People v. Merfert

The defendant Merfert, a female, moves to dismiss an indictment in which she is charged with the crime of rape in the first degree in violation of subdivision 1 of section 130.35 of the Penal Law.

Merfert is indicted jointly with two males and bases her dismissal motion on the contention that, being a female, she is legally and factually incapable of committing rape. She further claims that even if a female may be properly charged with rape, her alleged participation did not factually rise to the statutory standard of culpability.

The legal capacity of a female to be answerable for the crime of…