NCJ Number
75900
Journal
Journal of Family Law Volume: 18 Dated: (April 1980) Pages: 565-586
Date Published
1980
Length
22 pages
Annotation
This article examines the marital rape exemption from its historical origin to current efforts to reform the law; relevant case law is discussed.
Abstract
Although society recognizes rape as an atrocious and brutal act, the vast majority of jurisdictions in the United States deny an entire class of women the protection of criminal rape laws. The common law rule that a husband cannot rape his wife has been codified in statutory provisions which, in effect, exempt a man from prosecution for spousal rape. The origin of the common law rule can be traced back to the 17th century. It is generally expressed in terms of contract law and implied consent. Such legal fictions which deprived women of their equal status under the law have largely been abolished. Since most modern laws reflect changes in women's social status, it is difficult to understand why the law regarding marital rape has remained unchanged. The principal concern seems to be that abolition of the husband's immunity would lead to serious abuses of the law (e.g., false rape charges). There is also a basic uncertainty among many individuals as to the need for change. Finally, the legislative and judicial processes themselves have contributed to retaining this exemption in many States. American courts have thus far taken a traditional approach toward the marital rape exemption. In the first significant case, Commonwealth v. Fogerty (1857), the court clearly relied on the assumption that a husband could not be charged with the rape of his wife. In the most significant recent case which dealt with the issue, State v. Smith (1977), the court upheld the common law rule, although the decision attacked its underlying rationale. In State v. Rideout (1978), the defendant-husband was acquitted of the charge of marital rape. This was the first case of marital rape tried under Oregon's revised law allowing such prosecutions. Legislative response to the problem has been one of reluctance and indifference. Possible legislative compromises include abolition of the immunity when spouses are living apart and providing different penalties for the sexual assault depending upon the type of force used and the extent of injuries. The need for some type of reform is apparent. The article includes 126 footnotes.