NCJ Number
94925
Journal
Journal of Family Law Volume: 22 Issue: 3 Dated: (1983-84) Pages: 423-443
Date Published
1984
Length
211 pages
Annotation
Accepting the desirability of eliminating the marital exemption for rape, this essay takes issue with reform proposals which recommend that all sexual intercourse without the wife's express consent be criminalized as rape.
Abstract
The case for reforming rape legislation to incorporate marital rape is strong, but the case for criminalizing all intercourse except that with the spouse's express consent is not. The idea that adequate reform of the marital exemption must criminalize all intercourse without express consent detracts from the effort to protect women from domestic violence. It does so by changing the issue from punishing and deterring violence to eliminating unwanted sex. This trivializes the issue and encourages opposition to reform. Reluctance by reformers to accept implied consent for fear of the kinds of abuses associated with the marital exemption rests on accepting the promissory conception of consent as only relevant interpretation. The plausibility of an alternative permissive view should dispel that reluctance, and, together with the problems that the express-consent provision raises for reform efforts, should be sufficient to argue for the abandonment of an emphasis on express consent and with it the absence-of-consent clause. Forty-eight footnotes are provided.