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Marital Rape: A Crime? A Comparative Law Study of the Laws of the United States and the State of Israel

NCJ Number
International Journal of Comparative and Applied Criminal Justice Volume: 15 Issue: 1 and 2 Dated: (Spring/Fall 1991) Pages: 207-216
J J Gross
Date Published
10 pages
A comparison is made, on several levels, of the laws of various States in the United States and the State of Israel concerning the crime of rape as personally committed by a husband upon his wife, known as "marital rape."
Among the 50 States, there is a sharp division whether such an act is criminal at all. The majority of States have held the act not criminal based primarily upon the common law doctrine of marital immunity first enunciated in England by Lord Hale. Some of these States have followed the Model Penal Code and codified the immunity concept within their criminal law. Those States which have rejected Hale's immunity concept include New York, New Jersey, Alabama, and others. Upon judicial review, New York invalidated its statutory immunity for husbands by declaring it unconstitutional and a violation of the fourteenth amendment of the U.S. Constitution. New Jersey, as an example, statutorily eliminated the defense of marital immunity for rape, while other States simply rejected Hale's doctrine altogether. In 1980, Israel judicially rejected the defense of marital immunity insofar as a Jewish married couple was concerned by selectively utilizing Jewish religious law. It later enacted legislation eliminating the defense of marital immunity for rape for all persons regardless of religion. (Author abstract)


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