Academic journal article American Criminal Law Review

A Striking Disconnect: Marital Rape Law's Failure to Keep Up with Domestic Violence Law

Academic journal article American Criminal Law Review

A Striking Disconnect: Marital Rape Law's Failure to Keep Up with Domestic Violence Law

Article excerpt


Until the late twentieth century, a husband could compel his wife to have sex with him without fear of consequence. Although the criminal justice system could punish a man who forced a woman to have nonconsensual sexual intercourse, marriage served as an absolute defense to rape, and a marital rape exemption existed in the statutory laws of every state. The common law also recognized the existence of a marital rape exemption, and, in order to bring a recognized charge of rape, a woman had to allege that she was not the wife of the defendant. (1) Regardless of how brutal or evil the spousal rape, courts did not consider it a crime. (2)

Beginning in 1976, states began to dissolve their marital rape exemptions, and by 1993, spousal rape, just like nonmarital rape, was a crime in all fifty states and the District of Columbia. (3) State legislatures and courts came to understand that the marital rape exemption was "employed to justify the subjugation of women in English and American law and society during the past," but that there was no room for such a doctrine in modern American law and society. (4) They finally recognized that married women should have the same right to control their bodies as unmarried women and, therefore, that the various justifications (5) previously used to uphold the marital rape exemption should no longer hold any weight.

Although every state legislature has formally abolished its marital rape exemption, reminders of the exemption still remain in the statutory law of several states. (6) These additional hurdles are found in decreased sentences for the accused, proof of force and/or resistance, and shorter time frames by which a woman has to report a rape by her husband, ultimately making spousal rape more difficult to prosecute. (7) Even in states that do not have these increased requirements, successful prosecution of marital rape cases is still extremely difficult.

Domestic violence law, on the other hand, has seen huge advances over the past few decades. Of particular importance are the mandatory arrest and no-drop prosecution laws that legislatures in every state have enacted to increase police response and decrease batterer relapse. (8) Although these laws are criticized, (9) it is significant that legislatures have implemented policies that seek to decrease spousal battery and alert society to the harms of domestic violence. Unquestionably, domestic violence law has its own problems and differs from marital rape. (10) However, the progress that society, state legislatures, and the judicial system have made regarding domestic violence should serve as a model for marital rape law. This Note will argue that to advance marital rape law to the same level as domestic violence law, two crucial changes must occur: first, those states whose statutes do not treat marital rape and nonmarital rape exactly the same must enact statutes that do not distinguish between the two crimes; and second, legislatures must institute policies aimed at the more effective prosecution of marital rape.

Part I of this Note provides an overview of domestic violence law, and, in particular, mandatory arrest laws and no-drop prosecution policies now common to all state codes. Part II introduces marital rape in the context of domestic violence, discussing how, and if, marital rape fits into a spousal physical abuse framework. Part III explores the traditional and more modern justifications of the marital rape exemption. Part IV discusses the formal abolishment of the marital rape exemption, both by state legislatures and by the courts of various jurisdictions. Part V asserts that despite the development in marital rape law and the formal abolishment of the marital rape exemption in all states by 1993, several state statutes still contain remnants of the marital rape exemption, and prosecution continues to remain extremely difficult. Lastly, Part VI argues that to ensure marital rape law's progress, those states without "ideal" statutes must eliminate any requirements for marital rape that do not exist in the nonmarital rape context, and legislatures must implement policies with respect to prosecuting spousal rape so that prosecutors, courts, and juries cannot evade the issue. …

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