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A Legal History of Marital Rape

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A Legal History of Marital Rape Contest and Consent: A Legal History of Marital Rape Jill Elaine Hasdayt Introduction ............................................................................................. 1375 I. The Marital Rape Exemption as it was Articulated, Understood, and Defended in the Nineteenth Century .................... 1382 A. Women's Legal Status in the Nineteenth Century .................... 1382 1. The Consensual Account of Nineteenth-Century Women's History ............................................................... 1382 2. The Law of Marriage in the Nineteenth Century ................ 1385 B. The Marital Rape Exemption in Nineteenth-Century Criminal Law ............................................................................ 1392 C. The Marital Rape Exemption's Effect on the Lived Experience of Marriage in the Nineteenth Century .................. 1406 II. The First Organized Feminist Campaign Against a Husband's Conjugal Rights ......................................................... 1413 A. A Wife's Right to Her Person as the Predicate for Women's Equality .............................................................. 1417 B. Structural Consent and Marriage as Legalized Prostitution ...... 1427 C. The First Woman's Rights Campaign Against Marital Rape as a Distinctly Nineteenth-Century Movement ............... 1433 Copyright © 2000 California Law Review, Inc. California Law Review, Incorporated (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Assistant Professor, University of Chicago Law School. B.A. 1994, J.D. 1997, Yale University. I would like to thank Reva Siegel, Emily Buss, Naomi Cahn, Mary Anne Case, Nancy Cott, Ariela Dubler, Allan Erbsen, William Eskridge, Dan Fischel, Elizabeth Garrett, Jack Goldsmith, Sally Gordon, Robert Hasday, R.H. Helmholz, Neal Katyal, Saul Levmore, Andrei Marmor, Linda McClain, Martha Nussbaum, Eric Posner, Stephen Schulhofer, Cass Sunstein, Adrian Vermeule, Robin West, and the participants in faculty workshops at the University of Chicago Law School, the Boston University School of Law, the Stanford/Yale Junior Faculty Forum, and the third annual meeting of the Working Group on Law, Culture, and the Humanities. Susan Gihring, Danielle Kemp, Cicely Weathington, Jeffrey Zeeman, and the University of Chicago Law Library provided excellent research assistance. The Arnold and Frieda Shure Research Fund contributed generous financial support. 1373 1374 CALIFORNIA LAW REVIEW [Vol. 88:1373 III. Alternate Iterations of the Nineteenth-Century Critique of Marital Rape ................................................................. 1442 A. The Advocates of Free Love ..................................................... 1444 B. The Popular Prescriptive Literature ........................................... 1451 1. The Prescriptive Account of the Harm of Marital Rape ........................................................ 1453 2. Manly Self-Restraint and Self-Interest ............................... 1461 IV. Circumscribed Legal Reform in the Nineteenth Century: The Law of Divorce ........................................................ 1464 A. A Husband's Unwanted Sexual Demands as Legal Cruelty ........................................................................ 1465 B. A Wife's Refusal of Marital Intercourse as Grounds for Divorce ................................................................. 1475 V. The Modem Debate over the Marital Rape Exemption ................... 1482 A. The Modem Defense of the Marital Rape Exemption ............... 1486 B. The Modem Feminist Campaign Against the Marital Rape Exemption ..................................................... 1491 C. The Lessons, and the Promise, of History ................................. 1498 2000] CONTEST AND CONSENT 1375 Contest and Consent: A Legal History of Marital Rape Jill Elaine Hasday INTRODUCTION At common law, husbands were exempt from prosecution for raping their wives. Over the past quarter century, this law has been modified somewhat, but not entirely. A majority of states still retain some form of the common law regime: They criminalize a narrower range of offenses if committed within marriage,' subject the marital rape they do recognize to less serious sanctions,2 and/or create special procedural hurdles for marital rape prosecutions? The current state of the law represents a confusing mix of victory and defeat for the exemption's contemporary feminist critics. Virtually every state legislature has revisited the marital rape exemption over the last twenty-five years, but most have chosen to preserve the ex- emption in some substantial manifestation. With rare exception, moreo- ver, courts