Marital Rape

The marital rape exemption, traditionally under common law, sets forth that a husband who forcibly engaged in sexual intercourse against the will and without the consent of his wife was not socially or legally accountable for rape. This exemption derives from three main justifications: the property rationale, marital unity, and, most influential, the marriage contract and implied consent theories.

According to early Judeo–Christian tenets, rape was a legitimate means of acquiring wives, so marital rape was accepted and common. These early views of martial rape are rooted in a property rationale. Whether as fathers or husbands, men owned women as chattel. A wife’s sexuality and reproductive capacity were property interests of her husband, so no legal basis existed to prosecute a husband for raping his wife since he did not infringe on another’s property rights.

The marital ‘‘unities’’ doctrine underlies this property rights rationale. Under the ‘‘unities’’ doctrine, husband and wife became one person in law upon marriage. More precisely, a woman’s legal existence disappeared upon marriage or, more precisely, became incorporated into her husband’s existence, with the husband completely controlling their joint existence. Therefore, the ‘‘unities’’ doctrine justified and legitimized the rape exemption because a man could not rape his wife, just as he could not rape himself.

The most prevalent justification for the marital rape exemption derives from the treatise written by Lord Matthew Hale, the chief justice of England in the seventeenth century, which contemplates the notions of marriage as contract and, subsequently, a wife’s implied consent to sex with her husband at any time within the marriage. Hale’s theory has been the justification for marital rape for more than three hundred thirty years, and courts throughout the United States have cited his theory to justify upholding the martial rape exemption. According to Hale, ‘‘[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’’

Hale’s contract and consent theory for marital rape exemptions relied on marital status law. Marital status rules fixed marital rights and obligations automatically so that ‘‘opting-out’’ was not an option while the marriage existed. The fact that a husband or wife did not wish to abide by, or attempted to contract around, these default state rules was legally irrelevant. The only opportunity for actual agreement or, in this case, a woman’s consenting or not consenting to sex, was the initial decision to marry. However, this decision subjected wives and husbands to very different obligations and rights, giving the husband a right of sexual access to his wife and bestowing an obligation to submit by the wife.

The notion that marriage entailed the wife’s ‘‘irrevocable’’ or ‘‘implied’’ consent to sex once she made the decision to marry acknowledged the potential divergence between this decision and her actual state of mind at any point within the marriage. Therefore, according to Hale, a woman’s marriage triggered the enforcement of the legal presumption of consent to sex with her husband, an idea that formed the basis for the common law marital rape exemption.

Challenges to the marital rape exemption began in the late 1970s, when all state legislatures considered and most passed changes in their common law based rape statutes and when feminism gained footing as a movement. Many of the challenges to and reforms of rape law and, more specifically, marital rape laws were due to the advocacy of alliances formed among feminist groups, victims’ rights groups, and organizations promoting general justice.

Currently, twenty-six states, including the District of Columbia, have abolished the marital exemption for sexual offenses. These states’ statutes are silent as to the marital status between the victim and defendant in sexual offenses, which allows a state to criminalize marital and nonmarital sexual assault in equal ways, or are explicit, providing for prosecution of spouses or stating that marital status is not a defense. The remaining twenty-four states retain some form of the marital rape exemption. Although all have abolished the per se exemption under common law, many still make it more difficult to convict husbands of sexual offenses committed against their wives. The statutes, although varied, essentially have separate statutes for marital rape, implying different standards for marital rape and other rape, or include extra requirements for marital sexual offenses.

JANET HONG

References and Further Reading

• Anderson, Michelle J., Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates, Hastings Law Journal (2003): 1465–1557.
• Eskow, Lisa R., The Ultimate Weapon? Demythologizing Spousal Rape and Reconceptualizing Its Prosecution, Stanford Law Review 48 (1996): 677–709.
• Hale, Matthew. The History of the Pleas of the Crown, 1st American ed. Philadelphia: Robert H. Small, 1847.
• Hasday, Jill Elaine, Contest and Consent: A Legal History of Marital Rape, California Law Review 88 (2000): 1373–1505.
• Segal, Lalenya Weintraub, The Marital Rape Exemption: Evolution to Extinction, Cleveland State Law Review 43 (1995): 351–378.
• Sitton, Jane, Old Wine in New Bottles: The ‘‘Marital’’ Rape Allowance, North Carolina Law Review 72 (1993): 265.

Cases and Statutes Cited

• Commonwealth v. Fogerty 74 Mass. (8 Gray) 489 (1857)
• Frazier v. State, 86 S.W. 754, 755 (Tex.Crim.App. 1905)
• State of New Jersey in the Interest of M.T.S., 609 A.2d 1266, 1274-1275 (N.J. 1992)
• State v. Haines, 25 So. 372, 372 (La. 1899)

See also Domestic violence; Rape; Sex and Criminal Justice