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The Sex Right: A Legal History of the Marital Rape Exemption

  • Rebecca M. Ryan
Abstract

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period following World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like “rape,” “marriage,” and “husband” validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.

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1 Rollin M. Perkins, Perkins on Criminal Law 115 (Brooklyn: Foundation Press, 1957) (“Perkins (1957)”).

2 Dennis Drucker, “The Common Law Does Not Support a Marital Rape Exemption for Forcible Rape,” 5 Women's Ris. L. Rep. 181, 200 (1979).

3 I use the terms “official legal discourse” and “legal elite” somewhat interchangeably in this essay. By “legal elite,” I mean an elite group of official and professional legal actors writing textbooks and legal treatises during the time periods I studied. The “official discourse” I discuss is the textbooks and treatises themselves. Section II analyzes these kinds of sources exclusively. But in parts of sections I and, more important, III, I address sources written by people outside the legal elite that nonetheless affect the shape of official legal discourse and, in so doing, contribute to or, in fact, cause legal reform.

To help illustrate my conceptualization of legal reform, I use Robert W. Gordon's “black box” model of the relationship between law and society. In Gordon's metaphor, inside the black box lies “the law,” or “whatever appears autonomous about the legal order.” Gordon, “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” 10 Law & Soc'y Rev. 9, 10 (1975). Outside the box lies society, all that is nonlegal. The “mass of things inside the law-box” are affected by what Gordon calls “input,” social influences such as class, race, gender, economics, politics, and religious beliefs. On the other side of the equation lies “output,”“the effects or impact of the mass upon the society.”

In this essay, “official discourse” as I define it lies inside Gordon's law-box. I place it there because in this kind of legal writing I see this essay's main terms or concepts, such as “marriage,”“husband,”“marital rights,” and “marital duties,” officially defined. This power to define officially is reserved for the legal elite, for although individual married couples may define their relationships and roles in various ways, the elite legal actors who write official discourse have the power to define these tern in a way that society at large recognizes as universally (in the “universe” of America, that is) legitimate; put more simply, official legal discourse holds legitimacy in society. It is this unique legitimacy that grants official discourse entry into the autonomous “box of legal things.” (Of course, one could argue that because it is society that recognizes official legal discourse as legitimate, it is society that actually holds the legitimacy and not the legal elite. If society at large decided one day to ignore laws and legal discourse, the power to define legal ideas would lose all importance. Within this analysis, official discourse has no autonomous power and should not, therefore, be allowed in the law-box. But I think this model is too hypothetical. For the purpose of this essay, I feel it is important to highlight how during the time periods I studied, official discourse both expressed and validated people's definitions of legal ideas like “marriage” and “husband,” and by thus controlling legal language, the legal elite held a unique power over people's senses of self.)

Because I studied a period of legal change, I define “input” into the law-box as the societal sources of that legal change, in this essay the platforms of the 19th-century woman's movement and the 20th-century feminist movement. I define the “output” of the law-box as the effect that new legal definitions have on the way people perceive themselves and how that change in self-definition could ultimately change their behavior. In particular, I analyze how the definitions of “marriage” and “husband” changed during the time periods I studied. Thus, I infer how men's perceptions of themselves in marriage may ultimately change with those definitions and how their self-expression or behavior may also change as a result.

4 William Blackstone, Blackstone's Commentaries, ed. George Sharswood, 325 (Philadelphia: Lippincott Co., 1896) (“Blackstone, Commentaries”).

5 Id. at 325.

6 Id. at 441.

7 Id. at 442.

8 James Schouler, A Treatise on the Law of Domestic Relations; Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant 35 (4th ed. Boston: Little, Brown, & Co., 1889) (“Schouler, Treatise”).

9 See Blackstone, Commentaries 432: “Our law considers marriage in no other light than as a civil contract.” See Carole Pateman, The Sexual Contract chap. 1 (Stanford, Cal.: Stanford University Press, 1988) (“Pateman, Contract”), for an interpretation of that civil contract as a patriarchal, sexual pact.

10 For a discussion of this permanence and an elaboration of some of the exceptions to this rule, see Hendrik Hartog, “Marital Exits and Marital Expectations in Nineteenth Century America,” 80 Geo. L.J. 95–129 (1991).

11 Schouler, Treatise 4.

12 For an exploration of the development of constitutional rights in relation to groups in positions of relative dependence and servitude, see Hendrik Hartog, “The Constitution of Aspiration and ‘The Rights That Belong To Us All,’” 74 J. Am. Hist. 1013 (1987).

