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To Have and To Hold: The Marital Rape Exemption and the Fourteenth Amendment

NCJ Number
108745
Journal
Harvard Law Review Volume: 99 Issue: 6 Dated: (April 1986) Pages: 1255-1273
Date Published
1986
Length
19 pages
Annotation
The marital rape exemption has its basis in common law, which held that the marital contract implied consent to sexual relations, in the notion of wives as property of their husbands, and in notions of the proper role and nature of women in the home.
Abstract
Although women's legal and social status has changed, only 10 States permit prosecution for marital rape under all circumstances. Other States permit prosecution only when the parties were separated by court order or living apart or in the process of divorcing. Three States permit prosecution only if a final divorce decree existed at the time of the incident. Two arguments are available to challenge the constitutionality of such exemptions: the exemption impermissibly infringes upon the privacy rights of married women, and it infringes upon the privacy rights of all women. While such arguments may prove powerful in court, they are limited by their conceptual framework of abstract individual rights. Because of this, the rights-based approach fails to acknowledge that marital rape is a broader problem of women's subordination. It is argued that the adverse effects on the victim and the legislative history of the exemption reveal a discriminatory intent that renders it unconstitutional. Taken together, rights analysis and gender-discrimination law provide a means for broadening the legal perspective so as to incorporate women's experience. 114 footnotes.