HD33 - Marital Rape
Executive Summary: INTRODUCTION Pursuant to House Joint Resolution No. 301 (See Appendix A), the 1985 Session of the General Assembly called for a study of Virginia law relating to marital rape. The purpose of this study was to examine the implications of the marital exemption, which has historically existed in the Commonwealth's case law, in light of recent Virginia Supreme Court cases and sweeping revisions in the rape laws of other states. Thomas W. Moss, Jr., a delegate from Norfolk and sponsor of the study resolution, was selected to chair the joint subcommittee. Other members of the General Assembly chosen from the House of Delegates to serve on the subcommittee were Royston Jester, III, Clinton Miller, Franklin M. Slayton, Theodore V. Morrison, Jr., and, from the Senate, Thomas J. Michie, Jr., Wiley F. Mitchell, Jr., and Stanley C. Walker. Additionally, four citizen members with special expertise in this area of the law were selected by the Governor to serve on the study subcommittee: Nancy M. Brock of Virginia Beach, Jerrauld Jones of Norfolk, H. Lane Kneedler of Charlottesville and Ann P. Palamer of Fredericksburg. HISTORICAL BACKGROUND The legal doctrine that a man cannot be prosecuted for raping his wife has pervaded English common law for over two centuries. This concept is rooted in the writings of Sir Matthew Hale, a noted eighteenth century jurist and misogynist who achieved notoriety presiding over trials of "witches," who were frequently hung. In 1736, Lord Hale gave birth to the marital exemption doctrine when he wrote: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by this mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract...[I]n marriage she hath given up her body to her husband...." Although Lord Hale cited no authority for his statement (which was asserted in a treatise), the concept was accepted without question as part of the common law by American courts, legislators and criminal law experts. This irrevocable implied consent theory was buttressed by the traditional common law doctrine that a woman was her husband's property. Until relatively recent times, her legal existence was held to be "incorporated and consolidated into that of her husband." The first American case to formally recognize the marital exemption was decided by the Supreme Judicial Court of Massachusetts in 1857. Dictum in that case stated that marriage to the victim would always be a defense to rape. Decisions by courts in other states were quick to incorporate the reasoning of the Massachusetts court. The marital exemption endured virtually intact in this country for over a hundred years. Then, in 1978, a supermarket checkout clerk, Gloria Rideout, accused her husband of rape under an Oregon reform statute. Although John Rideout was acquitted, the question of whether a man has a right to rape his wife had been unleashed. In rapid succession, state after state either eliminated or modified the marital exemption, reflecting the more progressive view of women which has evolved in this country during recent decades. The Virginia Supreme Court joined this movement in early 1984 in the case of "Weishaupt v. Commonwealth," 227 Va. 389. In that decision, the court reversed preexisting Virginia law and held that a man could be found guilty of raping his wife, but only if the wife (i) was not living with her husband at the time, (ii) had refrained from voluntary sexual relations with him and (iii) had conducted herself in such a way to clearly show that the marriage was over. Less than six months later in the case of "Kizer v. Commonwealth," 1 VLR 274 (1984), the Supreme Court exonerated a defendant who had been convicted in lower court of raping his wife, reasoning that the wife had failed to make the fact of the marriage's termination sufficiently clear to her husband. As a result of this holding, much confusion was created over what behavior was necessary on a wife's part to satisfy the third "Weishaupt" requirement to adequately apprise her husband that their marriage was over. When this case was decided, only eight states still provided a complete exemption to rape while the parties were validly married. Subsequently, the General Assembly commissioned this study to clarify and, if necessary, amend the Commonwealth's laws governing marital rape. SUMMARY Following a comprehensive review of the historical, legal and social ramifications of this issue and the various alternatives available to protect wives who are sexually assaulted by their husbands, the joint subcommittee recommends: 1. That, as between spouses, the offenses of rape, forcible sodomy and inanimate object sexual penetration be recodified to encompass such acts committed while the parties are living apart or which resulted in serious physical injury to the complaining witness by the use of force or violence. 2. That a new, lesser included offense of marital sexual assault with diminished penalties be created which may apply where the parties are living together and there is no serious injury. 3. That counseling or therapy be provided for the accused spouse in some instances with the possibility of dismissal of charges or suspension of sentence when the court finds this action will promote maintenance of the family unit and be in the best interest of the complaining witness. 4. That Virginia's rape statute be made gender-neutral. |
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