American Bar Foundation, Wiley Law & Social Inquiry

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

Author(s): Rebecca M. Ryan
Source: Law & Social Inquiry, Vol. 20, No. 4 (Autumn, 1995), pp. 941-1001
Published by: Wiley on behalf of the American Bar Foundation
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The Sex Right:
A Legal History of the Marital
Rape Exemption
Rebecca M. Ryan
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 iUustrates how the post-
war 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 mar-
riage 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 lan-
guage affects people's senses of self. I argue that legal words like "rape,"
"marriage," and "husband" validate and inform people's, specifically hus-
bands', identities in marriage. By changing the meanings of those legal
words, legal reform can eventually change human behavior.
In 1957, Rollin M. Perkins wrote in his treatise on criminal law, "A

man does not commit rape by having sexual intercourse with his lawful wife,
even if he does so by force and against her will."' At that time in the United
Rebecca M. Ryan recently completed her undergraduate work at Princeton University.

She now lives in Washington, D.C., where she works for the National Center on Institutions
and Alternatives. At NCIA, Ms. Ryan develops and drafts alternative sentencing plans for
criminal defendants in state and federal courts. She also counsels juvenile sex offenders
within NCIA's clinic wing, the Augustus Institute. She thanks Hendrik Hartog for his
unfailing guidance and encouragement and Elise Meslow for her invaluable edits and
criticisms.
1. Rollin M. Perkins, Perkins on Criminal Law 115 (Brooklyn: Foundation Press, 1957)
("Perkins (1957)").
© 1996 American Bar Foundation.

0897-6546/95/2004-0941$01.00 941
942 LAW AND SOCIAL INQUIRY
States, every state either upheld the marital rape exemption for husband
explicitly in their statute or trusted its existence to the common law. By
1980, when the California legislature passed A.B. 546, a bill overturning it
marital rape exemption for husbands, official legal discourse on the marita
exclusion prior had already attacked the exemption as "outmoded," calling
it "a barbaric anachronism."2 This essay tells the story of how the American
legal elite came to reject the husband's privilege to rape his wife.3
I begin by asking why, despite the legal rights they had granted wives
over the preceding century, the postwar legal elite never considered over-
turning the marital rape exemption for husbands. In this essay, I argue that
although the professional culture formally rejected the principle of marita
unity during the early 20th century, the male sex right remained fundamen-
2. Dennis Drucker, "The Common Law Does Not Support a Marital Rape Exemption for
Forcible Rape," 5 Women's Rts. 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 writ-
ing textbooks and legal treatises during the time periods I studied. The "official discourse"
discuss is the textbooks and treatises themselves. Section II analyzes these kinds of source
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 Histori-
ography," 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 othe
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 a
"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 officia
discourse have the power to define these terms in a way that society at large recognizes as
universally (in the "universe" of America, that is) legitimate; put more simply, official lega
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 th
legitimacy and not the legal elite. If society at large decided one day to ignore laws and lega
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.
Marital Rape Exemption 943
tal to postwar legal scholars' conception of marriage. By upholding the mari-

tal rape exemption while officially rejecting the theory that supported it,
the postwar legal elite created hypocritical arguments that left the exemp-
tion open for attack.
But an attack on the exemption could not have come from within the
postwar legal elite. Before the 1970s feminist movement pushed its theory of
sexual politics into legal discourse, the legal elite simply could not have
conceived of redefining marriage outside its sexual precept or, consequently,
of renouncing the marital rape exemption. Viewed in this way, the feminist
movement represented the crucial stage in a process that spanned the post-
war period, officially discrediting an exemption that had long since lost its
theoretical foundation in name but not in the minds of postwar legal
scholars.
I. INTRODUCTION
Origins of the Exemption
In order to understand this change, we must first understan

of the marital rape exemption. To comprehend the origina
must appreciate how the 18th-century legal scholars who d
supported that rationale envisioned the marriage contract.
Blackstone discussed the marital contract under the heading
economical relations," likening "husband and wife" to the oth
lationships of "master and servant" and "parent and child."4
the subjects suggested the same unilateral division of power in a
relationships. Coming first, "master" and "parent" sound to t
like obvious authority figures. In the 18th century, "husba
within the same category of superiors. Embedded in each of
ships lies a dialectic of rights, or what Blackstone called "th
duties in private economical relations."5
But the ideology framing this dialectic of rights in the m
tract distinguished it from the other private relationships.
when a man and woman married, their legal identities mer
came one person in the eyes of the law according to the princip
unity. The merger looks to us more like forfeit and seizure in it
By marriage, the husband and wife are one person under

the very being or legal existence of the woman is suspended
marriage, or at least is incorporated or consolidated into
4. William Blackstone, Blackstone's Commentaries, ed. George Sharswood

phia: Lippincott Co., 1896) ("Blackstone, Commentaries").
5. Id. at 325.
husband: under whose wing, protection, and cover, she performs every
thing ... and her condition during her marriage is called coverture.6
This principle of marital unity established each party's status: "Upon this
principle, of union of person in husband and wife, depend almost all the
legal rights, duties, and disabilities, that either of them acquire by mar-
riage."7 Marital unity thus embedded the dialectic of rights specific to mar-
riage within the status of each spouse. That dialectic stood as follows: Under
coverture, the wife forfeited her legal existence, thereby forfeiting her in-
dependent rights in the law; the husband assumed her rights, or assumed
right over her; in return, he was to offer the protection she presumably
required in her weakened state. If his duty was protection, her duty was
above all else, obedience. Nineteenth-century legal scholar James Schouler
wrote: "It is for the wife to love, honor, and obey: it is for the husband t
love, cherish, and protect."8 Marital unity proved, then, misleading. The
dialectic of rights within the marriage contract defined the spouses not a
sharing one person, but each as owning an opposite status-the husband,
possessor of rights, and the wife, his charge.
The 18th-century Anglo-American legal elite required no justification
for this unilateral system of rights. According to Blackstone, marriage was a
"civil contract" like other public agreements but with one exception: The
contracting persons could not define the terms of the marriage contract.9
Formally, marriage imposed the unchangeable and lifelong roles of husband
and wife and the rights and duties belonging to them as the married man
and woman.10 This system defined the husband as superior and the wife as
subordinate regardless of the individual parties involved. According to
Schouler, "[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 indi-
vidual."" The meaning behind the husband's superiority appears circular
when viewed from a contemporary perspective-the husband had a superior
status because his status was superior.
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. Bos-
ton: 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.: Stan-
ford 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.
As legal ideology in the 19th century came to value individual rights,

