AN EXAMINATION OF THE LEGAL PHILOSOPHIES OF MATHEW HALE REGARDING HUSBANDS' IMMUNITY FROM PROSECUTION FOR THE RAPE OF THEIR WIVES INDICATES THAT EARLY CASES OF SPOUSAL RAPE WERE RARELY SUBJECT TO JUDICIAL ANALYSIS. IF THE 19TH CENTURY JUDGES HAD CONFRONTED THE FACTS OF SEVERAL MODERN CASES, THE IMMUNITY FOR HUSBANDS MAY NEVER HAVE BECOME A PART OF THE LAW. THE NATURE OF THE SUBSEQUENT JUDICIAL PROCESS INHIBITED A REVERSAL OF THE INITIAL POLICY OF IMMUNITY DESPITE CHANGES IN THE STATUS OF WOMEN AND IN THE MORES OF SOCIETY WHICH THE LAW OF RAPE SHOULD REFLECT. PARADOXICALLY, THE PRECEDENT FOR THE RAPE-IN-MARRIAGE DOCTRINE IN ENGLISH AND AMERICAN LAW IS ATTRIBUTABLE TO THE CLARENCE CASE OF 1888, IN WHICH THE DEFENDANT WAS NOT CHARGED WITH RAPE BUT WITH ASSAULT. HOWEVER, JUDGES IN THE CASE MADE SEVERAL RANDOM COMMENTS WHICH REFERRED TO THE 'MARITAL PRIVILEGE' AGAINST RAPE PROSECUTIONS. THESE COMMENTS EFFECTIVELY EMBALMED THE ANCIENT DICTA ON THE SUBJECT OF MARITAL RAPE AND PREVENTED CHANGES IN LEGAL DOCTRINE. IN THE UNITED STATES, JUDGES HAVE BEEN MORE HOSPITABLE TO RADICAL CHANGES IN CASE LAW, INCLUDING THE REFUSAL BY CALIFORNIA JUDGES TO GIVE THE MANDATORY JURY INSTRUCTION REGARDING RAPE. LEGISLATORS HAVE ACTED WITH CAUTION IN THE REPEAL OF THE RAPE-IN-MARRIAGE DOCTRINE IN STATE LAW, BUT THE PROPOSED FEDERAL CRIMINAL CODE WOULD GRANT NO SPOUSAL IMMUNITY FOR HUSBANDS WHO RAPE THEIR WIVES WITHIN FEDERAL JURISDICTIONS. RAPE LAW, AS INDICATED BY THE AUSTRALIAN AMENDMENTS, SHOULD FOCUS ON THE CONSEQUENCES AND HARMS OF THE CRIMINAL ACT, AND NOT ON THE STATUS OF THE OFFENDER, EXCEPT WHEN SUCH STATUS AFFECTS THE FACTS. FOOTNOTES ARE PROVIDED. (TWK)