Origins of the Marital Rape Exemption

• Until recently, marriage to the victim was a complete defense to a charge of rape.
• Enshrined in English common law and adopted in the United States, the legal rationales for the complete marital rape exemption were:
  • Property theory: Wives are the property of their husbands and men can do with their property whatever they wish.
  • Unity theory: Under the doctrine of coverture the legal existence of a woman merges with that of her husband upon marriage. Thus, charging a man with raping his wife would be equivalent to charging him with raping himself.
  • Ongoing consent theory: Marriage signifies a woman's continuous consent to a sexual relationship with her husband. Therefore, a rape allegation must include proof that the victim was not the wife of the defendant.
• Many states' statutes still contain vestiges of the common law immunity that made marriage a complete defense to a charge of rape.

State Law Reforms

• Today all states have eliminated the complete marital rape exemption.
• However, 9 states continue to permit some degree of marital rape immunity, and some have extended immunity to cohabiting non-marital relationships.
• Immunity generally falls into two categories:
  • Lesser penalties for spousal rape.
  • Extra statutory requirements for marital sexual offenses, including: very short time requirements for reporting, divorced or separated status at the time of the assault, use of weapons during the assault. (11 states do not recognize spousal rape unless the offender uses weapons, force, violence, drugs, or threats of bodily harm).

Interspousal Tort Immunity

• Historically a married woman had no legal status independent of her husband and thus lacked standing to sue him for intentional tort should he injure her.
• Today, a majority of states allow the separation of tort claims from divorce proceedings, which helps lessen delays that could lead to injustice and hardships particularly for victims of domestic violence.