On February 9, 2016, the Superior Court of Pennsylvania handed down Com. v. Benito, 2016 Pa. Super. 30.
Brent Benito (“Husband”) and L.C. (“Wife”) were married in Trinidad in 2011. Wife subsequently rented an apartment in Upper Darby, Pennsylvania, while Husband remained in Trinidad.
Husband moved into Wife’s apartment in September, 2013. The relationship quickly deteriorated and Husband became physically abusive. In December, 2013, while Husband was in Connecticut visiting a friend, Wife told Husband not to return to the marital residence. Wife also changed the locks.
Husband returned, discovering that the locks were changed. Wife, who was home, indicated that Husband was not welcome. Husband broke open the door, and subsequently sexually assaulted Wife.
On appeal, Husband challenged the sufficiency of the evidence supporting his conviction for criminal trespass. In doing so, Husband argued that he was a person “privileged” to enter the residence, under the burglary statute, 18 Pa.C.S. Section 3503(a)(1)(ii).
Section 3503(a)(1)(ii) provides that a person commits the crime of criminal trespass if he enters a building or occupied structure “knowing that he is not licensed or privileged to do so,” by breaking “into any building or occupied structure or separately secured or occupied portion thereof.”
Husband argued, correctly, that no case existed, which stood for the proposition that a spouse was not such a privileged person, following the passage of only a short period of absence from the marital residence, and without a court order addressing exclusion of that spouse.
In seeming agreement with Husband, the court first noted that a privileged person is one “expected to be on the premises often and in the natural course of his duties or habits.” The court added, however, that “a person who is privileged may still commit burglary if he would not reasonably be expected to be present.”
The Commonwealth argued that Husband had only resided with Wife for four months and that Wife was the sole tenant on the lease. The Commonwealth further argued that “marriage does not provide absolute privilege to each [spouse’s] property.”
The court affirmed, adopting the Commonwealth’s latter argument. The court held that Husband “provides no support for his contention that the mere fact of the parties’ marriage grants him automatic license to enter the victim’s domicile over her emphatic objection.”
Having thus undermined the parties’ marital connection, the court applied the standard factors in determining whether Husband was privileged to enter Wife’s residence. In doing so, the court held as important: (1) Wife being the sole party on the lease; (2) Husband had apparently left his key when traveling to Connecticut; (3) Wife told Husband not to return, while away; (4) Wife changed the locks; (5) Wife refused to allow Husband to return; and (6) Husband forcibly entered the apartment.
This case represents a stark departure from the common presumption that the parties to a marriage are privileged to enter, and even break into, the marital residence. In fact, it is often the case that police will inform and aggrieved spouse that police can take no action against the opposing spouse for such conduct.
Though not addressed by the Benito court, this decision also implies an ability to effectively exclude one spouse from a marital residence, which requires neither a protection from abuse order nor an order on exclusive possession of the marital residence. Extremely important to this possibility, however, is one spouse’s sole and separate interest in the residence in which both spouses happen to reside.
Full opinion here: