Abolishing the Marital Rape Exemption
Florida Atlantic University
Public Policy and Non-Profit Organizations
“But if you can’t rape your wife, who can you rape?”
Senator Bob Wilson, Democrat, California, 1979.
Rape committed in the United States is considered a felony. The perpetrator can be prosecuted and imprisoned for a maximum of forty years in prison. This only stands true if the man has “sexual intercourse with a woman, not his wife, by force and against her will” (Finkelhor & Yllo 1). The reasoning behind this is based upon an English common law created by Lord Matthew Hale, Chief Justice of England in the seventeenth century, who interpreted the law for married women to protect their husbands (Richards 58). Before the mid-twentieth century, the concept of a husband having forcible sex with his wife was not considered a crime. “Men in the most appropriate relationship of all, marriage, have enjoyed an absolute right” (Eskow 681).
Although marital rape is a crime in all 50 states, prosecution of marital rape cases are extremely rare. Marital rape prosecution must generally require an excessive degree of force in the attack versus coercion since the unity of marriage suggests an implicit consent to sex. In most cases, excessive degree of force alone is not enough to charge a husband with rape. A wife must also have to prove that she has revoked her implicit consent “with a legal separation, a decree nisi, or an injunction, and in cases of violent compulsion” (Fus 488). Marital rape is a crime that is perceived to be a less serious offense than its counterpart – stranger rape – because of the history of women as chattel, the reluctance to break up private, domestic affairs protected by the Fourteenth Amendment, and the fear by men of fabricated claims by women.
Most courts treat marital rape as a lesser crime than stranger rape, and therefore, its perpetrator receive lower sentences. This is in effect an implicit marital...