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But If You Can't Rape Your Wife, Who(m) Can You Rape? The Marital Rape Exemption Re-Examined

NCJ Number
Family Law Quarterly Volume: 15 Issue: 1 Dated: (Spring 1981) Pages: 1-29
M D A Freeman
Date Published
29 pages
The history of the common law rule of marital rape exemption is traced, and contemporary justifications of this rule are questioned, followed by a discussion of the modifications to the rule in the United States and Great Britain.
The common law rule of marital rape exemption is based in the cultural view that marriage makes a woman part of her husband's property, so that forced sexual intercourse is but a husband making use of his property. Further, the exemption views the woman's consent to marriage as consent to sexual intercourse throughout the marriage. Other arguments justifying the exemption include (1) the inappropriateness of using the criminal law in disputes between spouses; (2) the difficulty of proving marital rape; (3) the possibility of malicious prosecution by the wife; (4) the possibility that the wife, having accused her husband of rape, will change her mind and reconcile with the husband; and (5) the existence of alternative remedies of family law. None of these justifications for the exemption are sufficient to justify the continued protection of the husband from brutality and abuse in a sexual assault on his wife. Removal of the exemption would be a symbolic endorsement of the integrity and self-determination of women. Reform of the exemption has been slow and tentative in the United States. Only two States -- Oregon and New Jersey -- have abolished the marital exemption rule. The legal systems of most countries exempt the husband from prosecution for the rape of his wife. In Russia, Czechoslovakia, and Poland, however, husbands may be charged with marital rape. A total of 205 footnotes are provided.


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