WARREN V. STATE
336 S.E.2d 221 (1985)


PROCEDURAL POSTURE: Defendant filed an interlocutory appeal from the judgment of the Fulton Superior Court (Georgia) denying his motions for general demurrer and to dismiss his indictment for the rape and aggravated sodomy of his wife.

FACTS: Warren (D) was indicted for rape and aggravated sodomy of his wife. No particulars of the situation were given by the casebook as to the facts that lead to the charges. D filed a pretrial general demurrer and motion to dismiss the indictment. After a hearing, the motion was denied. D filed an interlocutory appeal.

ISSUE: Is there an implicit marital exclusion that makes it legally impossible for a husband to be guilty of raping his wife?

RULE: There is no implicit marital exclusion that makes it legally impossible for a husband to be guilty of raping his wife.

HOLDING AND ANALYSIS: (Smith, Justice) Defendant was indicted for rape and aggravated sodomy of his wife. Defendant's motions for general demurrer and to dismiss were denied, and defendant sought and was granted an immediate interlocutory appeal. The court affirmed the denial of defendant's motions. The court held that regardless of marital status all persons are provided equal protection of the laws under Ga. Const. art. I, § II, para. II. The court also found that defendant's wife was afforded protection from spousal abuse under Ga. Code Ann. § 10-13-1 et seq. The court held that there was no marital exclusion under Ga. Code Ann. § 16-6-1 for the offense of rape. The court found no common law marital exemption under the aggravated sodomy statute based on implied consent. The court held that the law was sufficient under the Due Process Clause to give defendant sufficient warning of the criminality of his actions.