have not invalidated state laws protecting marital rape. Political protest and legislative action, rather than any clear judicial 1. See, e.g., ALASKA STAT. § 11.41.432 (Michie 1998); ARIZ. REv. STAT. ANN. §§ 13-1406.01, 13-1407(D) (West 1989); ARK. CODE ANN. §§ 5-14-103, 5-14-105, 5-14-109 (Michie 1997); CAL. PENAL CODE §§ 261, 262 (West 1988); CONN. GEN. STAT. §§ 53a-65(2)-(3), 53a-70b(b) (1994); IDAHO CODE § 18-6107 (1997); IOWA CODE § 709.4(1)-(2) (1993); KAN. STAT. ANN. § 21-3517(a) (1995); Ky. REv. STAT. ANN. § 510.035 (Banks-Baldwin 1990); LA. REV. STAT. ANN. §§ 14:43, 14:43.1, 14:43.3 (West 1997); MD. ANN. CODE art. 27, § 464D (1996); MICH. CoMn,. LAws § 750.5201 (1991); MINN. STAT. § 609.349 (1987); Miss. CODE ANN. § 97-3-99 (1994); NEV. REv. STAT. § 200.373 (1997); N.H. REv. STAT. ANN. §§ 632-A:2, 632-A:5 (1996); OHIO REV. CODE ANN. §§ 2907.01(L), 2907.02 (West 1997); OKLA. STAT. tit. 21, § 1111 (1983); R.I. GEN. LAWS §§ 11-37-1(9), 11-37-2 (1994); S.C. CODE ANN. § 16-3-658 (Law. Co-op. Supp. 1999); S.D. CODIFIED LAWS §§ 22- 22-7.2, 22-22-7.4 (Michie 1998); TENN. CODE ANN. § 39-13-507 ( Supp. 1999); VA. CODE ANN. §§ 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.2:1 (Michie 1999); WASH. REV. CODE §§ 9A.44.010(3), 9A.44.050, 9A.44.060, 9A.44.100 (1988); Wyo. STAT. ANN. § 6-2-307 (Michie 1997); infra notes 408- 409 and accompanying text. 2. See, e.g., A~iz. REV. STAT. ANN. § 13-1406.0103) (West 1989) (giving judge discretion to treat marital rape as a misdemeanor); VA. CODE ANN. §§ 18.2-61(D), 18.2-67.1(D), 18.2-67.2(D), 18.2-67.2:1(C) (Michie 1999) (permitting court, if state prosecutor and victim agree, to place marital rapist on probation pending completion of counseling or therapy; once counseling or therapy is completed, court may discharge rapist and dismiss proceedings if it "finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness"). 3. See, e.g., CAL. PENAL CODE § 262(b) (West 1988) (one-year reporting requirement, unless victim's allegation is corroborated by independent evidence that would be admissible at trial); 720 ILL. Coap. STAT. 5/12-18(c) (West 1993) (thirty-day reporting requirement, unless court finds good cause for delay); S.C. CODE ANN. § 16-3-658 (Law. Co-op. Supp. 1999) (thirty-day reporting requirement). 4. See infra notes 470-471 and accompanying text. 1376 CALIFORNIA LAW REVIEW [Vol. 88:1373 statement of constitutional norms, has driven the partial and uneven modi- fication of the common law rule. If the modem opponents and defenders of the marital rape exemption agree on any question, it is that their dispute is a new one. The contempo- rary debate over the exemption operates on the assumption that the law's treatment of marital rape first became controversial in the late twentieth century. Supporters of the exemption frequently assert that women never saw the need to challenge a husband's conjugal rights until approximately twenty-five years ago. The drafters of the American Law Institute's Model Penal Code, who offer the most sophisticated contemporary de- fense of the exemption, explain that the rule-"so long an accepted fea- ture of the law of rape"-has only "recently come under attack."5 Judges similarly note that "until 1977 there was no serious challenge to the spousal exemption,"' or observe that "[u]ntil the late 1970's there was no real examination of' the subject whatsoever? Prominent modern femi- nists, in turn, identify themselves as part of the first organized political opposition to marital rape, "a reality about which little systematic was known before 1970."' To the extent that participants on either side of the debate consider historical questions at all, they generally content them- selves with a brief citation to Sir Matthew Hale, who wrote the most in- fluential treatise defending the marital rape exemption at common law.9 5. MODEL PENAL CODE AND COMMENTARIES § 213.1 cmt. 8(c), at 343 (Official Draft and Revised Comments 1980). 6. People v. De Stefano, 467 N.Y.S.2d 506, 511 (Suffolk County Ct. 1983) (noting "the extensive research done by this Court"). 7. Warren v. State, 336 S.E.2d 221,223 (Ga. 1985). 8. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 242 (1989) [hereinafter MAcKINNON, TOwARD]; see also CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 5 (1987) ("Since 1970, feminists have uncovered a vast amount of sexual abuse of women by men. Rape, battery, sexual harassment, sexual abuse of children, prostitution, and pornography, seen for thefirst time in their true scope and interconnectedness, form a distinctive pattern: the power of men over women in society.") (emphasis added); SUSAN MOLLER OKIN, JUSTiCE, GENDER, AND THE FAMILY 129 (1989) ("[I]n the 1970s and 1980s, partly as a result of the feminist and children's rights
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