13 Michael Grossberg, Governing the Hearth 297 (Chapel Hill: University of North Carolina Press, 1985) (“Grossberg, Hearth”).

14 For an analysis of women's “greater economic independence,” see Marylynn Salmon, Women and the Law of Prom in Early America chap. 5 (Chapel Hill: University of North Carolina Press, 1986) (“Salmon, Women and Property”), on the rise of separate estates.

15 See John Locke, 2 Two Treatises of Government, ed. P. Laslett (2d ed. Cambridge: Cambridge University Press, 1967).

16 Schouler, Treatise 4.

17 See again Hartog, 80 Geo. L.J. (cited in note 10). Note that many 19th-century feminists did challenge the transcendence of marriage in law. When I say “unquestionable” I mean unquestioned within the legal elite.

18 Blackstone, Commentaries 325 (cited at note 4). 1 discuss here the “sexual aspect” of marriage, making no distinction between sexual passion and reproduction as elements of sexuality in general. To be sure, sex in marriage (and out) can describe many different human values and activities; sexual pleasure and reproduction name only two. But for the purpose of this essay, I do not address these distinctions, for I am concerned with the husband's right of sexual access to his wife, that is, his right to have sex with his wife plain and simple, regardless of what the sex act itself may have meant culturally during the time periods I studied. Thus the “sexual aspect” as I call it describes any meaning the sex act took during those time periods. For a history of the different meanings, regulation, and politics of sexuality in America, see John D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper & Row, 1988).

19 Blackstone, Commentaries 325 (cited in note 4).

20 Schouler, Treatise 11 (cited in note 8). Note that in his discussion of marriage's sexual purpose, Schouler does emphasize sexual passion or pleasure rather than reproduction, suggesting chat in the 20th century sex and sexual passion did become more important to lawmakers' (and the general) conception of marriage.

21 Schouler, Treatise 37.

22 Id. at 35–36.

23 Rollin M. Perkins, Cases and Materials on Criminal Law 662 (2d ed. Brooklyn, N.Y.: Foundation Press, 1959) (“Perkins, Cares”); State v. Oliver, 70 N.C. 60 (1874).

24 Lord Chief Justice Sir Matthew Hale, 1 The History of the Plea of the Crown 629 (London: Sollom Emlyn, 1778) (“Hale, Pleas”).

25 I do not offer a definition of “consent” here, for I recognize that because of legal theories like Sir Matthew Hale's, even today a wife's, or a woman's for that matter, “consent” defies all but the murkiest definition in law and, often, in life. I attempt here only to define the “implied consent” theory. But bear in mind when reading this history of the marital rape exemption that there still exists an unwritten presumption in and out of courtrooms that a wife, or woman in any sexual relationship with a man, generally consents to sex with her partner, as the end of sec. III and the whole of sec. IV illustrates. This presumption lowers the threshold of consent for these women, making it difficult to establish in or out of a courtroom their independent will. This prejudice is surely the “implied consent” theory's legacy, but is not the main subject of this essay. I am more concerned with how and why the legal elite came to reject the marital rape exemption in the first place than with the complexities of actually implementing the new laws.

26 Specifically, Pateman takes issue with traditional social contract theorists like John Locke and Thomas Hobbes.

27 Pateman, Contract 2 (cited in note 9).

28 See John Stuart Mill, On the Subjection of Women (New York: Everyman's Library, 1970), and William Thompson, Appeal of One Half the Human Race, Women, against the Pretensions of the Other Half, Men, To Retain Them in Political, and Thence in Civil and Domestic Slavery (London: Virago Press, 1983).

29 Note in the following subsection and sec. III that although in note 3 I reserve Gordon's law-box for only official legal discourse, almost all the sources I use here couch their arguments in legal terms. Precisely because official legal definitions wielded so much power in society during the time periods I studied, legal language became the medium through which activists during the 19th- and 20th-century women's movements (the nonlegal “cultural” influences that shaped the contents of the law-box) argued their positions. Activists in both movements understood that the law, and laws regulating marriage and the family in particular, legitimized and, in so doing, maintained many of the power inequalities they fought to destroy. By redefining the legal status of husband and wife in their own terms, both movements tried to take the instrument of hegemony away from “male authority” and use it to legitimize their own gender orthodoxy. In this way, legal language became the “arena” through which opposing groups fought over definitions of self in society and in relationships like marriage. I borrow the idea of “legal arena” from Michael Grossberg, who defines “legal institutions and rules as public sites for contests over the meaning and application of the law.” Michael Grossberg, “Battling over Motherhood in Philadelphia: A Study of Antebellum American Trial Courts as Arenas of Conflict,”in Mindie Lazarus-Black & Susan Hirsch, Contested States 153, 154 (New York: Routledge Press, 1994). Within this interpretation, this essay addresses the debate over marriage and the husband's sex right in the postwar legal arena.