the seemingly "right-less" status of the wife became problematic for both the
American legal elite and American society.12 Michael Grossberg has ex-
plored the roots of the 19th-century critique, emphasizing "the obvious gap
between republican ideals, especially the aversion to dependency, and the
limited legal rights of women and children."13 The legal elite responded, in
part, by granting wives greater economic independence.14
Justifying the maintenance of inequalities between husband and wife,
19th-century legal discourse simultaneously rerooted marital status in natu-
ral law. The inequality of power between husband and wife came to be
understood as the reflection of natural law, rather than a man-made dic-
tate.'5 Schouler's discussion of the family domicile provides a window into
this rationale: "The domicile of the wife follows that of the husband; the
domicile of the infant may be changed by the parent. Thus does the law of
domicile conform to the law of nature."'6 Despite this ideological revision,
the position of marriage in law remained essentially the same. The marriage
contract, defined as a codification of natural law, still placed the marriage
institution above the individuals. The definition of marriage in law and in
the dialectic of rights that marriage created continued to be essentially un-
questionable; the contract remained transcendent and unchangeable.17
Both 18th- and 19th-century law defined the sexual aspect of marriage
as fundamental. Blackstone thought of the marriage contract as the regula-
tion of man's natural (distinct from the idea of natural law) sexual instinct.
By confining sex within the moral framework of marriage, the purpose of
sex and, consequently, of marriage became procreation: "That of husband
and wife; which is founded in nature, but modified in 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 regu-
lated."'8 Blackstone reasoned that the relationship "of parent and child . . .
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 Car-
olina Press, 1985) ("Grossberg, Hearth").
14. For an analysis of women's "greater economic independence," see Marylynn Salmon,
Women and the Law of Property 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).
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). I discuss here the "sexual aspect" of
marriage, making no distinction between sexual passion and reproduction as elements of sexu-
ality 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
[was] consequential to that of marriage, being its principal end and

design."19
Concurring with this basic sexual purpose a century later, Schouler also
revealed that this "design" tilted the sexual authority to the husband. He
wrote: "sexual indulgence is mutually permitted under healthy restraints;
woman's condition becomes one of comparative subjection."20 The sexual
superiority of the husband thus translated into the most basic right within
what can be understood as an essentially sexual contract prescribing a hier-
archy of rights and duties: "Living in the same house, but willfully declining
matrimonial intimacy and companionship, is per se a breach of duty, tend-
ing to subvert the true ends of marriage."21 Schouler described the natural
system of rights and duties as the masculine "conjugal right" and the femi-
nine "duty of cohabitation."22
The transcendent construct of the marriage contract created a privi-
leged position for the marriage relation within state penal codes. Because
marriage existed above the individual the marriage institution enjoyed priv-
ileges that placed it literally above the law. The privileges marriage received
centered around the formative principle of marital unity. One spouse could
not commit larceny against the other, nor could they commit conspiracy
together against a third party, since both crimes implied a separate exist-
ence. Beyond their adherence to the doctrine of marital unity, early courts
shielded marriage from scrutiny out of a seeming respect for the relation-
ship's sanctified nature. The result was the denial of criminality for hus-
bands who abused wives, as in an 1874 battery case: "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."23 By choosing to look the other way, the
courts established a privilege not for marriage as an entity but for the hus-
band as the marital rights bearer.
The sexual core of the marriage contract defined the central immunity
marriage provided husbands-their "conjugal right." This sexual right illu-
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 that in the 20th century sex and sexual passion did become more important to
lawmakers' (and the general) conception of marriage.
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, Cases"); State v. Oliver, 70 N.C. 60 (1874).
minated the connection between marriage's sexual purpose and the unity
theory in marriage doctrine. Marriage's sexual purpose held that man owned
a natural sexual authority over woman morally set free in marriage. Marital
unity dictated that man subsumed his wife's legal existence at marriage. The
husband, then, legally claimed the wife's sexual identity at marriage. In the
17th century, Sir Matthew Hale, the Chief Justice of England, codified this
sex right in the marital rape exemption: "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."24 This theory allows the husband to claim not
just his wife's body in basic terms. By claiming at marriage her right to
consent, he claims her sexual will, her control in law both physical and
mental over her sexuality.25 This exemption defined the sexual meaning of
the marriage contract and is also one origin of its legal privilege.
Carole Pateman has critically reviewed this privilege and the contract
that engendered it. She defines the marriage contract as a "sexual contract"
and labels the husband owner of the sexual right within that agreement.
According to Pateman, the "sexual contract" represents the untold half of
the original social contract's theoretical creation.26 Although the sexual and
social contracts make up two halves of this original pact, their meanings
diverge along gender lines. Pateman argues that male sexual rights are em-
bedded in the concept of individual freedom that structures social contract
theory. This kind of individual freedom for men necessitates sexual slavery
for women: "Men's domination over women, and the right to enjoy equal
sexual access to women, is at issue in the making of the original pact. The
story of the social contract is a story of freedom; the sexual contract is a
story of subjection."27 She thus acknowledges the dialectic of rights inherent
in the contract as one of sexual sovereignty and subjugation.
Pateman defines the individual as owner of sexual property in another
person. I use her definition of marriage as a sexual contract to outline the
24. Lord Chief Justice Sir Matthew Hale, 1 The History of the Pleas 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).
significance of my story in legal history and to identify the husband's iden-

tity in Anglo-American law. I also accept her subsequent marital equation
which juxtaposes the husband's objective ownership with the wife's sub
jected sexuality. But while I accept that these identities have been tradi
tionally basic to the marriage contract, I reject the inevitability of the
equation. I suggest that the overturning of the marital rape exemption h
altered the fundamental dialectic of rights in marriage that Pateman de-
scribes. The exemption had codified, and therefore symbolized, the ma
right that, for Pateman, defines the husband within the marriage contract-
his sexual right. By denying him his legal right to his wife's body, the legis-
lation symbolically robbed the husband of his status as an individual in
Pateman's terms. Overturning the marital rape exemption broke the foun
dation of the husband's patriarchal identity, nominally abolishing the sexual
aspect of the original pact.
Chiseling away Coverture
We have seen that legal scholars of the 19th century justified the wife's
absence from the law, and the theory of marital unity that dictated tha
absence, by finding its origin in natural law. Nineteenth-century feminists,
including Elizabeth Cady Stanton, John Stuart Mill, and William Thomp-
son, responded by using the same justification to attack the marriage con
tract.28 These feminists claimed that women are not intrinsically inferio
but are men's natural equals endowed with the same natural rights:29
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 th
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 whic
activists during the 19th- and 20th-century women's movements (the nonlegal "cultural" in
fluences 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 particu-
lar, legitimized and, in so doing, maintained many of the power inequalities they fought t
destroy. By redefining the legal status of husband and wife in their own terms, both move-
ments tried to take the instrument of hegemony away from "male authority" and use it t
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 "leg
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, Con
tested 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 lega
arena.
The individual may be put in the stocks, body and soul, he may be
dwarfed, crippled, killed, but his rights no man can get; they live and
die with him.... These axioms prove that woman's poverty does not
add to man's wealth, and if, in the plenitude of his power, he should
secure to her the exercise of all her God-given rights, her wealth could
not bring poverty to him.30
By insisting that women possessed an individuality and independence under

