marital rape as part of the broader problem of women's subordination.
Women's Right to Privacy x. Privacy Rights of Married Women. Connecticut,5 2 Eisenstadt v. Baird,5 3 and Roe v. The Court has declined to locate the right to privacy in any specific constitutional provision, but rather has held that the right inheres in the first, fourth, fifth, and ninth amendments, the penumbra of the Bill of Rights, and in the concept of liberty guaranteed by the four- teenth amendment.
Burgess ed. It allows him to impregnate her against her will in denial of her repro- ductive freedom. And perhaps most important, the exemption extin- guishes a married woman's autonomy in one of the most personal and intimate of all human interactions. The state thus violates the privacy rights of married women by allowing their husbands to rape them 60 without fear of prosecution.
State laws that interfere with the right to privacy in this way must be narrowly tailored to further a compelling state interest. Lee, S. I6X, 16i8-i9 holding that individual privacy interests, including the right to bodily integrity, render compulsory surgery in search of criminal evidence unconstitutional ; cf.
Union Pac. Botsford, U. Baird, U. Roe, U. Thus, the amendment does not proscribe marital rape as such. But the amendment does govern state actions taken to regulate rape and other criminal conduct.
And a deliberate legislative or judicial choice to carve exceptions out of the criminal code - such as the marital rape exemption - must also constitute state action for purposes of fourteenth amendment analysis.
Reitman v. Mulkey, U. Kraemer, U. Professor Tribe has noted that "if the conception of liberty is sufficiently developed to define a sphere of private autonomy free from both governmental and private infringement, a government decision not to protect individuals from private in- fringements will plainly be a species of unconstitutional state action.
Wade, U. Privacy Rights of All Women. Specifically, the marital rape exemption falls within the doctrine of "unconstitutional conditions," which holds that a state may not condition the receipt of government benefits upon the nonassertion of a constitutional right. The marital rape exemption unconstitutionally conditions women's receipt of government benefits in two distinct ways. First, the ex- emption conditions the benefit of marriage upon women's forfeiture of their rights to bodily integrity, procreative freedom, and individual autonomy.
Second, the exemption works in reverse by conditioning the benefit of protection from rape upon women's forfeiture of their fundamental right to marry. When a statute has been shown to condition the receipt of a government benefit upon the surrender of a constitutional right, courts 63 See infra pp.
The New York Court of Appeals has held that these interests fail to withstand even minimal scrutiny. The defendant claimed that the state's rape statute violated the equal protection clause because it discriminated against "unmarried" men. The New York Court of Appeals agreed, striking down the exemption as unconstitutional. Verner, U. Healthy Bd.
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