30 Elizabeth Cady Stanton, “Address to the New York State Legislature, 1860,”in Beth Waggenspack, ed., The Search for Self-Sovereignty: The Oratory of Elizabeth Cady Stanton 117 (New York: Greenwood Press, 1989) (“Stanton, ‘Address’”).

31 Elizabeth Cady Stanton, “Address to the Legislature of New York on Women's Rights,” 14 Feb. 1854, in Ellen Carol Dubis, ed., The Elizabeth Cady Stanton-Susan B. Anthony Reader 48 (rev. ed. Boston: Northeastern University Press, 1992).

32 Salmon, Women and Property 85 (cited in note 14).

33 Grossberg, Hearth 300 (cited in note 13). Grossberg (at 301) emphasizes, however, that these developments did not prove radical in the context of judicial discretion: “Judges recast the law to aid wives and mothers who successfully performed household responsibilities such as child rearing and to compensate them for the travails of courtship and matrimony, while at the same time invoking their authority to check radical alterations in the subordinate legal status of women.”

34 Laurence Stone explains the rise of the “companionate” ideal in marriage during 17th-century England: “The increasing stress laid by the early seventeenth-century preachers on the need for companionship in marriage in the long run tended to undercut their own arguments in favor of the maintenance of strict wifely subjection and obedience.”Sex, Family, and Marriage in England 1500-1800 at 325 (New York: Harper & Row, 1977).

35 Chester G. Vernier, 3 American Familly Laws 4 (Stanford, Cal.: Stanford University Press, 1935).

36 Id. at 3.

37 Again, I do not distinguish here between reproduction and sexual passion. There clearly exists a distinction, and one with certain historical significance, which I cannot explore here.

38 In reference to note 3, the former paragraph overviews what happened to official legal discourse—what happened inside the law-box as I define it here—during the postwar era in response to the “input” of the 19th-century woman's movement.

39 This paragraph outlines how social changes outside the law-box affected official discourse in the 1970s. But the line between official discourse and “input”—-feminist platforms generally—blurred during this time period as feminists “within and without” of the legal elite advocated the same gender orthodoxy.

40 John Galsworthy, The Man of Property (first novel in The Forsythe Saga) 245 (New York: Charles Scribner's Sons, 1934) (“Galsworthy, Property”).

41 Id. at 245.

42 Id. at 246.

43 Id. at 245.

44 David Finkelhor & Kersti Yllo, License to Rape 1 (New York: Holt, Rinehart & Winston, 1985).

45 See Blackstone, Commentaries 325 (cited at note 4): “That of husband and wife; which is founded in nature, but modified by civil society; the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”

46 “‘It is well for a man not to touch a woman.’ But because of cases of sexual immorality, each man should have his own wife and each woman her own husband. The husband should give to his wife her conjugal rights, and likewise the wife to her husband.” 1 Cor. 7: 1-3 (New Revised Standard Version).

47 See William Edward McCurdy, Cases on the Law of Persons and Domestic Relations 156 (4th ed. Chicago: Callaghan & Co., 1939) (“McCurdy, Cases”):“It has always been held that the contract of marriage implies the ability to consummate it. In my opinion it also implies the willingness to consummate it.”

48 The concept of “conjugal rights” originated in canon law, where authority over the spouse's body was granted in theory to both husband and wife: “For the wife does not have authority over her own body, but the husband does; likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except perhaps by agreement for a set time.” 1 Cor. 7: 4 (New Revised Standard Version). Common law reformulation of this system of rights and duties assigned the sexual right a singular gender. See Schouler, Treatise 36-37 (cited in note 8): “Under this head we may add the duty of cohabitation or adherence is not fulfilled by literal or partial compliance. Thus the refusal of sexual intercourse and the nuptial bed, without good excuse, is a very serious wrong which husbands, at all events, are disposed to construe into justifying ground for divorce. Living in the same house, but willfully declining matrimonial intimacy and Companionship, is per se a breach of duty, tending to subvert the true ends of marriage.”