natural law, Stanton exposed the injustice of the marriage contract's une-
qual distribution of rights. Stanton then used the language of abolitionism
to argue this inequality:
The wife who inherits no property holds about the same legal position
as does the slave of the Southern plantation. She can own nothing, sell
nothing. She has no right even to the wages she earns; her person, her
time, her services are the property of another.31
Under marital coverture, these early critics felt the wife became a piece of
property. The 19th-century feminist conception of the wife as property was
different from, and potentially broader than, Pateman's idea of the wife as
sexual subject. The husband had economic, political, social, and physical
ownership of his wife. He represented a kind of domestic master, while she
resembled a domestic slave.
The woman's rights movement as well as evolutions in marriage law
made equality between the sexes an increasingly salient position in 19th-
century legal discourse. Historian Marylynn Salmon depicts the emergence
in the early 1800s of a wife's separate legal identity as illustrated by her
increased economic rights: "man no longer felt comfortable with laws that
placed women in a helpless position with regard to property, and the
women, according to Stone, were making 'increased claims ... for sharing
power.' Stone noted the connection between the decline in patriarchy and
the rise of separate estates."32 Michael Grossberg reveals the wife's growing
independence in the context of late 19th-century family law: "As the main
family beneficiaries of the rights consciousness embedded in republican
legal ideology, married women came to be considered as a quasi-independ-
ent class with particular claims on the conscience of the courts."33 As wives
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 DuBois, 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
gained an independent identity, the principle of marital unity prov

creasingly untenable. The dialectic of rights created in the principle of m
ital unity fell to the vision of relative equality epitomized by
"companionate marriage."34 The normative conception of marriage in
ingly cast the husband and wife in separate but equal roles within
relationship.
By the 1930s, legal writers like Chester Vernier rejected the assump-
tion of sexual inequality embedded in marital unity. A vestige of the Black-
stonian tradition, the principle of marital unity to Vernier proved "a
misleading statement . . [unity was] not true even true at common law. It is
high time that it be given decent burial as one of the outworn relics of an
older jurisprudence."35 He recognized the rejection of the unity doctrine as
an effort "to equalize the rights of husband and wife."36 From these state-
ments we can conclude that legal discourse of the first half of the 20th
century nominally rejected the dialectic of rights in marital unity, present-
ing marriage as an institution of equality and companionship. Within this
just framework, the husband could no longer possess explicit privileges, and
the wife could no longer have explicit disabilities.
The Postwar Contradiction
By the postwar era, the conventional wisdom of legal thought rejected

the notion of marital unity. But while marital unity fell out of legal dis-
course, the sexual purpose of the marriage contract and the power hierarchy
that purpose established remained.37 In 1957, Perkins upheld the marital
rape exemption, the codification of this sexual dialectic of rights, just as
scholars had supported it a century earlier. Because legal discourse had offi-
cially rejected marital unity, the postwar rationales for the marital rape ex-
emption ignored the system of marital rights and duties that marital unity
supported. Instead their rationales highlighted the particularity of the mar-
riage institution. This tactic obscured, rather than rejected, the doctrine of
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 Family 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 ex-
plore here.
unity; it submerged the husband's sexual privilege inherent in the theory

under the sexual privilege that holy matrimony, as a transcendent institu-
tion, deserved. By arguing that marriage as an institution deserves legal priv-
ilege, these scholars denied that the institution granted that privilege only
to the husband. It was this contradiction that left the exemption ripe for an
attack.38
Not until the feminist movement of the 1970s, however, was the cru-
cial critique of the rights belonging to the reemerging individual in marriage
offered. The theory of 1970s feminism's sexual politics reintroduced into
gender discussion the existence of a dialectic of rights and highlighted that
dialectic in sexuality. The relationship between men and women in a patri-
archal society, feminists asserted, was one of domination and subordination.
Feminists from within and without the legal elite forced a legal community
that thought it had abandoned the system of subjugation a century before to
recognize and reject the sexual right men still possessed.39
II. DESTROYING THE EXEMPTION'S FOUNDATION
At the climax of John Galsworthy's 1908 novel The Man of Prope

Soames Forsythe rapes his wife Irene. Neither Galsworthy nor his pr
nist uses the word rape. Neither the author nor the character describ
incident. The reader learns of its occurrence only as Soames strugg
justify his behavior, assuaging his self-doubt with an assertion of man's
bridled appetite and the husband's legal authority: "Had he been rig
yield to his overmastering hunger of the night before, and break down
ance which he had suffered now too long from this woman who w
lawful and solemnly constituted helpmate?"40 Reflecting on his ac
Soames torments himself: "he was still haunted by the odd, intolerable f
ing of remorse and shame he had felt, as he stood looking at her b
flame of the single candle, before silently slinking away."41 But ultimate
knowing that the legal system condoned his behavior allows Soames
cape his guilt:
in the cool judgment of right thinking men, of men of the world, of

such as he recollected often received praise in the Divorce Court, he
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 dis-
course 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.
has but done his best to sustain the sanctity of marriage, to prevent her
from abandoning her duty . . . No, he did not regret it.42
Raping Irene not only proves his legal right but also defines his status as
husband; as Galsworthy writes: "The morning after a certain night on which
Soames at last asserted his rights and acted like a man."43 Faith in his se
right, as it is protected by law, transforms the guilt that both Soames an
the reader know exist into a validation.
Legal scholars writing on marriage would continue to protect Gal-
sworthy's 1908 husband from his guilt through the marital rape exemptio
for the next half-century. Unsupported by the traditional legal theory sur-
rounding marriage law and with it the orthodox definitions of "marriage
and "husband," the exemption looks today like a bare and brutal "license t
rape."44
The legal orthodoxy supporting the exemption begins with the 18th-
century definition of marriage as a contract to regulate sex or, more specifi-
cally, the male sex drive.45 Marital sex, as justified by legal writers, provided
a foundation for a moral framework of law which condemned extramarital
sex.46 One effect of this framework was to criminalize the nonmarital sex
acts of fornication, adultery, and seduction. Another was to privilege the
marital relationship in criminal courts. If not married to Irene, Soames
would have committed the crime of fornication and perhaps of rape. Within
the bonds of matrimony, Soames had "been right to yield to his overmaster-
ing hunger," since he had married to sanctify that release.
Just as marriage validated heterosexual sex, sex in turn confirmed, or
consummated, marriage, as Soames's rationale that he sustained marital
sanctity suggests.47 This legal logic allowed couples to perform sexual acts
only within marriage and implied that, within marriage, sexual acts must be
performed. This "confinement" of sex to marriage necessitated the hus-
42. Id. at 246.

