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

By Klarfeld, Jessica | American Criminal Law Review, Fall 2011 | Go to article overview

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


Klarfeld, Jessica, American Criminal Law Review


INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.