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 Marital Privacy and Spousal Rape t

Michael Gary Hilf *

© 1980 by Michael Gary Hilf

Until recently, the laws of most states did not encompass spousal
rape under statutory definitions of the crime. Now, the trend is to
allowfor rape prosecutionsregardlessof maritalstatus. In this Ar-
ticle, the author suggests that this trend be viewed in light of the
constitutional right to marital privacy. Balancing the interests of
marital privacy against the need to protect spouses from non-
consensual spousal intercourse, the author concludes that to allow
for some possibility of maritalreconciliation, maritalpartners, in
limited circumstances, should be provided some protection from
rape prosecutions.

In recent years, a number of states have amended their penal laws to

allow for rape prosecutions of persons who have engaged in non-
consensual sexual intercourse with their spouses.' As a result of these

t This article is adapted from a paper entitled Spousal Rape Laws: Constitutional Questions
and Policy Considerations which the author wrote while a third-year student at Harvard Law
School. The author gratefully acknowledges the assistance of David Westfall, the John H. Wat-
son, Jr., Professor of Law at Harvard Law School, who served as advisor to the author during the
writing of that paper.
* Assistant District Attorney, New York County, specially assigned to the Office of Prose-
cution, Special Narcotics Courts, City of New York; Member, New York and Federal Bars; A.B.,
Cornell University, 1976; J.D., Harvard University, 1979. The views contained in this article are
solely those of the author and do not necessarily reflect the views of the District Attorney of New
York County or the Special Narcotics Prosecutor.
1. The state statutes attempting to proscribe non-consensual sexual intercourse can be di-
vided into two broad categories: those that allow spousal rape prosecutions when the parties are
living apart and/or are divorced or separated, and those statutes which allow a prosecution for
spousal rape to go forward even if there is an ongoing marriage and the spouses are cohabitating.
Some typical examples of statutes that fall into the first category are: KY. REV. STAT. ANN. §
510.010(3) (Bobbs-Merrill 1975); LA. REV. STAT. ANN. § 14.41 (West Supp. 1980); Mo. ANN. STAT.
 NEW ENGLAND LA W REVIEW [Vol. 16:1

statutory amendments, at least one very famous criminal trial has oc-
curred: State v. Rideout, I in which John Rideout was acquitted of rap-
ing his wife Greta.
Elimination of the spousal immunity in rape cases has generated
some controversy. On the one hand, spousal rape may be viewed as an
abuse of the marriage relationship, with some protection being deemed
necessary for the abused spouse. Conversely, prosecuting a person for
the rape of his or her spouse exposes an intimate private relationship to
public scrutiny and may hinder whatever chance exists for a reconcilia-
tion of the spouses involved. This Article will trace the history of
spousal immunity and will examine the policies underlying the spousal
immunity doctrine. It will then address the possible constitutional
challenges to rape laws which do not provide for spousal immunity.
Finally, an argument will be made that considerations of marital
privacy dictate that some limited form of spousal immunity remain in
rape cases.

I. THE DEVELOPMENT OF SPOUSAL IMMUNITY

The origin of the spousal immunity is found in the oft-quoted
language of Lord Hale: "But the husband cannot be guilty of a rape
committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given up herself in this
kind unto her husband, which she cannot retract."' Lord Hale's state-
ment is the foundation upon which spousal immunity was judicially
recognized in the United States as early as 1857.'
Judicial recognition of the immunity spread.' But Lord Hale's
remarks are not the only, or even the best, explanation of the spousal
immunity in rape. Professor Perkins offers this analysis:

§ 566.010 (Vernon 1979); MONT. CODE ANN. § 45-5-506(2) (1979); S.C. CODE § 16-3-658 (Supp.
1979); UTAH CODE ANN. § 76-5-407(1) (1978); and WYO. STAT. § 6-4-307 (1977). In contrast, the
following states' statutes permit prosecution for spousal rape when the parties are still married:
ARK. STAT. ANN. § 41-1803 (Bobbs-Merrill 1977); DEL. CODE ANN. tit. 11, § 763-64 (1978); N.J.
STAT. ANN. § 2C, 14-5 (West 1980); and 1977 Or. Laws, c. 844 § I. See IOWA CODE § 709.2 (1979)
(no distinction between married and nonmarried individuals). Additionally, there are statutes that
fall between these two categories. For example, in Idaho, New Hampshire, and New Mexico, the
marital exception to rape will be denied so long as the parties live apart or one of the spouses has
filed for dissolution of the marriage: IDAHO CODE § 18-6107 (1979); N.H. REV. STAT. ANN. §
632-A:5 (Supp. 1977); and N.M. STAT. ANN. § 30-9-10(E) (1978).
New York's statute is unique. It gives the spouses themselves the power to establish criminal
liability in advance where the spouses are separated pursuant to a private agreement (as opposed to
a judicial order). N.Y. PENAL LAW § 130.00(4)(b)(iii) (McKinney 1975 & Supp. 1979).
2. No. 108,866 (Marion County Cir. Ct., Or., Dec. 27, 1978).
3. 1 M. HALE, PLEAS OF THE CROWN 628 (J. Doogherty ed. 1800).
4. See Commonwealth v. Fogerty, 74 Mass. (8 Gray) 489, 490 (1857); Note, The Marital
Rape Exemption, 52 N.Y.U. L. REV. 306, 307 (1977) (citation omitted).
5. The cases are collected in 75 C.J.S. Rape § 6 (1952 & Supp. 1978).
19801 MARITAL PRIVACY AND SPOUSAL RAPE

A man does not commit rape by having sexual intercourse with

his lawful wife, even if he does so by force and against her will. The
old rationalization for this result was that she gave a consent at the
time of marriage which she cannot revoke. This type of explanation
by means of "double talk" is definitely out of date, and was never
needed at this point. It is not necessary to pretend that the woman
consented, if the facts show very clearly otherwise, because the act
of intercourse is not rape, if it was by her lawful husband, for a
better reason. An essential part of the common-law definition of
rape is "unlawful carnal knowledge" and so forth, and this is an
implied part of every definition of the crime even if not expressed.
And the true reason why the husband, who has sexual intercourse
with his wife against her will, is not guilty of rape is that such inter-
course is not unlawful. The word "unlawful" is used with different
meanings. In this connection it is used in the sense of "not
authorized by law." Sexual intercourse between husband and wife
is sanctioned by law; all other sexual intercourse is unlawful
although the secret 6act of fornication is not punished, as such, in
many jurisdictions.
The modern rationale underlying spousal immunity can be traced
through a case involving spousal assault and battery. State v. Oliver,
was one of the first American cases to reject the English rule that a hus-
band had a right to beat his wife. In rejecting the English rule, however,
the North Carolina Supreme Court indicated that it would not open the
court's doors to every type of marital assault: "If no permanent injury
has been inflicted, nor malice, cruelty, nor dangerous violence shown
by the husband, it is better to draw the curtain, shut out the public gaze,
and leave the parties to forget and forgive." 8 The modern law of
spousal assault and battery seems to have been significantly shaped by
Oliver. Indeed, in 1971, a commentator summarizing the law of spousal
assault and battery in the United States noted, "it would appear that
the harm required is greater than simple assault but less than aggravated
assault. Cases indicate that visible bruises and injuries must be
present." 9 This state of affairs, in which the wife is granted "less pro-
tection than if that same violence had been inflicted on her by someone
[other than her husband],"'" has been criticized of late." Certainly,

6. R. PERKINS, CRIMINAL LAW 156 (2d ed. 1969) (emphasis in original) (footnotes omitted).
See also K. Cobb & N. Schauer, Michigan's Criminal Sexual Assault Law, in FORCIBLE RAPE 170,
183 (D. Chappel, R. Geis, and G. Geis eds. 1977) ("The common law definition of rape required
unlawful carnal knowledge. A husband could not be guilty of raping his wife, since the marital
relationship was sanctioned by the law.")
7. 70 N.C. 60 (1874).
8. Id.at 61-62.
9. Truninger, Marital Violence: The Legal Solutions, 23 HASrINGs L.J. 259, 263 (1971) (cita-
tion omitted).
10. Davidson, Wifebeating: A Recurring Phenomenon Throughout History, in BATrERED
WOMEN 2, 20 (M. Roy ed. 1977).
11. Id.One of the grounds for this criticism has been an alleged denial of equal protection
 NEW ENGLAND LA W REVIEW [Vol. 16:1

however, there is good sense in not permitting every marital scuffle to

become a case for the courts, and the considerations that support this
point of view also bear on the problem of non-consensual spousal inter-
course.
The Oliver court spoke of drawing the curtain. 2 To expand on this
analogy, two things occur simultaneously when the curtain is drawn:
the public stays out, and the spouses stay in. Both of these conse-
quences are important. First, it appears unseemly to permit the public
to examine the intimacies of a marital relationship. Allowing the public
this examination is to encourage a type of public voyeurism. 3 Second,
one or both of the spouses may feel embarrassed about having the
details of their private marital life exposed to the public view. Further-
more, it is questionable whether the complaining spouse alone has the
right to waive the marital privacy right of the couple by presenting the
matter before the courts and the public.
Aside from keeping the public out, drawing the curtain keeps the
spouses in. This requires the spouses to resolve their problems and dif-
ferences on their own." When two people are able, on their own, to
compromise differences and resolve problems, a greater mutual respect
and bond might be expected to result than if the couple had to resort to
the legal system for resolution. Allowing access to the criminal justice
system for every type of marital dispute will discourage resolution by
the spouses and will make their ultimate reconciliation more difficult.' 5

under the fourteenth amendment. An equal protection challenge to spousal rape immunity is
problematic. First, it may well be that spousal rape is an act, the very nature and quality of which
differs from, and is less serious than, ordinary rape. If this is the case, an equal protection
challenge might fail because it is not a violation of equal protection principles to proscribe one
type of conduct, while allowing another, less serious type of conduct, to remain unpunished. See
L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-1 (1978).
Moreover, unless it could be established that one had a fundamental right to be free from un-
wanted spousal sexual intercourse, the immunity could be sustained by the state. The state could
attempt to show that the immunity bears an at least rational relationship to the fostering of a
legitimate state interest, such as marital privacy. Id. at §§ 16-1, 16-2. A more thorough and incisive
analysis of this area is beyond the scope of this paper.
12. 70 N.C. 60, 61-62 (1874).
13. See Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.
1976), cert. denied, 429 U.S. 977 (1977). In Lovisi, the Federal District Court in Virginia was
mindful of protecting the intimacies of a marital relationship. The marital privacy rights of a cou-
ple to engage in consensual sodomous activity were found to have been waived because the couple
committed the acts in front of other persons. The value of marital privacy, noted the court, lies in
keeping marital intimacies from the gaze of the public. 363 F. Supp. at 625.
14. The "bilateral loyalty" that can develop between spouses, as emphasized by Justice
Douglas in Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965), is thereby promoted.
15. There are two possible problems that can arise when marital disputes become involved
with the legal system. First, knowledge by the spouses that the law can step in may pose im-
pediments to direct resolution of disagreements by the spouses. There is some indication that this
may have been a factor in the Rideout case. "A friend of the couple, David Lowe, testified that in
an argument the day before the reported rape, Mrs. Rideout threatened to charge her husband
under Oregon's newly revised rape law.... " N.Y. Times, Dec. 22, 1978, § A, at 18, col. 5. The
1980] MARITAL PRIVACY AND SPOUSAL RAPE

The argument that spousal rape prosecutions will impede marital

reconciliation has been criticized. In State v. Smith," the New Jersey
Superior Court held that "reconciliation hardly seems an expected or
likely consequence of a relationship that has deteriorated to the point of
forcible sexual advances by a husband."'" Obviously, the likelihood of
reconciliation after forcible sexual advances will depend upon the
nature of the relationship and the individuals concerned. In State v.
Rideout,'I8 the husband was acquitted of rape and the couple attempted
reconciliation.' 9 Had their private life not been exposed to public
scrutiny, perhaps the Rideouts could have saved their marriage. Un-
doubtedly, it was an inefficient use of judicial resources for the court to
get involved in this volatile relationship.

II. THE MARITAL PRIVACY RIGHT

Mr. Justice Harlan must be credited with laying the modern ground-
work for the constitutional right of marital privacy. In Poe v. Ullman"0
and in Griswold v. Connecticut,2' the right of the State of Connecticut
to prohibit the use of contraceptives was at issue. In Poe, the constitu-
tional issues were never decided, the appeal having been dismissed. 2" In
dissent, Justice Harlan argued that the constitutional issues should have
been reached, and he dealt with them in his dissent. He argued that a
right of marital privacy protected a married couple that desired to use
contraceptives:
Adultery, homosexuality and the like are sexual intimacies which
the State forbids altogether, but the intimacy of husband and wife
is necessarily an essential and accepted feature of the institution of
marriage, an institution which the State not only must allow, but
which always and in every age it has fostered and protected. It is
one thing when the State exerts its power either to forbid extra-
marital sexuality altogether, or to say who may marry, but it is
quite another when, having acknowledged a marriage and the in-
timacies inherent in it, it undertakes to regulate by means of the
criminal law the details of that intimacy.

second problem is that interspousal efforts at reconciliation may well be frustrated by a rape pros-
ecution. See Comment, Rape and Battery Between Husbandand Wife, 6 STAN. L. REV. 719, 725
(1954). See also note 64 infra.
16. 148 N.J. Super. 219, 372 A.2d 386 (Essex County Ct. 1977). See Comment, The Marital
Exception to Rape: Past, Present and Future, 1978 DET. C.L. REV. 261, 271; Note, The Marital
Rape Exemption, 52 N.Y.U. L. REV. 306, 315-16 (1977).
17. 148 N.J. Super. at 226, 372 A.2d at 389.
18. No. 108,666 (Marion County Cir. Ct., Or., Dec. 27, 1978).
19. But see N.Y. Times, Aug. 30, 1979, § B, at 4, col. 5 where it is noted that the Rideouts
were eventually divorced.
20. 367 U.S. 497 (1961).
21. 381 U.S. 479 (1965).
22. 367 U.S. 497, 509 (1961).
 NEW ENGLAND LA W REVIEW [Vol. 16:1

In sum, ... the intrusion of the whole machinery of the criminal

law into the very heart of marital privacy requiring husband and
wife to render account before a criminal tribunal of their uses of
that intimacy, is surely a very different thing indeed from punishing
those who establish intimacies which the law has always forbidden
and which can have no claim to social protection. 3
It is important to note that Justice Harlan was concerned not merely
with state interference in marital intimacy, but also with the spectacle
created by having the details of this intimacy recounted in public at a
trial. 2
Justice Harlan's Poe dissent apparently became accepted by a majori-
ty of the Supreme Court in Griswold." 5 There, the Court struck down
6
Connecticut's birth control law. In Griswold, a director of a Planned
Parenthood organization and one of the organization's physicians were
convicted of being accessories to the use of birth control articles. 7 They
appealed their convictions on the ground that the birth control law in-
fringed on the marital privacy rights of their clients. 8 The Supreme
Court agreed and overturned the convictions. 29 After noting that a
number of amendments to the Constitution had penumbras which pro-

23. Id. at 553 (Harlan, J., dissenting) (emphasis added).

24. Id. This concern of Justice Harlan's seems to have materialized in Rideout. Although the
trial lasted only one week, the press provided a detailed running account of the proceedings, il-
luminating most all of the Rideout's sexual encounters. For example, Jack Hinkle, John Rideout's
half-brother, "told the jury that during several months when the Rideouts lived in his [Hinkle's
home they 'played games' of chasing one another in and out of the bedroom before having sexual
intercourse." N.Y. Times, Dec. 23, 1978, at 10, col. 5. More explicitly, the New York Times pro-
vided the following summary when both of the Rideouts themselves testified:
'He beat me into submission. He forced me to have sex with him,' Mrs. Rideout
said . ..
Mrs. Rideout ... began her testimony by saying that she woke at 9 A.M. on the day of
the incident and did her household chores while her husband slept on the couch.
She said that he awoke in the afternoon and demanded that she have sex with him. She
refused, she testified, telling him she had to prepare to go to work at 4:30 P.M., and then
he began to chase her.

She said that after a chase and a fight in which he beat her and struck her in the jaw,
she submitted to him.
After his wife's testimony, John Rideout testified that he did not assault or rape her on
the date in question.
'She hit me first,' he said. He told the jury that the two of them had been arguing over
his behavior and that she kneed him in the groin, after which he struck her in the jaw.
Mr. Rideout said he apologized immediately after hitting his wife, saying, 'Greta, I'm
sorry. I didn't mean to do that.'
'She said it was all right,' he told the jury.
Mr. Rideout said that they then kissed and had sexual intercourse that 'was voluntary.'
N.Y. Times, Dec. 27, 1978, § A, at 16, col. 3.
25. 381 U.S. at 484-85.
26. Id. at 485.
27. Griswold v. Connecticut, 151 Conn. 544, 200 A.2d 479, rev'd, 381 U.S. 479 (1965).
28. 151 Conn. 544, 200 A.2d 479 (1964).
29. 381 U.S. at 485.
19801 MARITAL PRIVACY AND SPOUSAL RAPE

tected rights of privacy, 30 the Court enunciated a right of marital

privacy. Justice Douglas wrote:
Would we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage
relationship.
We deal with a right of privacy older than the Bill of Rights -
older than our political parties, older than our school system. Mar-
riage is a coming together for better or worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social proj-
ects. Yet it is an association for as noble a purpose as any involved
in our prior decisions."
In a concurring opinion, Justice Goldberg reinforced the marital
privacy notions articulated in the opinion of the Court:
The Connecticut statutes here involved deal with a particularly
important and sensitive area of privacy - that of the marital rela-
tion and the marital home ...

The entire fabric of the Constitution and the purposes that clear-
ly underlie its specific guarantees demonstrate that the rights to
marital privacy and to marry and raise a family are of similar order
and magnitude as the fundamental rights specifically protected.
Although the Constitution does not speak in so many words of
the right of privacy in marriage, I cannot believe that it offers these
fundamental rights no protection. The fact that no particular pro-
vision of the Constitution explicitly forbids the State from disrupt-
ing the traditional relation of the family - a relation as old and as
fundamental as our entire civilization - surely does not show that
the Government was meant to have the power to do so."
As might have been expected, the Griswold Court, which articulated a
right of marital privacy, did not take great pains to outline the scope of
that right.
After Griswold, questions still remained concerning the scope of the
marital privacy right: what acts were protected and did a right attach to
the couple or to an individual spouse. Some cases handed down after
Griswold suggested that marital privacy might be a mistaken concept,
and that personal, not marital, privacy was what the Constitution pro-
tected. Thus, in Eisenstadt v. Baird," a Massachusetts law which pro-
hibited the dispensing of contraceptives to unmarried people was struck

30. Id. at 483.

31. Id. at 485-86.
32. Id. at 495-96 (Goldberg, J., c6ncurring).
33. 405 U.S. 438 (1972).
 NEW ENGLAND LAW REVIEW [Vol. 16:1

down as unconstitutional. The Court, while noting "that in Griswold

the right of privacy in question inhered in the marital relationship," '
went on to point out that:
[T]he marital couple is not an independent entity with a mind and
heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup. If the right of privacy
means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear
or beget a child.35
The Baird emphasis on personal, as opposed to marital, privacy was
reinforced in Roe v. Wade.3 There, the right of a woman, whether
single or married, to terminate a pregnancy at certain stages was recog-
nized as protected by the right of privacy.3" Furthermore, in Planned
Parenthoodof Missouri v. Danforth,3" the Supreme Court ruled that a
state could not require the prior written consent of a husband before his
wife could obtain an abortion.3 9 The Danforth Court was not
altogether unmindful of marital privacy concerns. It found, however,
that it was "difficult to believe that the goal of fostering mutuality and
trust in a marriage, and of strengthening the marital relationship and
the marriage institution, will be achieved by giving the husband a veto
power exercisable for any reason whatsoever or for no reason at all." '
At this point, an argument might be made based on the Baird-Roe-
Danforth line of cases. It might be argued that these cases support a
woman's right to control the use of her sexual organs and that this right
would outweigh any marital privacy rights. However, the thrust of the
Baird, Roe, and Danforth cases is that the decision to bear or not to
bear a child is so personal that neither state nor spouse may interfere
with that decision. This is so because of the great physical imposition
that bearing a child imposes on a woman. "Maternity, or additional
offspring, may force upon the woman a distressful life and future. Psy-
chological harm may be imminent. Mental and physical health may be
taxed by child care."' In a criminal case based upon marital rape, the
burden of maternity is not in issue. Therefore, the policy regarding
marital privacy must reflect the interests of both spouses.
Though the Baird-Roe-Danforthline of cases may have weakened the

34. Id. at 453.

35. Id.
36. 410 U.S. 113 (1973).
37. Id. at 154.
38. 428 U.S. 52 (1976).
39. Id. at 74.
40. Id. at 71.
41. Roe v. Wade, 410 U.S. 113, 153 (1973).
19801 MARITAL PRIVACY AND SPOUSAL RAPE

notion of a distinct concept of marital privacy, other post-Griswold

cases have maintained a special place for marital privacy. In cases in-
volving consensual sodomy a distinction has been drawn based upon
marital privacy. In Doe v. Commonwealth's Attorney," male homo-
sexuals challenged Virginia's sodomy law on privacy grounds. A three-
judge court rejected the challenge.' 3 It noted that the precedents
rest exclusively on the precept that the Constitution condemns State
legislation that trespasses upon the privacy of the incidents of mar-
riage, upon the sanctity of the home, or upon the nurture of family
life. This and only this concern has been the justification for
nullification of State regulation in this area."
In Cotner v. Henry,'5 Charles Cotner, who had pled guilty to a
charge of sodomizing his wife,' 6 petitioned for federal habeus corpus
relief and attempted to have the plea vacated on the grounds that it was
not made with a full understanding of the charge. 4 ' The Seventh Circuit
Court of Appeals reversed the district court's denial of the habeas cor-
pus petition." In so doing, it had occasion to discuss the scope of
marital privacy. "The import of the Griswold decision is that private,
consensual, marital relations are protected from regulation by the state
through the use of a criminal penalty." 4 9 Mrs. Cotner's affidavit, which
charged her husband with committing sodomy upon her, "contained no
charge that he used force. He was prosecuted under a statute which pro-
hibits sodomy but which does not explicitly mention force and which no
Indiana court has construed as requiring force when applied to married
couples in the privacy of the bedroom.""0 The appellate court held that
in light of Griswold, Indiana could not make consensual spousal
sodomy a crime, but could make non-consensual spousal sodomy a
crime."1 Thus, in Cotner, the conviction was overturned by the court

42. 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, rehearing denied 425 U.S. 985
(1976).
43. 403 F. Supp. at 1200.
44. Id.
45. 394 F.2d 873 (7th Cir. 1967), cert. denied, 393 U.S. 847 (1968).
46. 394 F.2d at 874.
47. Id. at 876.
48. 394 F.2d 873 (7th Cir. 1967).
49. Id. at 875 (citation omitted) (emphasis added).
50. Id. at 876.
51. Id. at 875-76. Most state courts appear to be in agreement that forbidding consensual
spousal sodomy is unconstitutional. See, e.g., State v. Lair, 62 N.J. 388, 301 A.2d 748 (1973) (New
Jersey Supreme Court held that the state's sodomy statutes did not apply to the consensual,
private acts of a married couple).
In contrast, laws proscribing non-consensual spousal sodomy have been regularly upheld. Il-
lustrative of this point is the holding of the court in Towler v. Peyton, 303 F. Supp. 581 (W. D. Va.
1969), wherein it was stated:
The grand jury indictment charged petitioner with forcing the act of sodomy on his
wife. From a reading of the trial record, the court finds facts from which the judge
hearing the case without a jury could infer the use of force. Because the petitioner
 NEW ENGLAND LA W REVIEW [Vol. 16:1

based upon marital privacy; while in Doe, consensual sodomy was a

criminal act and no individual privacy right was recognized. These cases
illustrate the continued vitality of marital privacy as a constitutional
doctrine.

III. THE NATURE OF THE ACT

In the normal case, when parties marry, there is an expectation on

both sides that sexual intercourse will occur. The state has always al-
lowed this type of intercourse, and indeed, this was the only type of in-
tercourse allowed by many states for a long time. 2 A spouse who, on a
particular occasion, refuses to engage in sexual intercourse will usually
not be objecting to the practice of sexual intercourse, but will rather be
objecting to engaging in the practice on a particular instance. A spouse
who objects to engaging in a particular act of sodomy may well be
revolted by the practice. The objection may be not to engaging in the
sodomitic practice just on this particular occasion, but to engaging in it
at all. As the Court in State v. Bateman53 pointed out, "[slodomy has
been considered wrong since early times in our civilization," 5" No such
condemnation has been found for sexual intercourse between husband
and wife. Thus one might expect that the psychic harm suffered by a
spouse forced to engage in sodomitic behavior would be more pro-
nounced than that suffered by a spouse forced to engage in sexual inter-
course. Therefore, cases upholding laws forbidding non-consensual
spousal sodomy should not necessarily control cases involving non-
consensual spousal sexual intercourse.
A further distinction can be made between spousal rape and non-
spousal rape. Modern writers on the subject of rape agree that the
essential evil is not the genital contact:
Rape is an abomination not because it is an assault on innocence,
but because it is an assault on freedom. The gravity of rape is not in
the injury to the hymen or the vagina, it is in the injury to auton-
omy, to self-esteem. The physical batterings which accompany the
rape are not the rape. They are injuries added to insult, battle scars
which may be borne triumphantly because they are proof of the in-
sult. "

was tried and convicted of forcing this act of sodomy on his wife, the court finds the
Virginia Sodomy Statute not to be unconstitutional as applied to the facts of this
case.
Id. at 582-83. See also State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976) (Arizona statute pro-
hibiting non-consensual sexual conduct was held constitutional).
52. See note 6 and accompanying text supra. Cf. K. Cobb & N. Schauer, Michigan's
Criminal Sexual Assault Law, in FORCIBLE RAPE 170, 183 (D. Chappel. R. Geis, and G. Geis eds.
1977).
53. 113 Ariz. 107, 547 P.2d 6 (1976).
54. Id. at 111, 547 P.2d at 10 (citations omitted).
55. B. TONER, THE FACrS OF RAPE 198 (1977).
1980l MARITAL PRIVACY AND SPOUSAL RAPE

Similarly, "[a] sexual assault is an invasion of bodily integrity and a

violation of freedom and self-determination wherever it happens to take
place, in or out of the marriage bed." 56 The great harm of rape seems to
be the psychological harm. Rape is domination, an interference with
free will and personal autonomy. However, the nature of spousal rape
differs from non-spousal rape:
Forcible rape is a criminal category created to protect females
from unwanted sexual intercourse. Its classical type is the ambush
of a lone woman by one or more strangers in a deserted place at
night. In this form it always carries with it a grave risk of very
serious physical and mental harm .... Forcible rape has been com-
mon enough and dangerous enough in its consequences to require a
strong deterrent penalty. Because in its classical form it is the ex-
pression of an unprovoked, unpredictable, and highly brutal im-
pulse, it calls forth fear and vengeance ...
In the ordinary marriage relationship the classical form of forci-
ble rape is not probable. Presumably the parties have at times been
very intimate, and the possibilities of serious social, physical or
mental harm from a familiar, if unwanted, conjugal embrace are
rather small. 7
While an act of non-consensual sexual intercourse is an interference
with personal autonomy, a married person's general expectation of
autonomy is less than a single person's expectation. Professor Henkin,
not long ago, likened the constitutional right of privacy to a right of
autonomy." It follows that the right of marital privacy may be likened
to a right of marital autonomy. A problem arises when one tries to
reconcile marital autonomy with the personal autonomy of each
spouse. It is obvious that some personal autonomy is sacrificed when
one enters into a marital relation in order to allow for some degree of
marital autonomy. A woman who marries does not consent to all acts
of sexual intercourse with her husband as Lord Hale would have us
believe. 9 However, a married person has, to some extent, a lesser ex-
pectation of personal autonomy; therefore, the affront to one's
autonomy is less in the case of spousal rape than in the case of ordinary
rape. Moreover, the harm caused by spousal rape would seem to be less
severe than the harm caused by non-spousal rape. While a married per-
son's interest in bodily integrity is not inconsiderable, a balance must be
struck between the individual's interest in private autonomy and the
public policy favoring spousal immunity.

56. S. BROWNMILLER, AGAINSTOUR WILL 381 (Bantam ed. 1976).

57. Comment, Rape and Battery Between Husband and Wife, 6 STAN. L. REV. 719, 723-24
(1954). See generally Truninger, Marital Violence: The Legal Solutions, 23 HASTINGS L.J. 259
(1971).
58. Henkin, Privacy and Autonomy, 74 COLUM. L. REV. 1410 (1974).
59. See note 3 and accompanying text supra.
 NEW ENGLAND LAW REVIEW [Vol. 16:1

One fears that spousal rape laws may have a significant effect upon
reconciliation. These laws may exacerbate existing marital problems by
providing another level of escalation for marital disputes with a con-
commitant danger of false accusations. While the New Jersey Superior
Court in State v. Smith 60 argued that the danger of false accusations by
a spouse should not be taken seriously because "[c]harges of assault
and battery, larceny, fraud and other offenses may just as readily be the
subject of such false accusation between spouses," 6 this position has
already been criticized on a number of grounds. 62 The obvious charge is
that: "The courts' allowance of one charge capable of fabrication is
not, of itself, an argument for allowing other charges capable of
fabrication." '6 3 Another objection to the court's position is that some
charges are more easily fabricated than others. 6 To prove assault and
battery by a spouse, for instance, some visible evidence is generally re-
quired.6S
Another factor supporting rape immunity is the absence of any com-
pelling need for prosecuting cohabiting spouses. Proceedings for
separation or divorce can be instituted soon after a single non-
consensual encounter. 66 Furthermore, serious cases of physical abuse
will be taken care of by spousal assault and battery laws. Although one
recent commentator admits that "the most outrageous cases [of spousal
rape] can be 'dealt with' by the law,"6 7 he argues that this is insuffi-
cient: "[The law] provides remedies but should also seek to provide the
appropriateremedy. The label attached to the conduct should be the
appropriate label. So long as rape remains a separate crime, not simply
one form of assault, conduct which is, in reality, rape, should be so
charged. '6 81 Admittedly, it is aesthetically pleasing for labels to be ap-
propriate, but when there are significant countervailing marital privacy
considerations,
69
the formal symmetry between wrong and remedy is not
paramount.

60. 148 N.J. Super. 219, 372 A.2d 386 (Essex County Ct. 1977).
61. Id. at 225-26, 372 A.2d at 389.
62. Recent Case, Husband Cannot Be Guilty Of Raping His Wife: State v. Smith, 82 DICK.
L. REV. 608 (1978).
63. Id.
64. Indeed, there is some evidence that Greta Rideout contemplated making a false accusa-
tion. See N.Y. Times, Dec. 22, 1978, § A, at 18, col. 5.
65. An analysis of the "[clases indicate[s] that visible bruises and injuries must be present."
Truninger, Marital Violence: The Legal Solutions, 23 HASTINGS L.J. 259, 263 (1971) (citation
omitted). For a discussion of assault and battery and its relation to spousal immunity, see notes
7-15 and accompanying text supra.
66. Notwithstanding this separation and/or divorce remedy, it has been propounded that a
wife may desire more comfort and retribution than separation or divorce can provide. State v.
Smith, 148 N.J. Super., 219, 227, 372 A.2d 386, 390 (Essex County Ct. 1977).
67. English, The Husband Who Rapes His Wife, 126 NEW L.J. 1223, 1225 (1976).
68. Id. (emphasis in original).
69. Lest it be misunderstood by omission, it is not being advocated that marital privacy con-
siderations should impede a legislature's ability to criminalize sexual attacks by a divorced or
19801 MARITAL PRIVACY AND SPOUSAL RAPE

Rape statutes which treat a cohabiting spouse like a stranger may

have unintended consequences. 7 ° One writer has suggested, "[c]onsent
is better arrived at by husband and wife afresh each time . . . . "" This
is an unwise suggestion. For one thing, it has been held, quite sensibly,
that one who engages in sexual intercourse with an unconscious woman
is guilty of rape, because the sexual act is deemed to be without the
woman's consent."2 Similarly, "[w]here a female is intoxicated to the
extent of being unable to resist, the [sexual] act is without her consent
and is rape .. .. " Do we quite seriously want to subject to criminal
liability a husband who begins to engage in sexual contact with his
sleeping or intoxicated wife? To ask the question is to answer it.
Another problem may occur when one spouse wrongly believes, in
good faith, that his partner wants to engage in sexual activity. This may
result from the very nature of their marital relationship. Married people
often act in a more familiar and less formal manner with each other
than they act with other people. This may, on occasion, make it dif-
ficult to know a spouse's true feelings. This must be recognized by
legislatures which are considering passage of spousal rape laws. As one
writer has already noted: "[A] seeming lack of consent may be simply a
manifestation of the fact that resistance during preliminary love-
making greatly increases the sexual pleasure of some women.""' The
danger of a spouse not being able to differentiate seeming lack of con-
sent from actual lack of consent suggests that there are serious dif-
ficulties in attempting to criminalize non-consensual sexual conduct
between cohabiting spouses.

CONCLUSION

Statutes which provide for spousal immunity in simple rape cases are
not denials of the equal protection of law." Non-consensual sexual in-
tercourse between spouses is an act whose nature and quality make it
distinct from the ordinary case of rape. Moreover, there does not ap-
pear to be any fundamental right to be free from unwanted sexual inter-
course with one's spouse. 6
Additionally, providing a party with im-

separated spouse. In those situations it is difficult to find much of a marital relationship that re-
quires or deserves privacy rights. This is obvious where a divorce has already been granted, and
also true where the parties have been living apart for any substantial length of time. If the parties
have lived apart for quite awhile, this is usually evidence of a serious marital breakdown, and not
just a transient disagreement.
70. See note I supra.
71. S. BROWNMILLER, AGAINST OUR WILL 381 (Bantam ed. 1976).
72. See State v. Stroud, 362 Mo. 124, 240 S.W.2d 111 (1951); State v. Welch, 191 Mo. 179, 89
S.W. 945 (1905); In re Childers, 310 P.2d 776 (Okla. 1957).
73. 75 C.J.S. Rape § 14, at 480 (1952).
74. Comment, Rape and Battery Between Husband and Wife, 6 STAN. L. REV. 719, 728
(1954).
75. For a brief discussion of equal protection considerations, see note II supra.
76. See note II supra.
 NEW ENGLAND LA W REVIEW [Vol. 16:1

munity in cases of simple spousal rape can be justified by the state's in-
terest in respecting marital privacy and encouraging married people to
resolve their problems on their own.
Statutes which provide no spousal immunity in cases of simple rape
of a cohabiting spouse may well run afoul of a constitutional right of
marital privacy. In any event, such laws are unwise for a number of
other reasons.
To be sure, those states which still provide spousal immunity in sim-
ple rape cases until a divorce is granted provide insufficient protection
to married people. Spousal immunity should terminate when a divorce
or separation action is filed, or after the couple has been living separate
and apart for a certain period of time. 77 Providing spousal immunity
after an obvious breakdown of a marriage protects no important in-
terests and serves no useful purpose. But doing away completely with
spousal immunity seriously impinges upon marital privacy rights, and
may make impossible marital reconciliations that might otherwise
occur.

77. Idaho has a 180 day requirement. Idaho Code § 18-6107 (1979). This is probably too long
as one can infer a serious marital breakdown whed the spouses have been living apart for a shorter
period of time. Some minimum time period, perhaps thirty days, should be required, lest the law
interfere with minor, transitory, marital disagreements.