43. Id. at 245.
44. David Finkelhor & Kersti Yllo, License to Rape 1 (New York: Holt, Rinehart & Win-
ston, 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 immoral-
ity, 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."
band's exclusive sexual right to his wife.48 The 18th-century principle of

marital unity formulated the exclusive sex right of the husband by granting
the husband authority over the wife's person economically and physically.49
Subsuming her person meant legally appropriating her will, sexually and
otherwise, as the legal presumption of coercion reveals.50 While marriage
purportedly served to regulate sex, "the restitution of conjugal rights" after
wives like Irene abandoned their duty defined its sexual precept.51 Soames's
use of this language of rights and duties reveals his sexual privilege embed-
ded in the theory of marital unity and the sense of that privilege in male
thought.
By the 1950s, Soames's rationale appeared anachronistic to the legal
community. Because 19th-century feminists like William Thompson, John
Stuart Mill, and Elizabeth Cady Stanton had critically compared the wife's
legal nonexistence under coverture to slavery and because the ideal of the
"companionate marriage" had created a cultural expectation of equality in
marriage, assertions of the husband's literal right to his wife's person had
fallen out of legal discourse.
But mid-century scholarship on rape still upheld its marital exclusion.
Legal writers rejected the dialectic of rights embedded in the "implied con-
sent" justification for the marital rape exemption as an archaic statement of
wives' powerlessness.52 Instead they sought their rationale in the distinction
between marital and nonmarital sex. Inevitably, declaring the wife legally
independent while still maintaining a distinction between rape and mar-
riage created a contradictory argument requiring hollow justifications, for
the marriage contract's orthodox purpose to "confine" sex within its moral
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 refor-
mulation 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 cohabita-
tion 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."
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."
boundary created the rift to which mid-century scholars clung. This

differentiation between intercourse in and out of wedlock engender
legal sex right hither to delineated in the principle of marital unity
they claimed to reject. While the egalitarian language of the mid-20t
tury obscured the system of rights and duties beneath the marital r
emption, in official discourse the legal elite remained true to the hu
sex right by guarding marriage's privileges.
Rejecting marriage's system of rights and duties even as they u
the sex right embedded in the exemption, postwar legal writings on
riage manifested an inconsistency that both reflected the decay and
pated the deconstruction of the marital rape exemption's orthodox d
Legal scholar Rollin M. Perkins epitomized the exemption's vulnerab
In a number of works published between 1957 and 1972, he defende
marital rape exemption, emphasizing the moral/legal distinction bet
marital and extramarital sex. In upholding the exemption, he reject
wife's "implied consent" because it signified her legal forfeiture of self
since abandoned in official discourse. But his rationale that "the true
why the husband, who has sexual intercourse with his wife against her w
is not guilty of rape, is that such intercourse is not unlawful" adhe
marriage's privileged position in law as supported by marital unity.53
Perkins stood on the brink of marital privilege's deconstruction with
the legal elite. During the 1950s and 1960s, the American Law Inst
drafted a reformist Model Penal Code, which rejected the legal disti
between heterosexual intercourse and "deviate" sexual acts in and o
wedlock. Crimes like fornication and adultery, based on the moral co
nation of extramarital sex, fell out of the Penal Code along with th
tinction. Still, the Penal Code upheld the marital rape exemptio
Code's morally slanted vision of rape and its assertion of marriage's m
right to privacy reflected the ALI's peculiar traditionalism. On the c
the 1970s women's movement, we can identify this traditionalism, st
of its theoretic support inherent in the regulation of sexuality, as an un
cealed male sex right.
Perkins and the Modernization of the Exemption
Perkins' argument reflected the changes in legal discourse on mar

during the first half of the 20th century. Nineteenth-century feminist
ques which likened marriage to slavery, and the more mainstream de
for legislative reform of the marriage contract had robbed marital unity
legal credibility. Using a rhetoric that compared wives to property
19th-century reformers characterized the origin of the wife's legal iden
53. Perkins (1957) at 115.
marital unity, as a doctrine of subordination. In 1957 Perkins illustrated the

spirit of modernity which denounced certain rules of coverture. Presuming a
separate identity for wives in criminal courts, he dismissed the doctrine of
coercion as a vestige of antiquated marriage orthodoxy: "While this prima-
facie presumption of coercion is perhaps still the 'orthodox' view, the trend
against it is so obvious and so persistent as to forecast its eventual disappear-
ance."54 He simultaneously rejected both a husband's right to dominate and
a wife's duty to obey which the presumption had implied:
"We conclude, then, that the reign of the thousand year old presump-
tion has come to an end. In our society where almost no bride promises
to obey her husband, and where it is not accepted as the usual that a
wife does what her husband wishes by way of yielding obedience to a
dominant will, the basis for the presumption has disappeared."55
According to Perkins, marriage in the postwar era represented a contract

between equals.
The 1950s reevaluations nominally rejected the construct of marital
unity and paid lip service to the wife's right to physical self-sovereignty.
Arguments in Perkins's 1957 casebook and in an anonymous 1954 Stanford
Law Review article seemed to reject the husband's sex right in marital unity
by denying the theory of "implied consent" which protected that right. Both
works argued that wives possessed wills distinct from their husbands' wills
which the law must recognize. Perkins's treatise on criminal law deemed
Hale's denial of women's independent will irrational: "This type of explana-
tion by means of 'double talk' is definitely out of date."56 The 1954 Stanford
Law Review article acknowledged wives' right to refuse sex, denying the
wifely "duty" earlier scholars had taken for granted.57 The husband's "conju-
gal right" remained absent from the new vision of marriage:
It is unreasonable to infer that a wife intends to make her body accessi-

