Criminalizing marital rape: a comparison of judicial and legislative approaches.

• Author: Fus, Theresa

ABSTRACT

Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and legislative abolition of marital exemption, respectively. The Author explores several factors that would lead to effective change, including timely alignment with societal morals, thorough and thoughtful consideration of the issues, and legitimacy in the eyes of citizens. After reviewing the effectiveness of approaches such as those employed in England and Canada, the Author argues that an even better method would rely on equal protection provisions found in state constitutions and international treaties.

TABLE OF CONTENTS I. INTRODUCTION II. ENGLAND: A MODEL OF THE JUDICIAL APPROACH A. Chipping Away at Common Law: The Path Leading to Abolition of Marital Immunity B. Public Response to Judicial Criminalization of Marital Rape III. CANADA: A MODEL OF THE LEGISLATIVE APPROACH A. Feminist Activism and Parliamentary Notice of a Problem Leading to a Change in Marital Rape Law B. Reactions to the Passage of Bill C-127 IV. SHORTCOMINGS AND SUCCESSES: THOROUGH AND TIMELY REVIEW VERSUS LEGITIMACY A. The Judicial Approach 1. Advantages: Holistic Review of an Historical Concept 2. Disadvantages: Legitimacy, Retrospectivity, and Case Dependency B. The Legislative Method 1. Advantages: Legitimacy and Prosecutorial Independence 2. Disadvantages: Legislative Delay and Abstract Review V. PROPOSED SOLUTION: EQUAL PROTECTION CLAUSES AS A TOOL FOR CRIMINALIZING MARITAL RAPE VI. CONCLUSION I. INTRODUCTION

For centuries, husbands around the world have been granted marital exemption (1) to the crime of rape. It was not until the last half of the twentieth century that marital rape was even recognized as a legal problem. (2) Prior to that time, most believed that it was impossible for a husband to rape his wife. (3) This conclusion was justified under three separate theories: the implied consent theory, the unities of person theory, and the property theory. (4)

The most common theory behind the impossibility of marital rape is the implied consent theory, which is structured around contract law. (5) Stated succinctly by Sir Matthew Hale in the seventeenth century, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract." (6) Hale believed that "matrimonial consent" was irrevocable. (7) Variations on Hale's strict irrevocability principle allow for a wife to revoke her implied sexual consent only in times when "ordinary relations" in the marriage are suspended. (8) For example, a woman can revoke her implied consent when she and her husband are separated. (9) Until recently, this view was widely accepted. (10)

The unity of person theory, on the other hand, does not even recognize the wife as a separate being capable of being raped. (11) This theory stems from the belief that when two people marry, they become one. (12) The being of the woman is incorporated into that of the husband such that the existence of the woman is effectively suspended during marriage. (13) Marital rape is thus impossible because a husband is not capable of raping himself. (14)

From unity of person theory, it is not a far reach to the property theory. Under property theory, by marriage a woman becomes the property or chattel of her husband. (15) The goal behind this theory is to "inspire and perpetuate marital harmony." (16) Under this view, sexual intercourse can never be rape because the husband is merely "making appropriate use of his property." (17)

In addition to these three main rationales, there are many secondary reasons for the perpetuation of marital exemption, (18) the first of which is evidentiary difficulty. (19) When a couple is married and regularly engages in sexual activity, it can be quite difficult to prove that one particular instance out of many was without consent. (20) Another concern is a vengeful wife that claims rape to blackmail her innocent husband to get a more favorable divorce settlement. (21) A third argument holds that permitting allegations of rape would cause unrest and discord in the marriage and prevent reconciliation. (22) Finally, recognizing crimes within the marriage would allow for state intrusion into the privacy of marriage, which is largely disfavored. (23) While there are undoubtedly other rationales for marital exemption, these several are the most prominent and most frequently referenced.

Together these theories created a belief that marital exemption was an appropriate legal doctrine. (24) As late as the mid-twentieth century, there was no country that viewed a husband's having forcible sex with his wife as a crime. (25) Over time, the movement for equal rights of women extended into criminal law, and marital exemption faded away in many countries around the world. While the majority of countries still have marital exemption on the books in some form or another, (26) dozens of leading nations have completely eliminated the exemption. (27) Of these latter countries, it has primarily been the judiciary that has made the change, with the legislature following behind at a later point, if at all. (28) In a few countries, however, it has been the legislature that made the change and the judiciary was forced to follow. (29)

This Note explores the judicial and legislative methods of eliminating marital exemption and the successes and failures of each. Part II traces England's elimination of marital exemption, which will serve as a model of the judicial method. Part III then examines the legal reformation of marital rape in Canada, which serves as a model of the legislative approach. Part IV discusses the strengths and weaknesses of each of the two approaches using the English and Canadian systems as models. Finally, Part V proposes a model for future criminalization of marital rape in other countries around the globe.

2. ENGLAND: A MODEL OF THE JUDICIAL APPROACH

   A. Chipping Away at Common Law: The Path Leading to Abolition of Marital Immunity

   When Sir Matthew Hale made his now infamous assertion that a man cannot rape his wife, he did so without citing any supporting authority. (30) Despite this legal deficiency, his contention became the common law of England. (31) In 1889, Justice Field, in a dissenting opinion, brought the deficiency to light and stated that he believed there were cases in which a wife could refuse intercourse and in which a husband could be guilty of rape. (32) Justice Field's commentary went unnoticed and marital exemption carried on, unmodified, for over 150 more years.

   The assault on marital immunity began with the case of R. v. Clarke. (33) After being married for eleven years, the wife obtained a judicial separation order which contained a clause stating that she was no longer bound to live with her husband. (34) Within two weeks of obtaining the separation order, the wife was allegedly raped by her husband. (35) Justice Byrne, the presiding judge, recognized that a husband cannot generally be guilty of raping his wife but held that when a wife has been granted a legal separation her implied consent to marital intercourse is revoked. (36) The decision emphasized that it was the legal instrument of separation that served to revoke consent. (37) In a similar ruling shortly thereafter, Judge Lynskey went one step further and found that not only was legal separation sufficient to revoke consent, but previous judicial statements about an absolute marital exemption were mere dicta. (38)

   Twenty years later in R. v. O'Brien, Justice Park extended the legal separation theory by holding that a decree nisi effectively terminates marriage and concurrently revokes consent to marital intercourse. (39) A decree nisi is "[a] court's decree that will become absolute unless the adversely affected party shows the court, within a specified time, why it should be set aside." (40) The significant difference between legal separation and a decree nisi is that a separation under a decree nisi is not yet final. By holding that a decree nisi is sufficient to revoke consent, Justice Park lowered the threshold for revocation. During the same juncture in time, Lord Lane in R. v. Steele found that an injunction preventing the husband from molesting the wife was sufficient to revoke consent, but merely seeking a protective order was not. (41) Lord Lane did not want the threshold to be lowered any further.

   Soon after R. v. Steele, the continuing erosion of marital exemption was stalled when the Sexual Offenses (Amendment) Act of 1976 was passed. The Act codified the common law of rape and included the phrase "unlawful sexual intercourse with a woman" within the definition of rape. (42) Because the Act did not provide a definition of "unlawful," rape continued to be defined under common law and was thus construed as meaning "outside of marriage." (43) Under this definition, rape within marriage was not "unlawful" and marital immunity would thus persist.

   Not long after passage of the Act of 1976, however, the English judiciary was faced with a landmark series of marital rape cases. These cases would lead to the elimination of the martial rape exemption. The first of the series was R. v. R.[1], decided in July 1990 by Justice Owen. (44) The couple involved had married in August 1984 and separated in...