49 See Blackstone, Commentaries 441-42: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing…. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by marriage.”

50 See McCurdy, Cases 362: “She is presumed to be under the power of the husband; and cohabitation may have arisen from coercion.”

51 Schouler, Treatise 36.

52 See Hale, Pleas 629 (cited in note 24): “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

53 Perkins (1957) at 115.

54 Id. at 801.

55 Quoted in Perkins, Cases 576 (cited in note 23). Nine years later, Perkins's 1966 casebook on criminal law foreshadowed the future decay of marital unity, the theory which traditionally immunized couples from criminal conspiracy charges: “The common-law theory, that husband and wife are one, made it impossible for them to be guilty of conspiracy if no third person was involved. But the tendency is to abandon this theory.” Marriage no longer excused wives from criminal prosecution. Marriage no longer gave men total control over women's property. The legal culture had rejected these legal privileges of marriage, in turn abandoning those privileges the husband assumed within marriage.

56 Perkins (1957) at 115.

57 See Schouler, Treatise 35 (cited in note 8): “If the wife's wishes and interests clash with his own, she must yield.”

58 “Rape and Battery between Husband and Wife,” 6 Stun. L. Rev. 719 (1954).

59 Id. at 722–23.

60 Id. at 724.

61 Id.

62 Id. at 725.

63 Schouler, Treatise 64.

64 See Joel P. Bishop, I Commentaries on the Law of Marriage and Divorce 760, 754 (4th ed. Boston: Little, Brown, & Co., 1864): “The law gives the husband the right to have his wife occupy the same bed with himself,” and id. at 754: “He is to practice tenderness and affection, and obedience is her duty.” Schouler, Treatise 61–62, grounds this exchange of rights and duties in the theory of a sanctified marital union: “The naturalest and first conjunction of two towards the making of a further society of continuance is of the husband and wife, each having the cause of the family: … which to maintain God has given the man greater wit, better strength, better courage, to compel woman to obey by reason or force … and they two together rule the house so long as they remain one.”

65 See Blackstone, Commentaries 325 (cited at note 4).

66 As I explain in sec. I, I take the idea of marriage's “sexual core” from Pateman.

67 Perkins, Cases (1959) at 242 (cited in note 23).

68 Id. at 243.

69 McCurdy quotes an 1883 case defining the husband's civil cause of action for his wife's adultery. The description reveals the connection between Perkins's version of adultery and the orthodox vision of marital right and duty: “The essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife, and to beget his children.” William Edward McCurdy, Cases on the Law of Persons and Domestic Relations 731 (5th ed. Chicago: Callaghan & Co., 1952).

70 Perkins (1957) at 117. For a feminist critique of Perkins's rape section in his criminal law textbook, see Mary Irene Coombs, “Crime in the Stacks, or A Tale of a Text: A Feminist Response to a Criminal Law Textbook,” 38 J. Legal Educ. 117 (1988).

71 6 Stan. L. Rev. at 724 (cited in note 58).

72 Id.

73 Id.

74 Perkins (1957) at 111.

75 American Law Institute, 2 Model Penal Code and Commentaries 437 (Philadelphia: American Law Institute, 1980) (“ALI, Model 1980”).

76 See Sanford H. Kadish & Monrad G. Paulsen, Criminal Law and Its Processes: Cases and Materials 8-30 (Boston: Little, Brown & Co., 1962) (“Kadish & Paulsen, Criminal Law”).

77 Perkins (1957) at 574.

78 ALI, Model 1980 at 437.

79 American Law Institute, Model Penal Code, Tentative Draft No. 4 (1955), from Kadish & Paulsen, Criminal Law.

80 American Law Institute, Model Penal Code, Tentative Draft No. 4 (1955) 4 (Philadelphia: American Law Institute, 1956) (“ALI, Model Code, Tent. Drab No. 4”).

81 Wolfenden Report (1957): “In this field, its function, as we see it, is to preserve public ‘order and decency,’ to protect the citizen from what is ‘offensive or injurious,’… It is not, in our view, the function of the law to intervene in the private lives of citizens…. It follows that we do not believe it to be a function of the law to attempt to cover all the fields of sexual behavior,” from Kadish & Paulsen, Criminal Law 5. During the drafting of that code, Lord Justice Devlin provided influential commentary on the criminal regulation of morals, pressing the question of individual freedom into the debates: “But… the individual has a locus standi too; he cannot be expected to surrender to the judgment of society the whole conduct of his life,”“The Enforcement of Morals,” Maccabian Lecture in Jurisprudence of the British Academy,”from Kadish & Paulsen, Criminal Law 13.

82 ALI, Model (1980) 437.

83 Id. at 438.

84 Id.

85 Id. at 362.

86 Id. at 363.

87 Id. at 365.

88 Id. at 274.

89 Id. at 275.

90 ALI, Model Code, Tent. Draft No. 4 at 91 (cited in note 80).

91 At this point in my story, marital privacy simply refers to the age-old desire to shield marital discord from the criminal courts.

92 ALI, Model (1980) 343.

93 ALI, Model Code, Tent. Draft No. 4 at 295.

94 One theory about why the postwar legal elite did not reject the marital rape exemption at that time differs slightly from my own. This theory begins that American society defined the sexual aspect of marriage as fundamental only in the 20th century with the rise of the “companionate marriage” ideal in the 1920s and the loosening of sexual mores in general. Note that this position defines “sexual aspect” as sexual passion alone, while I do not so restrict the definition (see note 18). For an inquiry into the “redefinition of sexual boundaries in modem America”; see Estelle B. Freedman, “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920-1960,” 74 J. Am. Hist. 83 (1987). Within this interpretation, the maintenance of the marital rape exemption in the Model Penal Code, and the creation of the constitutional right to marital privacy discussed in the next subsection, represented the culmination of attempts to institutionalize this 20th-century marriage orthodoxy, rather than the legacy of a much older orthodoxy (as I argue). I find this idea fascinating and would like to investigate it later, for the theory suggests that postwar legal scholars made conscious attempts to protect the marital rape exemption and posits that the research in my essay illustrates this point. But I do not believe my research supports this point. The difficultly I had finding any legal sources that discussed the exemption suggests to me that the legal elite made no conscious attempts to protect it. I argue that these scholars did not reject the exemption because it codified an idea that to them still defined marriage—its male sex right. For this reason, it simply never occurred to them to reject it, or even to insure that their rationales for protecting it were logical.

95 The 1874 domestic battery case of State v. Oliver, 70 N.C. 60 (1874), laid down this rule for domestic violence in the criminal courts: “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.” This statement characterizes the tradition of marital privacy in the criminal courts. From in Perkins, Cases (1959) 662.

96 Griswold v. Connecticut, 381 U.S. 479 (1965).

97 ALI, Model Code, Tent. Draft No. 4 at 279.

98 ALI, Model (1980) 364.

99 Id. at 365.

100 Ira Mark Ellman, Paul M. Kurts, & Katherine T. Barrlett, Family Law: Cases, Texts, Problems 852 (2d ed. Charlottesville, Va.: Michie Co., 1991) (“Ellman et al., Family Law”); Griswold v. Connecticut, 381 US. 479 (1965).

101 Ellman et al., Family Law 854-55; Poe v. Ullman, 367 U.S. 497.

102 Ellman et al., Family Law 854.

103 Id. at 853; Griswold v. Connecticut, 381 US. 479 (1965).

104 Ellman et al., Family Law 853–54. These assertions appear innocuous outside their historical context. But the tradition of marital privacy that the justices revered included the denial of the criminal law's protection to the victims of spousal battery; see quotation from State v. Oliver, 70 N.C. 60, in note 95. The ALI's embrace of this attitude inspired the states' application of the right to the privacy to perform deviate sexual intercourse in both consensual and nonconsensual circumstances—i.e., the codification of marital exclusion for rape and other forms of sexual assault.

105 Eisenstadt v. Baird, 405 US. 438 (1971).

106 We look now for the first time since section I at changes that occurred outside the law-box as I define it in note 3. This section is, to a certain extent, the most important, for it is here that I illustrate how changes in society affect the contents of the law-box, official legal discourse.

107 I do not mean to present the “feminist movement” as a monolith. There were divisions in what is now considered “the women's movement” of the 1970s, particularly around the issue of sexuality. My thesis refers to the “radical” feminist strain of the women's movement characterized by groups like the Redstockings. For an exploration of the debates over sexuality between “radical” and “libertarian” feminists, see Ann Ferguson, “Forum: The Feminist Sexuality Debates,” 9 Signs 106 (1984).