ble to her husband whenever he wants her. By marrying she indicates
that usually she will consent to intercourse, but she also probably be-
lieves that she can expressly decline the act at any given time.58
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 Stan. L. Rev. 719 (1954).
The Stanford Law Review article asserted that criminal justice should protect
wives' right to bodily integrity: "the doctrine, if consistently applied, might
deprive a married woman of needed protections of the criminal law. If the
physical act of sexual intercourse cannot be rape because 'consented' to,
neither can the intercourse be battery, since that crime, too, is negatived by
'consent.' 59 In this view, wives were not their husbands' subordinates but
were free actors with rights of their own.
Still, the sexual privilege codified in the marital rape exemption
proved harder to reject for 20th-century scholars than those rights obviously
overturned by the Married Women's Property Acts. Despite their embrace
of earlier feminist rhetoric, the writers of postwar reevaluations of the mari-
tal rape exemption substituted modernized defenses of the male sex right for
the "implied consent" theory. Their arguments supporting the exemption
now rested on a psychological, legal, and implicitly moral distinction be-
tween sex in and out of marriage. The authors of the Stanford Law Review
article, who in 1954 wrote a legal analysis of the marital rape exemption,
assumed that inside marriage forced sex proved less harmful than it did
outside that relationship: "Presumably the parties have at times been very
intimate, and the possibility of serious social, physical or mental harm from
a familiar, if unwanted, conjugal embrace are rather small."60 By diluting
forced sex within marriage as an "unwanted conjugal embrace" while dram-
atizing it outside of marriage as a "highly brutal impulse," the article
presented nonconsensual marital sex as comparatively conscionable and es-
sentially licit.61 By manipulating language, the article identified assump-
tions about nonconsensual sex inside and outside marriage as "common
sense" rather than orthodox marriage theory.
Although the Stanford Law Review article masked its support of the
dichotomy between sex in and out of marriage, it rooted this rationale in
the legal, and necessarily moral, sanction of marital sex. It reads:
Moreover after an informal parting of the ways a husband acts in a

socially approved manner in soliciting sexual intercourse with his
wife.... Forcible rape between unmarried persons is the culmination
of a desire whose very inception is disapproved; between married per-
sons it is a loss of control over an explosive but encouraged situation.62
This moral/legal line between marital and extramarital sex, not "common
sense," represented the crux of its argument. For Perkins, this same legal
distinction negated the husband's criminal liability. He wrote: "The true
reason why the husband, who has sexual intercourse with his wife against
59. Id. at 722-23.

60. Id. at 724.
61. Id.
62. Id. at 725.
her will, is not guilty of rape is that such intercourse is not unlawful." Both
arguments proved circular, building on an outgrowth of Blackstone's marital
orthodoxy while rejecting its foundation.
By dissecting this implicit adherence to the origin of marital unity, I
can unravel the postwar authors' inability to reject its sexual privilege.
Blackstone defined marriage as the confinement of the male sexual instinct
within a moral framework; this definition made marital sex immutably "law-
ful." The sexual purpose of marriage implied a male sex right because to
refuse sex would "subvert the true ends of marriage."3 The husband's legal
appropriation of the wife's sexuality flowed directly out of this definition,
casting the wife as the sexually exclusive and obedient partner.64 Out of
these roles, the husband's sexual privilege was born. Because the contract
was at its foundation sexual, this privilege was the husband's most basic
marital right.65 Postwar legal discourse could overturn the marriage ortho-
doxy's economic and criminal tangents but not its sexual core.66
Perkins's approach to sexuality regulation outside of the marital rape
exemption further revealed his belief in the husband's sexual privilege.
Describing criminal "offenses against morality and decency," he highlighted
the legal/moral line between marital and extramarital intercourse. The
crime of fornication included all "illicit intercourse," defined as any sex be-
tween persons not married.67 For Perkins, the law needed to confine only
the wife's sexual activity, nominally to avoid illegitimate children: "If the
female party to illicit intercourse was married this might tend to introduce
spurious offspring into the home, but this could not result if the only mar-
ried party was a man."68 Even if we were to accept this rationale as the real
one, we must recognize that this law of adultery in practice granted hus-
bands both sexual liberty and, by confining wives' sexual license, exclusive
sex rights in their wives. Because Perkins assigned this definition of adultery
to the common law, it proves difficult to separate it from the regulation of
the male sex right within the common law doctrine of marital unity. The
common law defined adultery as the violation of a husband's "exclusive

64. See Joel P. Bishop, 1 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 con-
junction 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.
right" to his other half.69 While Perkins did not define adultery
terms, his gendered interpretation of adultery hinted at such an o
sex right. This implication uncovered the theoretic origin in marit
of the sexual privilege he supported in the marital rape exemption
Perkins's condemnation of nonmarital sex narrowed his percept
rape as much as it allowed him to retain an idealized image of marr
Perkins, rape meant the moral violation of women's chastity, or "f
integrity," and was an assault the unchaste could not feel: "But to
sexual intercourse with a prostitute without her consent as an 'ou
her person and feelings' is in the nature of mockery."70 Prostitutes, h
lost the sexual purity the law sought to protect, were beyond the
legal protection. Imposing moral language on his description of ra
Stanford Law Review article similarly associated rape with women's cha
"It is the supreme insult to feminine integrity."71 To the Stanford wr
rape implicitly meant the theft of "purity," presuming that its victim
unmarried virgins: "At least historically, it has had great importance i
stroying the acceptability of an unmarried girl as a bride."72
Underlying the authors' condemnation of rape lay a blanket co
nation of sex outside the sanctity of marriage. Footnoting Freud, t
ford Law Review article assumed that rape laws protected women's
in order to safeguard a future husband's right to sexual exclusivit
demand that the girl shall bring with her into marriage with one
memory of sexual relations of another is after all nothing but a logical
sequence of the exclusive right of possession over a woman which
essence of monogamy."73 I trace the husband's "exclusive right" to
trine of marital unity. The Stanford Law Review article's claim that th
statute protected women from sex "against their will" proved contradi
as the principle of marital unity granting husbands sexual privilege fo
both authors' conceptions of the crime.74 As both Perkins and the S
Law Review article discussed rape as merely the robbery of chastit
supported a moral imperative to engage only in marital sex. This n
defined marriage in Blackstonian terms-around the sex act. This
construct engendered the male sex right they claimed to reject, for it,
69. McCurdy quotes an 1883 case defining the husband's civil cause of action
wife's adultery. The description reveals the connection between Perkins's version of a
and the orthodox vision of marital right and duty: "The essential injury to the husba
sists in the defilement of the marriage bed, in the invasion of his exclusive right
intercourse with his wife, and to beget his children." William Edward McCurdy, Case
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 c
law textbook, see Mary Irene Coombs, "Crime in the Stacks, or A Tale of a Text: A
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.
bined with marital unity, explained and supported the doctrine of "implied
consent." We recognize the paradox in the scholars' rationales as they tried
to uphold the exemption outside of the construct which created it.
The Model Penal Code
Perkins's contemporaries at the American Law Institute (ALI) began

