NCJ Number
81672
Journal
Marquette Law Review Volume: 65 Issue: 1 Dated: (Fall 1981) Pages: 120-138
Date Published
1981
Length
19 pages
Annotation
This paper argues that the spousal rape exemption should be abandoned, examining rationales often given for such laws and reviewing case law and statutory treatment.
Abstract
The position that a man cannot be guilty of raping his wife was first enunciated by Lord Matthew Hale in 1736 and probably had its roots in the theories of the wife as chattel and her forfeiture of any legal existence after her marriage. Courts still follow the related concept of an irrevocable consent to sexual relations after marriage, although it is inapplicable to modern marriage arrangements, domestic abuse laws, and situations where spouses are separated. The most popular reason advanced for retaining the spousal exemption is that insurmountable proof problems will arise if a wife brings rape charges against her husband. These difficulties, however, exist in any rape case. Others argue that a rape charge destroys any chances for reconciliation and that wives have the alternatives of pressing abuse charges or filing for divorce. English judges have varied in their opinions regarding spousal exemptions, while American cases involving a husband's rape of his wife have been sparse. Several cases are reviewed, with attention to the New Jersey appellate court's decision in State v. Smith. Although New Jersey had enacted a statute eliminating the spousal exemption after Smith raped his wife, the court found that Smith was not covered by the common law exemption because it could not have been meant to apply to revocable marriage. An assessment of State laws on marital rape shows that it is legal for a husband to rape his wife in any State with a few exceptions. This is true in some States even if they are living apart, and other States give the exemption to men who live with women without being married. The article contains 178 footnotes.