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Spousal Rape - The Uncommon Law

NCJ Number
American Bar Association Journal Volume: 66 Dated: (September 1980) Pages: 1088-1091
S Barry
Date Published
4 pages
The origin, legal history, and present status of spousal rape as shown in current legislation in 44 States is examined, and some obstacles to changing present laws are discussed.
The article describes and analyzes the contractual consent theory which originated in the 17th century with Sir Matthew Hale and which states that a husband cannot be guilty of a rape committed upon his lawful wife because of their mutual matrimonial consent and contract. The article presents a critique of the contractual consent theory and cites a number of cases relating to spousal rape. The range of State legislation is also discussed including legislation in five States that allows prosecution of a husband for rape under various circumstances. The article notes that, according to one study, about 400,000 women are raped by their husbands each year. Opposition to establishing laws that would make it possible for a woman to prosecute her husband for rape vary from personal disdain to the theory that it would be harmful to the institution of marriage and might encourage vengeful actions from wives. It is concluded that the evolution of woman's status is forcing the legal system to rethink many of its policies, that no justification exists to allow a man to use force to invade his wife's bodily privacy, and that the law must now embody that conclusion.