drafting a uniform state penal code in the early 1950s, concluding it in
1962. This code encouraged states to revise their presumably obsolete crimi-
nal statutes. The ALI, a group of eminent legal scholars and practitioners,
suggested in their Model Penal Code revisions ranging from modernized
language to the omission or refocus of whole ordinances. Particularly rele-
vant for our purposes are the debates within the ALI with regard to laws
regulating adult sexual activity. The 1948 and 1953 Kinsey reports on the
sexual activity of men and women proved to the ALI reporters that laws
regulating private consensual behavior were obsolete both practically and
conceptually.75 The English debate between Lord Justice Devlin and H. L.
A. Hart over the principal of outlawing private immorality inspired the ALI
to remove sanctions against adultery, fornication, and deviate, but consen-
sual, sex.76
Marriage's slipping protections under the criminal law offer us a frame
for analyzing these debates and the reforms the ALI proposed in their Model
Penal Code. Ultimately, the ALI refused to enforce the morality that had
drawn the line between heterosexual, marital sex and the rest. That line
supported the doctrine of marital unity and, in my analysis, the marital rape
exemption. In obscuring the moral division between marriage and fornica-
tion, the Code's drafters undid Perkins's rationale for the marital rape ex-
emption, as well as the traditional marriage doctrine from which the
exemption sprang. The ALI removed some of the vestiges of marriage or-
thodoxy to which Perkins clung, leaving the sex right codified in the mari-
tal rape exemption exposed.
The Model Penal Code as a Progressive Text
The Model Penal Code went further than Perkins's casebook in treat-
ing husband and wife as separate individuals under the criminal law. The
Code made no mention of marital coercion or other stipulations of cover-
ture in criminal law, all particularities of marital unity that Perkins had
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").
admitted appeared outdated but still considered important enough

to describe.77 More importantly, the Code undermined the moral ortho
to which Perkins clung in upholding the marital rape exempti
Code's rejection of adultery and fornication as crimes abandoned Pe
legal condemnation of extramarital sex. This abandonment complem
the Code's revision of "deviant sexual conduct" crimes. The ALI furt
relinquished moral guardianship as a legitimate role for the penal sy
it defined the criminal criterion of "deviate" acts as force, rather th
morality. Despite these reforms, like Perkins, it maintained the marita
exemption.
The Model Penal Code advocated decriminalizing the crimes of adul-
tery and fornication for both practical and theoretical reasons. In practice,
the Code recognized that regulating private immorality proved both ineffec-
tive in and detrimental to the penal system. The Code's 1980 revised com-
mentary referred to the debates of the 1960s over the prosecution of these
laws:
Continuing fornication and adultery as criminal offenses without a

commitment to enforcement would lead to the several evils discussed
earlier . . . abusive prosecution, selective enforcement, official extor-
tion, blackmail and other forms of private coercion, and general disre-
gard for the penal law.78
The ALI based the latter prediction of "disregard for the penal law" on the
findings in the Kinsey report, which was widely circulated by the time of
the 1955 draft. The ALI's Code detailed the prevalence and consequent
lack of effective prosecution for illicit consensual sex:
A large proportion of the population is guilty at one time or another of

this breach of sexual mores. Kinsey reports that one-half of the married
males and one-fourth of the married females commit at least one adul-
terous act during married life.... Pre-marital intercourse is also very
common and widely tolerated, so that prosecution for this offense is
rare.79
These practical concerns created ideological challenges to the ortho-

dox vision of marriage. The recognition and acceptance of both adultery
and fornication in legal discourse demystified the common law theory of
marital unity. The Kinsey statistic asserting that a quarter of married women
engaged in extramarital sex debunked the husband's and wife's spiritual
77. Perkins (1957) at 574.

78. ALI, Model 1980 at 437.
79. American Law Institute, Model Penal Code, Tentative Draft No. 4 (1955), from Kad-
ish & Paulsen, Criminal Law.
unity, consequently undermining the legal reflection of that ideal. The

prevalence and, more important, the tolerance of fornication raised similar
theoretical questions. These same factors tended theoretically to blur the
ethical line between marital and extramarital sex under the law.
The practical questions concerning the regulation of sexuality ex-
panded into more conceptual arguments. Unlike Perkins, the ALI rejected
the idea of controlling private immorality as a function of penal prosecu-
tion: "The Code does not attempt to use the power of the state to enforce
purely moral or religious standards. We deem it inappropriate for the gov-
ernment to attempt to control behavior that has no substantial significance
except as to the morality of the actor."80 The ALI embraced the theory
behind the 1957 English Wolfenden Report, the authors of which argued
that the penal system theoretically regulates individuals' behavior to protect
other individuals from that misconduct, rather than to confine supposed
immoral behavior generally.81 Viewed from this perspective, we can see how
laws against extramarital sex proved both unconstitutional and outside pe-
nal jurisdiction:
assigning criminal punishment to instances of private immorality can

justly be regarded as an invasion of personal liberty. Coercive state ac-
tion against a particular individual may be necessary to prevent injury
to other persons, to guard them in the secure possession of their prop-
erty, and to further the interest of all citizens in the unobstructed work-
ings of their government. The extension of penal sanctions to
perceived sexual misconduct between consenting adults cannot be de-
fended on such grounds.82
The ALI's code treated sex outside of marriage as a moral wrong but
protected it as a legal right. This action destroyed Perkins's pivotal distinc-
tion between lawful and unlawful intercourse. By dismantling this legal dis-
tinction, the Code discredited the orthodox purpose of marriage which had
established the distinction in Anglo-American law. If marriage's purpose
was not to sanction sex legally (that is, morally) the husband's sex right
stood unjustified.
80. American Law Institute, Model Penal Code, Tentative Draft No. 4 (1955) 4 (Philadel-
phia: American Law Institute, 1956) ("ALI, Model Code, Tent. Draft 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.
While this relationship between sex crime reform and marriage theo
may appear logical to us today, the Penal Code's reconception of the
tionship proved less radical. We must recognize that the authors d
dismiss adultery as a crime because they specifically disapproved of
distinctions between marital and extramarital sex. Rather, the ALI v
the marriage contract as "the most attractive rationale of this sort" for
criminalization of adultery.83 The justification in this context, how
stood within an interpersonal rather than a moral framework: "In this v
a law against adultery might be justified not as an attempt to legisla
vate morality in the context of a 'victimless' crime but rather as an effo
protect the legitimate interest of individual citizens in preservation of t
marriages."84 Although the Code's authors considered the preservat
marriage to be a salient goal, their rejection of adultery as a moral o
still denied Perkins's sexual distinction in law.
In its revision of "deviate sexual intercourse" crimes, the ALI rep
immorality with force as the criminal criterion for these sex off
Although the prejudicial title "deviate" still described sodomy, oral
course, and bestiality, the ALI dropped the moral condemnation of
acts that Perkins had maintained. The crime in these activities res
their forced nature rather than in their deviance: "Section 213.2 o
Model Penal Code makes a fundamental departure from prior law in e
ing from criminal sanctions deviate sexual intercourse between conse
adults."85 This revision implied a further blurring of the moral/leg
between nonmarital and marital sex: "This policy applies to the var
styles of sexual intimacy between man and wife and to sexual relatio
tween unmarried persons, regardless of gender."86 The commentary
guished extramarital deviate intercourse only to reaffirm its legalit
dismissing the traditional prohibition against it:
The wrong, if one exists, arises from the fact of sexual intimacy ou
wedlock and not from the kind of conduct with which gratificat
achieved. In other words, application of sodomy statutes in this
text really involves only a variant of adultery or fornication.
Model Penal Code includes no penal provision against adulte
fornication.87
83. Id. at 438.

84. Id.
85. Id. at 362.
86. Id. at 363.
87. Id. at 365.
The Exemption Remains
Although the ALI rejected the crimes in "unlawful" consensual sex, it

did not wholly reject marriage's privileged position in the law which Perkins
and others had guarded. In fact, the contradictions the ALI maintained
when upholding the marital rape exemption ran deeper than those para-
doxes in Perkins's casebook and the Stanford Law Review article precisely
because the ALI presented the Code as a progressive text. The juxtaposition
of reformist and orthodox legal theory in the Model Penal Code illustrated
an enhanced version of Perkins's paradoxical rejection of and reverence for
the doctrine of marital unity.
Although they had undermined the moral basis for the marital rape
exemption by renouncing fornication and adultery as crimes and by replac-
ing immorality with force as the criterion for sexual deviancy, the ALI draft-
ers did not see the implication of their reforms. The Model Penal Code
upheld the exemption explicitly in its definition of rape: "A male who has
sexual intercourse with a female not his wife is guilty of rape if... ."88 The
ALI's 1980 revised commentary to the Code located Perkins's argument as
the Code's precedent justification: "The term 'unlawful' served the function
of excluding cases where the actor and the victim were married to each
other."89 Footnoting Perkins's 1969 text, the 1980 commentary solidified
the connection between Perkins's text and the Model Penal Code. The
ALI's 1980 use of Perkins's rationale exposed the limitations and contradic-
tions inherent in the ALI's penal reform. The law, under its analysis, could
not prohibit certain consensual sexual activities, like fornication and adul-
tery, simply because these activities opposed ethical norms. Consequently,
the law should not have distinguished between the right or wrong, the law-
fulness or unlawfulness, of consensual sex acts in and out of marriage. But,
the marital rape exemption explicitly rested on this rejected distinction.
Given this logic, we can assume that the exemption should not have sur-
vived in the Code.
The exemption's expanded definition in the Model Penal Code both
problematized and illuminated this conflict. The ALI defined the "wife" in
loose legal terms: "Wife includes a woman over 16 who has been living with
the accused as his wife at the time of the alleged offense, regardless of the
legal status of their relationship."90 Rather than discrediting the marital rape
exemption, blurring the line between married and unmarried couples ex-
panded the application of the exemption in the minds of the Code's au-
thors. This interpretation of the exemption revealed most clearly the legacy
of "implied consent" in postwar legal discourse. The ALI could not, if
88. Id. at 274.

89. Id. at 275.
90. ALI, Model Code, Tent. Draft No. 4 at 91 (cited in note 80).
pressed, have defended the exemption's expansion with Perkins's ar

because Perkins's rationale depended on strict distinctions between
fully wed and unwed. All other rationales specific to the marriag
tract-the goals of reconciliation and marital privacy-would have
similarly useless.91 The most convincing argument for developing the
nity in this way would have been Hale's theory of "implied consent
have seen, this 17th-century rule asserted that by consenting to enter
marriage-a sexual relationship-a woman implies consent to sex th
out the duration of that relationship. The ALI's interpretation of
simply modernized Hale's doctrine, applying his theory to a world
many couples lived in quasi-marital relationships, performing w
once, but no longer, illegal fornication.
By 1980, the Code's revised commentary included a five-page h
cal review and critique of the marital rape exemption. The comm
rejected both the Halian justification of "implied consent" and its o
justification of marital sex as uniformly "lawful": "Neither of these ra
izations is entirely satisfactory. The former is essentially fictive, for
no reason why agreement to enter a relation of intimacy necessaril
consent to intercourse on demand. The latter explanation simply b
question.92 But in 1962, the official draft of the Model Penal Co
maintained the marital rape exemption using little more than a pro
footnote. The tentative draft of the Code written in 1955, and cont
1962, commented simply: "Coercion of a wife to submit to conju
brace is not rape under existing law."93 The 1955 draft cited Hal
though Perkins had discredited Hale's rationale in 1957. One year
the Stanford Law Review article had also jeopardized the Halian justific
During the drafting of the Code, the rationales of Hale and Perkin
ently seemed interchangeable to the ALI.
Whether the Code's authors used Hale or Perkins proves incons
tial to understanding why they maintained the exemption. The AL
bly used Hale because the law had always used Hale, without cons
the exemption's legal kinship to the theory of marital unity their coll
had long since repudiated. In 1980, legal hindsight probably prove
would have in 1955 had anyone probed, Perkins's justification to be
agreement with modem language surrounding marriage. But the
changeability of these professedly different rationales and the con
lack of consideration the ALI gave to the marital rape exemption highl
how limited marital unity's decay was in legal scholars' minds just befo
women's movement. To these scholars, although their predecessors
91. At this point in my story, marital privacy simply refers to the age-old desire
marital discord from the criminal courts.
92. ALI, Model (1980) 343.
93. ALI, Model Code, Tent. Draft No. 4 at 295.
jected other husbandly powers, the sex right remained fundamental to mar-
riage. To deny it would have demanded that they redefine "marriage" and
"husband" to eliminate the former's basic sexual purpose. I argue that before
the 1970s feminist movement had offered its crucial critique of gender ine-
quality, the legal elite simply could not conceive of redefining marriage in
this way or, consequently, of renouncing the marital rape exemption.94
Privacy as a Modem Marital Privilege
By the 1960s, sex no longer necessitated marriage under law. The law
in 1960 accepted that wives possessed separate economic and political iden-
tities, that teenagers engaged in premarital sex, and that one quarter of
America's wives cheated on their husbands. Legal scholars could not, how-
ever, imagine prosecuting a husband for forcing his wife to engage in "sanc-
tified" sex on the conjugal bed. Before 1965, that privilege simply meant
the law's age-old desire to shield marriage from the criminal courts.95 In
1965, the U.S. Supreme Court established that privilege as the constitu-
tional right to marital privacy.96
I can see seeds of the privacy right in the ALI's treatment of sex crimes
in its Code. The ALI's refusal to regulate sexuality revealed a desire to free
married and unmarried persons from criminal prosecution under sex crime
laws. Invasion of marital privacy was one of the ALI's prime concerns in
94. One theory about why the postwar legal elite did not reject the marital rape exemp-
tion 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 culmi-
nation 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 con-
scious 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 protect-
ing 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).
this decision. The ALI's recommendation to allow consensual deviate