108 I do not mean to oversimplify or overstate parallels between the 19th- and 20th-century women's movements. There were sharp differences between the two movements, most notably in this context, the latter's emphasis on gender inequalities in sex and sexuality. I argue here only that both movements used legal language and ideas to attack “male authority” as they saw it. Specifically, both used the image of property to critique women's position in law.

109 Nor do I imply here that this critique marked the only difference between the two movements. It simply marks the contrast most significant to my essay.

110 Walter Wadlington, “Divorce without Fault without Perjury,” 52 Va. L. Rev. 32, 32 (1966).

111 “For it is better to many than to be aflame with passion. To the married I give this command—not I but the Lord—that the wife should not separate from her husband … and that the husband should not divorce his wife.” 1 Cor. 7: 9–11.

112 Wadlington, 52 Va. L. Rev. at 32.

113 Id. at 40.

114 Herma Hill Kay, Divorce Reform at the Crossroads 11 (New Haven, Conn.: Yale University Press, 1990).

115 Id. at 36.

116 See Schouler, Treatise 4 (cited in note 8): “And although the voluntary act of two parties brings them within the law, they cannot voluntarily retreat when so minded. To an unusual extent, therefore, is the law of family above, and independent of, the individual.”

117 Ellman et al., Family Law 857 (cited in note 100); Eisenstadt v. Baird, 405 US. 438 (cited in note 105).

118 Ellman et al., Family Law 858.

119 See People v. Liberta, 474 N.E. 2d 567 (N.Y. 1984).

120 Cynthia Fuchs Epstein, Women in Law 5 (2d ed. Urbana: University of Illinois Press, 1993).

121 The significance of women's entrance into the legal profession, to both women outside the legal profession and the practice of law, is a debated issue. The feminization of the legal profession matters for our purposes only because many of the women newly entering the field championed the feminist platforms within the profession that feminists developed outside it. This dynamic illustrates how societal changes affected legal discourse by blurring the line between the legal elite—those people with direct access to the law-box—and the feminist movement—peopled largely by those without it. For an inquiry problematizing Epstein's conclusions from her study, see Carrie Menkel-Meadow, “Women in Law? A Review of Cynthia Fuchs Epstein's Women in Law,” 1983 A.B.F. Res. J. 183.

122 See Kate Millet, Sexual Politics (New York: Simon & Schuster, 1990) (“Millet, Politics”), for theory outlining “sexual politics.”

123 See id. at 24: “I have therefore found it pertinent to define them on grounds of personal contact and interaction between members of well-defined and coherent groups: races, castes, classes, and sexes. For it is precisely because certain groups have no representation in a number of recognized political structures that their position tends to be so stable, their oppression so continuous.” Elizabeth Cady Stanton made a similar claim to women's group subordination: “We, as a class, are tired of one kind of protection, that which leaves us everything to do, to dare, and to suffer, and strips us of all means for its accomplishment.”“Address” (cited in note 30).

124 Millet, Politics 23.

125 Id. at 24.

126 Redstockings Manifesto, 7 July 1969, published in the N.O.W. Newsletter, July 1972, at 11 (“Redstockings”), from the Women's History Research Center, Berkeley, California, “Herstory 1 Continuing Update,” microfilm collection, reel 8 (1974) (“Herstory 1 Cont. Update”).

127 Redstockings at 11.

128 The phrase coined in the 1970s, “the personal is the political,” encapsulates this theory and became its mantra.

129 Miller, Politics 23.

130 Id. at 44.

131 Susan Brownmiller, Against Our Will 256 (New York: Fawcett Columbine, 1975) (“Brownmiller, Against”).

132 Susan Griffin, “The Politics of Rape,”Ramparts Mag., Sept. 1971, p. 8.

133 N.O.W Newsletter, Philadelphia Chap., Dec. 1972 (Herstory 1 Cont. Update, reel 8).

134 “Rape and Feminist Organizing,”Grass Roots, Oct. 1974, p. 8 (Herstory 1 Update, reel 3).

135 The preceding subsection illustrates a feminist platform not expressed in specifically legal language. In this way, these sources argue their points outside of the “legal arena” as I define it in sec. I, note 30. The following section describes how feminists did translate this issue into legal language.

136 Brownmiller, Against 18.

137 “The Rape Law: What It Means to You,” pamphlet published by the Women's Rape Crisis Center of Ann Arbor, Mich., from the Women's History Research Center, Berkeley, California, “Women and Law,” microfilm collection, reel 1, sec. 5 (1974) (“Women & Law collec.”).

138 Brownmiller, Against 23.

139 Anti-Rape Conference Bull., Sat., 16 June 1974, Los Angeles (Herstory 1 Cont. Update, reel 8).

140 N.O.W. Newsletter, May 1973, section entitled “Rape Crisis!” (Herstory 1 ant. Update, reel 8). The N.O.W task force on rape established in 1972 began publishing state rape statutes in chapter newsletters to educate and mobilize women about prejudicial laws. See N.O.W. Newsletter, Albuquerque, N.M., Chap., May 1972, vol. 3, no. 1 (Herstory 1 Cont. Update, reel 7).

141 N.O.W. Newsletter, Albuquerque, N.M., Chap., May 1972, vol. 3, no. 1 (Herstory 1 Update, reel 1).

142 Griffin, Ramparts Mag., p. 8 (cited in note 132).

143 N.O.W. Newsletter, Central New Jersey Chap., Nov. 1971 (Herstory 1 Cont. Update, reel 8). This quote captures why 1970s feminists couched many of their platforms in legal language and stressed legal reform. They recognized the law as a mechanism that allowed men to hold power over women. They recognized that the law, although they did not use this term, held legitimacy and wielded in that way, power in society. To claim that power for themselves would threaten the gender hierarchy the had up to that point supported.

144 Susan Wallace, from unpublished letter, 2 May 1973 (Women & Law collec., reel 1, sec. 5).

145 “Rape in the Courtroom,” no source, no date (Women & Law collec., reel 1, sec. 5).

146 Leigh Bienen, “Rape I,” 3 Women's Rts. L. Rep. 45, 54 (Dec. 1976).

147 Id. at 54.

148 Leigh Bienen, “Rape Reform Legislation in the U.S.: A Look at Some Practical Effects,” 8 Victimology 139, 149 (1983).

149 Camille E. LeGrand, “Rape and Rape Laws: Sexism in Society and Law,” 61 Cal. L. Rev. 919, 919 (1973).

150 This paragraph summarizes Susan Brownmiller's hypothesis about the origin of rape laws. Brownmiller, “In the Beginning Was the Law,” Against 16–30.

151 LeGrand, 61 Cal. L. Rev. at 925.

152 Brownmiller, Against 29 (cited in note 131).

153 Dates from Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women's Movement 1 (Boston: South End Press, 1982) (“Schechter, Visions”).

154 Id. at 4.

155 Id. at 2.

156 Id. at 3.

157 Id. at 34.

158 Id. at 32.

159 Id. at 31.

160 Id. at 32.

161 Id.

162 Id. at 217.

163 Id. at 218.

164 See Terry Davidson, Conjugal Crime: Understanding and Changing the Wifebeating Pattern (New York: Hawthorn Books, 1979), for a historical interpretation of the domestic battery in law and its patriarchal foundation from the battered women's movement.

165 Schechter, Visions 158 (cited at note 153).

166 Id. at 159.

167 R. Emerson Dobash & Russell Dobash, Violence against Wives: A Case against Patriarchy 1-2 (New York: Free Press, 1979) (“Dobash & Dobash, Violence”).

168 Lenore E. Walker, prologue: “The Story of Anne,”The Battered Woman 1–9 (New York: Harper & Row, 1979) (“Walker, Battered”).

169 Dobash & Dobash, Violence 3.

170 Sue E. Eisenberg & Patricia L. Micklow, “The Assaulted Wife: ‘Catch 22’ Revisited,” 3 Women's Rts. L. Rep. 138, 145 (1977).

171 Laurie Woods, “Litigation on Behalf of Battered Women,” 5 Women's Rts. L. Rep. 7, 9 (1978).

172 Eisenberg & Micklow, 3 Women's Rts. L. Rep. at 146.

173 Id. at 138.

174 Id. at 144.

175 Id. at 159.

176 Id.

177 Bienen, 8 Victimology at 144 (cited in note 148).

178 Id.

179 Id.

180 “The Marital Rape Exemption,” 52 N.Y.U.L. Rev. 306, 307 (1977).

181 Drucker, 5 Women's Rts. L. Rep. at 182 (cited in note 2).

182 52 N.Y.U.L. Rev. at 309.

183 Id. at 310.

184 Id. at 311.

185 Id. at 312.

186 Drucker, 5 Women's Rts. L. Rep. at 200.

187 People v. Liberta, 474 N.E. 2d 567 (N.Y. 1984).

188 For a case description, see id.

189 Id. at 573.

190 Id.

191 Id.

192 Id.

193 Id.

194 Id. at 574.

195 Id.

196 6 Stan. L. Rev. at 725 (cited in note 58).

197 Late 19th- and early 20th-century divorce suits in which a wife sued her husband on the grounds of “cruelty” because of forcible intercourse revealed the practical falsehood of “implied consent.” Divorce courts at that time accepted that sex “against the will” of the wife existed in marriage, regardless of how implicit the law claimed her consent to be. Robert L. Griswold cites a rape testimony that a 19th-century court heard during the 1876 English v. English cruelty suit: “This treatment continued up to the night of the second of November, 1875, when after he had had intercourse with her against her remonstrance, which she urged on account on the pain which the act would cause her, he sought it twice again … when he strove to accomplish his purpose by force.” See English v. English, 27 N.J. Equity Rep. 71–75 (1876), in Robert L. Griswold, “Sexual Cruelty and the Case for Divorce in Victorian America,” 11 Signs 539 (1986).

198 Pateman, Contract 167-68 (cited in note 9).

199 “Contractualist” here refers to the view that the marriage contract can be reformed to represent a gender-equal relationship in law. Contractualism asserts that the structure of gender inequality is separate from the concept of a contractual society.

200 Pateman, Contract 7 (cited in note 9).

201 Michael D. A. Freeman, “‘But If You Can't Rape Your Wife, Who[m] Can You Rape?’ The Marital Rape Exemption Re-examined,” 15 Family L.Q. 1, 29 (1981).

202 By 1980, New Jersey, Oregon, and California had amended their rape statutes. Delaware, Florida, and Nebraska also had no spousal exclusion for rape in 1980. For a complete summary of state rape statutes in 1980, see Leigh Bienen. “Rape IV,” 6 Women's Rts. L. Rep. 1 (supp. Summer 1980).

203 C. A. Bastian, “Why Are There Two Rape Statutes in California?” at 4 (legislative history of sec. 262, from the legislative history of A.B. 2220, California State Archives).

204 For example, the sexual imagery a writer for the San Francisco Chronicle employed in objecting to the bill suggested a belief in the bill's moral, as well as legal, violation of marital privacy: “The problem here is that such a law constitutes an invasion by the government of the marital bedroom; a place from which we have been largely successful in removing its prurient eye.”“Marital Rape Bill,”San Francisco Chronicle, 1 July 1979 (in legislative history of A.B. 546, California State Archives).

205 For example, using the analytic tool of sexual politics, Assembly Member Mori demanded that rape represented an exertion of power regardless of the victim's identity: “this is not a lesson on love and desire. Rather, it is a lesson on violence, anger, and the power of domination by one human being over another…. The fact that the victim is one's spouse is incidental except for one minor detail—that being the availability of the victim.” Letter to the editor of the Times, 6 July 1979 (legislative history of A.B. 546, California State Archives).

206 Mori, Times. See Appendix A for the original versions of these two statutes after A.B. 546 was chaptered.

207 The Committee on Criminal Justice's analysis of A.B. 546, 23 April 1979, from the legislative history of A.B. 546, California State Archives. (The Committee on Criminal Justice is now called the Committee on Public Safety.) See again appendix A.

208 ALI, Model (1980) 344 (cited at note 75).

209 Id.

210 Id.

211 Id.

212 Interview with Laura X, Director of the National Clearinghouse on Marital and Date Rape, 19 Feb. 1994.

213 See appendix B for a chart of the marital rape legislation passed during the 1980s.

214 Again, I emphasize a purely “sexual” equality.

215 I interviewed Officer Dave Hanczuk of the Los Angels Police Department, head of the training section on domestic violence at the L.A. Police Academy on 27 Oct. 1993. He said of wife beaters: “when two big guys come to their houses, handcuff ‘em, and take them down to the station for the night, they start to wonder whether or not its really o.k. to hit their wives.” We can apply the same hypothesis to marital rapists.

216 Galsworthy, Property 245 (cited in note 40).

217 Id.

218 Id.

219 Id.

220 Id. at 246.

221 Diana E. H. Russell, Rape in Marriage 123 (Bloomington: Indiana University Press, 1990).

222 Id. at 135.

223 Id. at 137.

224 1980 California Statutes and Amendments to the Codes (1980), chap. 587.

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