NCJ Number
74881
Journal
Detroit College of Law Review Dated: (Summer 1978) Pages: 261-276
Date Published
1978
Length
16 pages
Annotation
The marital exception to criminal liability for rape is examined with respect to its history, present American statutory treatment, and relationship to criminal law principles.
Abstract
Although the decision of the New Jersey Superior Court in State versus Smith upheld the common law rule that a man cannot be legally guilty of rape of his wife, the court stated its disagreement with the rule in question, noting the desirability of new legislation to redetermine the type of conduct constituting the substantive crime of rape. The common law rule was first stated by Lord Matthew Hale in England in the 1600's. The marital exception law has been challenged in the English Courts, but so far no legislative pronouncements on the subject have been made. In the United States, 16 States still carry the marital exception rule in their statutes; 13 states do not explicitly provide for the marital exception. However, when separation or divorce procedures have been started, the wife's contractual consent to marital relations has often been considered as revoked. Different judicial dispositions of cases of this nature are cited. The American Law Institute's Model Penal Code embodies the trend toward statutory modification of the common law rule on marital exception. While this paper discusses other legal aspects of the marital exception to rape, it emphasizes the degree of harm posed by marital rape to the individual and society as the main likely determinant of future reforms of the current marital exception laws. Footnotes contain references to relevant court decisions.