§ 33.06 MARITAL IMMUNITY RULE

• Jurisdiction: United States

§ 33.06. Marital Immunity Rule¹⁴¹

[A] The Immunity and Its Rationales

[1] Rule

In 1736, Sir Matthew Hale stated that a "husband cannot be guilty of rape committed by himself upon his lawful wife."¹⁴² He cited no authority for this proposition as, indeed, there was none.¹⁴³ Nonetheless, the so-called marital immunity rule became a part of Anglo-American common law, and was adopted by most American legislatures as part of the original definition of rape.

[2] Rationales

[a] Consent/Property Rationale

According to Hale, "by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."¹⁴⁴ However, the concept of irrevocable consent by the wife makes no sense today, if it ever did. At most, the general understanding of marital partners today is that each person consents generally to have sexual intercourse with the other, subject to the right of either person to refuse on any specific occasion. Moreover, if a husband uses force to secure intercourse with his wife, he is subject to prosecution for assault or battery; the principle of consent does not carry over to these offenses, so there is no reason consent should be assumed in the rape context.

The more accurate explanation of the common law marital immunity rule is that the wife was the virtual property of the husband.¹⁴⁵ She was "incorporated and consolidated into that of the husband."¹⁴⁶ Therefore, the husband possessed an unlimited right of sexual access to her. As this archaic reasoning is just that—archaic — it cannot sustain the marital immunity rule today.

[b] Protection of the Marriage

Defenders of the marital immunity rule sometimes argue that it is needed to protect "against governmental intrusion into marital privacy," and to promote "reconciliation of the spouses."¹⁴⁷

This argument vastly overstates the case for the immunity. If a husband's use of force to have intercourse with his wife is an isolated act in an otherwise salvageable marriage, it is unlikely that the wife would seek a rape prosecution of her husband. On the other hand, if the husband is guilty of ongoing physical or sexual abuse, the marriage presumably is not salvageable; at the least, it should be the abuse victim's decision whether to try to preserve the marriage or, instead, seek prosecution. Beyond this, the interest in protecting the safety of the woman certainly outweighs the privacy concern.

[c] Protection of the Husband in Divorce Proceedings

Some advocates...