John M. Coulter, Jr., for defendant.
John R. Heilman, Jr., District Attorney (
John R. King of counsel), for plaintiff. RAYMOND C. BARATTA, J. Defendant, Marjorie Ostrander, is charged by indictment dated August 27, 1968, with the crime of
would enable persons to take advantage of this novel experiment in family relations, where there was no family or where there was no public policy in favor of preserving the relationship that existed prior to the assault. There are a host of factual patterns imaginable which would fall within article 8 and section 811 if a less restricted interpretation of the statute were adopted.
[*] In the most recent case involving transfer (
People v. James,
supra, p. 956), Justice J. IRWIN SHAPIRO stated:
"Neither the Constitution nor the statute contains a definition of the term `household' and the `Committee Comments' under section 812 of the Family Court Act in McKinney's Judiciary Law (Pt. 1, Book 29A, p. 343) point up the legislative intention not to stratify the meaning of that term. It there said: `This section which is designed to implement section 13 subd. b, clause 7 of the new Judiciary Article, (Const. Art. 6) relies on the common law method of case by case adjudication to define "family", "household", and "disorderly conduct" for purposes of the civil proceeding provided in this article.'
"Available constitutional and legislative history fails to shed any light on the reason or reasons for the inclusion of the term `household' in both the Constitution and the appplicable statutes. Neither the report of the Joint Legislative Committee on Court Reorganization with reference to the Family Court Act (transmitted to the Legislature on January 30, 1962) nor the Report of the Joint Legislative Committee on Matrimonial and Family Laws (N. Y. Legis. Doc., 1962, No. 34) mentions this matter in any way." (
supra at p. 956).
In that case, Justice SHAPIRO concluded that legislative intent, with respect to the definition of the word "household," was to place upon the court the responsibility for defining the term
were not members of the same household at the time of the alleged assault, and that defendant is not entitled to the benefits of article 8 of the Family Court Act. The motion is in all respects denied. [*] The court has previously cited the existing lower court decisions in New York State, which interpret the word, "houshold," to include persons living together as husband and wife without the benefit of legal marital relationship (
People v. Dugar,
supra;
People v. Johnson,
supra;
People v. James,
supra). This decision injects adultery into the factual pattern of the prior decisions. Logically speaking, however, it is conceivable that if a literal interpretation of the word, "household" were adopted, section 811 and article 8 of the Family Court Act would be available to homosexuals living together as husband and wife, and polygamists; for if the only requirement of a "household" is the existence of a husband and wife relationship, then logically it could be argued that any of the above groups would fall within the definition. Thus, this court is inclined to limit its interpretation of the term, "household" to those relationships in which there is a public policy in favor of preserving the same.