NCJ Number
68612
Journal
Baylor Law Review Volume: 32 Issue: 1 Dated: (WINTER 1980) Pages: 109-121
Date Published
1980
Length
13 pages
Annotation
THE NEED FOR REFORM IN TEXAS LAW WHICH DOES NOT RECOGNIZE THE POSSIBILITY OF A HUSBAND RAPING HIS WIFE IS CONSIDERED.
Abstract
PROPOSALS IN THE 1979 SESSION OF THE TEXAS LEGISLATURE WOULD HAVE REMOVED THE SPOUSAL EXEMPTION FROM THE RAPE STATUTE. ALTHOUGH THE PROPOSALS WERE NOT ADOPTED, THEIR CONSIDERATION INDICATES SIGNIFICANT SUPPORT FOR REFORM IN THIS AREA. THE CURRENT SPOUSAL EXEMPTION FROM RAPE IS BASED UPON THE RULE OF PERMANENT CONSENT, AND ANY ATTEMPT AT MODIFICATION HAS BEEN MET WITH SEVERAL OPPOSING ARGUMENTS, INCLUDING THE POSSIBILITY OF FABRICATED CHARGES AND SUITS, PROBLEMS WITH EVIDENCE AND PROOF, THE AVAILABILITY OF OTHER REMEDIES AND PENALTIES, UNFAIRNESS OF THE SAME PUNISHMENT FOR HUSBAND AND STRANGERS, AND THE DESIRABILITY OF A POLICY OF JUDICIAL NONINTERVENTION IN FAMILY MATTERS. WHILE THESE ARGUMENTS MAY BE VALID IN COUNTERING UNRESTRICTED PROVISION FOR A CRIME OF RAPE BETWEEN HUSBAND AND WIFE, PROTECTION SHOULD BE AFFORDED TO WOMEN NO LONGER LIVING WITH THEIR HUSBANDS, WHO HAVE INSTITUTED LEGAL PROCEEDINGS FOR TERMINATION OF THE MARRIAGE RELATIONSHIP, OR WHO HAVE BEEN VIOLENTLY SEXUALLY ATTACKED BY THEIR HUSBANDS. THE SAME FACTORS THAT LED THE TEXAS SUPREME COURT TO ABOLISH THE INTERSPOUSAL IMMUNITY FOR INTENTIONAL TORTS ALSO DEMAND LEGISLATIVE AND JUDICIAL RECONSIDERATION OF THE ABSOLUTE IMMUNITY BETWEEN THE SPOUSES FOR CRIMINAL PROSECUTION FOR RAPE. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED)