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Spousal Rape

6 October, 2015 - 18:03

As stated previously, at early common law, a man could not rape his spouse. The policy supporting this exemption can be traced to a famous seventeenth-century jurist, Matthew Hale, who wrote, “[T]he 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” (Hale, History of Pleas of the Crown, p. 629). During the rape reforms of the 1970s, many states eliminated the marital or spousal rape exemption, in spite of the fact that the Model Penal Code does not recognize spousal rape. At least one court has held that the spousal rape exemption violates the equal protection clause of the Fourteenth Amendment because it discriminates against singlemen without a sufficient government interest.  1 In several states that criminalize spousal rape, the criminal act, criminal intent, attendant circumstance, causation, and harm elements are exactly the same as the elements of forcible rape.  2 Many states also grade spousal rape the same as forcible rape—as a serious felony.  3 Grading of sex offenses is discussed shortly.