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Sexual Assault: The Case for Removing the Spousal Exemption from Texas Law

NCJ Number
Baylor Law Review Volume: 38 Issue: 3 Dated: (Fall 1986) Pages: 1041-1062
L Kivett
Date Published
21 pages
In Texas, a man cannot be convicted for committing a sexual assault upon his wife except under two collateral circumstances: the couple does not reside together, or an action is pending for divorce or separate maintenance.
The notion of spousal immunity to charges of sexual assault goes back to the 17th Century and is based on the reasoning that rape implies lack of consent to sexual relations, while marriage itself involves irrevocable consent. However, modern views of marriage, the rights of women, and the roles of parties within the marriage have changed, weakening the historical justifications for maintaining a spousal exemption for rape. While statutory exceptions have already chipped away at immunity in Texas, it is time for the State to join other jurisdictions in abrogating spousal immunity and assuring equal protection of the law without regard to personal notions about the duties accompanying wedlock. 165 footnotes.


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