NCJ Number
66001
Journal
Criminal Law Review Dated: (SEPTEMBER 1979) Pages: 558-565
Date Published
1979
Length
8 pages
Annotation
THE NATURE OF THE LAW OF RAPE AS IT APPLIES TO THE INSTITUTION OF MARRIAGE IS DISCUSSED IN ITS LEGAL CONTEXT; SOCIAL AND HISTORICAL INFLUENCES ON THE LAW ARE EMPHASIZED.
Abstract
IT MAY BE ARGUED THAT THE PURPOSE OF THE LAW OF RAPE IS TO PROTECT MALE PRIVILEGE. EXAMINATION OF EARLY ENGLISH LAW FURNISHES STRONG EVIDENCE THAT THE FUNCTION OF THE LAW OF RAPE IS TO SAFEGUARD MEN'S PROPRIETARY RIGHTS. TODAY, THE SUBSTANTIVE OFFENSE IS SOLELY CONCERNED WITH THE SEXUAL VIOLATION OF WOMEN, BUT IN ITS PROCEDURAL ASPECTS, TRACES OF FORMER ATTITUDES SURVIVE. EVIDENCE THAT THE VICTIM IS A WOMAN OF LOOSE MORALS OR THAT SHE HAD PREVIOUS SEXUAL INTERCOURSE WITH THE ATTACKER IS DEEMED RELEVANT TO THE ISSUE OF CONSENT BUT IN REALITY ATTACKS THE VICTIM'S VERACITY RATHER THAN THE OFFENDER'S INNOCENCE. THE LEGAL JUSTIFICATION FOR THE CONTINUING SUBORDINATION OF THE MARRIED WOMAN TO HER HUSBAND IS BASED ON A DECLARATION MADE BY SIR MATTHEW HALE MORE THAN 300 YEARS AGO TO THE EFFECT THAT A HUSBAND CANNOT BE GUILTY OF RAPE BECAUSE BY THEIR MUTUAL MATRIMONIAL CONSENT THE WIFE CANNOT RETRACT PART OF THE IMPLICIT CONTRACT. HOWEVER, MARRIAGE IS NOT JUST A CONTRACT BETWEEN TWO PARTIES. THE STATE HAS ALWAYS HAD A CONTROLLING INTEREST IN ITS CREATION, TERMINATION, AND OBLIGATIONS WHICH ARISE UNDER IT. NEVERTHELESS, HALE'S STATEMENT OF THE LAW, ALTHOUGH QUALIFIED BY SUCH RECENT DECISIONS AS THE 1977 OREGON CASE OF 'RIDEOUT V. RIDEOUT,' REMAINS THE GUIDING PRINCIPLE: 'INTERCOURSE BY THE HUSBAND WITH THE WIFE BY FORCE AGAINST HER WILL IS NOT RAPE UNLESS HER IMPLIED 'CONSENT' HAS BEEN RETRACTED.' IN ESSENCE, THE PROBLEM IS NOT OF A LEGAL NATURE BUT IS ONE OF SOCIAL ATTITUDES TOWARDS THE EXPECTATIONS OF MALE AND FEMALE SEXUALITY. IT IS SUGGESTED THAT CERTAIN PRINCIPLES MUST BE ACCEPTED. FIRST, THE HUSBAND HAS NO RIGHT TO MARITAL INTERCOURSE BY VIRTUE OF ANY SPECIAL CONSENT IMPOSED UPON HIS WIFE BY REASON OF MARRIAGE. SECOND, IT SHOULD BE A LEGAL PRESUMPTION THAT CONSENT IS REQUIRED FOR EACH ACT OF INTERCOURSE. IN ENGLAND AND THE SOVIET UNION THESE PRINCIPLES ARE ALREADY ACCEPTED AND ARE REFLECTED BY EXISTING RAPE LAW. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)