course rested, in part, on the fear that existing sex crime laws "reac
the very privacy of the marriage chamber to punish husband and wi
depart from its standards."97 The 1980 revised commentary reveale
legal elite's growing fear that the state was penetrating that very p
sphere:
While it is difficult to see that non-standard sexual intimacy between

spouses occasions any harm of which the state properly might take cog-
nizance, it is easy to identify criminal sanctions for such conduct as
inconsistent with the societal goal of protecting the marital relation-
ship against outside interference. Indeed, it seems likely that the newly
enunciated constitutional right of marital privacy extends to all forms
of consensual sexual activity between husband and wife.98
Regarding consensual sexual acts, this right to privacy is incontestable. But

the fear of intrusion extended to nonconsensual intercourse, denying wives
state protection against forced sex acts. Following the Model Penal Code
and the spousal exclusion for sex crimes it upheld, many states inserted mar-
ital exemptions into their sex crime laws for both consensual and noncon-
sensual acts that nominally aimed to protect this "privacy."99
The 1965 Supreme Court case Griswold v. Connecticut established the
legal priority of marital privacy as a constitutional right. The decision en-
sured a married couple's right to use contraceptives under the interpreted
right to privacy that the Bill of Rights promises: "Various guarantees [in the
Bill of Rights] create zones of privacy."'00 This opinion originated with Jus-
tice Harlan's dissent in the 1961 Supreme Court case of Poe v. UUman.101
The opinion in Poe based the right not on a new interpretation of marriage
but on its traditional definition as a sanctified relationship: "The home de-
rives its pre-eminence as the seat of family life. ... Of this whole 'private
realm of family life' it is difficult to imagine what is more private or more
intimate than a husband and wife's marital relations."102 The majority of the
Court in Griswold concurred with this transcendent image of marriage:
We deal with a right of privacy older than the Bill of Rights . . . older
than our political parties, older than our school system. Marriage is a
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. Bartlett, Family Law: Cases, Texts,
Problems 852 (2d ed. Charlottesville, Va.: Michie Co., 1991) ("Ellman et al., Family Law");
Griswold v. Connecticut, 381 U.S. 479 (1965).
101. Ellman et al., Family Law 854-55; Poe v. Ullman, 367 U.S. 497.
102. Ellman et al., Family Law 854.
coming together for better or for worse, hopefully enduring, and inti-
mate to the degree of being sacred.'03
While Griswold decided an issue unrelated to rape, Justice Douglas's

language paralleled Perkins's rationale for the exemption. Both men rooted
their arguments in the orthodox interpretation of marriage as the "sanc-
tifier" of sex. Justice Goldberg reserved the right to privacy for marriage,
redrawing the line between marital and nonmarital sex that the ALI had
rejected, while affirming marriage as a privileged contract:
Adultery, homosexuality and the like are sexual intimacies which the
state forbids ... but the intimacy of husband and wife is necessarily an
essential and accepted feature of the institution of marriage, and insti-
tution which the state must not only allow, but which always and in
every age it has fostered and protected. It is one thing when the State
exerts its power either to forbid extra-marital sexuality . . . or to say
who may marry, but it is quite another when, having acknowledged a
marriage and the intimacies inherent in it, it undertakes to regulate by
means of the criminal law the details of that intimacy.104
While the Griswold decision did not set a viable precedent supporting
the marital rape exemption, it reflected the legal elite's attitude favoring
noninterference in marriage. Whether Griswold proved progressive or re-
pressive in its sanction of marital privacy, the courts would protect marriage
under the criminal law as an institution distinct from other relationships, a
privilege that overlapped with the maintenance of the marital rape exemp-
tion even during 1960s legal reform.
Summary: Where the Exemption Stood on the Brink of the

1970s
The wife's increasingly independent legal identity and, more impor-

tant, the decreasing privileges awarded to husbands cracked the economic
authority husbands possessed. The legal elite repudiated the principle of
marital unity and the husband's explicit rights over his wife. Ironically,
however, reform did not challenge the sexual base of that marriage ortho-
doxy. The contradictions inherent in postwar efforts to uphold the marital
103. Id. at 853; Griswold v. Connecticut, 381 U.S. 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 consen-
sual and nonconsensual circumstances-i.e., the codification of marital exclusion for rape and
other forms of sexual assault.
rape exemption-the codification of that base-within the egalit

rhetoric of discourse on marriage resulted inevitably from this uns
traditionalism.
The authors of the Model Penal Code kept the exemption be
they could not conceive of rejecting it, not because postwar legal
justified it. Wives were not their husbands' chattel anymore, but sex in
riage was still a private and ethical issue. The implication remained
men married, among other reasons, to have ethical sex in the p
sphere. Resting on these traditional principles, the marital privacy id
called the Blackstonian purpose of marriage.
The expressions "implied consent," "lawfulness," and "marital pr
as they appeared in postwar legal discourse represented expressions o
marriage orthodoxy. Between the time of Hale and the Model Penal
the traditional support for the marital rape exemption-the theory of m
tal unity-had crumbled under scrutiny from both inside and outside
cial legal discourse. Hale, in his theory of "implied consent," could
outright the dialectic of rights inherent to the marriage contract. B
the modem legal elite claimed to have long since rejected marital unit
consequently "implied consent," the later rationales hid that inequali
hind the sanctity of the institution. But from Hale in the 17th cent
the ALI in 1962, the rationale behind the exemption and its meanin
husband's sex right-remained essentially the same.
Not until the 1970s, however, was the marital rape exemption rip
an attack. After scholars had stripped the exemption of its theoretic fou
tion-the legal regulation of sexuality in general and marital unity i
ticular-certain changes within the legal discourse had only to discred
thin shroud of marital privilege in order to reveal the sex right beneath
But it was 1970s feminism's critique of gender inequality in sexualit
discredited the exposed sex right in the minds of the legal elite. As m
privilege continued to decay under the pressure of the women's moveme
this critique made marital rape exemption look more and more, to a
community that thought it had rejected marriage's dialectic of rights a
tury earlier, like an unjust right to dominate.
III. THE FALL OF THE EXEMPTION
To understand how the legal elite came to reject the privilege

had distinguished marriage in law, we now turn to changes that oc
both inside and outside that elite in the 1970s, for these changes ch
those privileges. Changes from within the legal community began w
debate over instituting no-fault divorce laws in the late 1960s. Divo
form further undermined the marital unity principle in legal theo
1971 Supreme Court case of Eisenstadt v. Baird continued this pro
challenging the flip side to the unity theory-the principle of marital

privacy.105
But it was two intertwined revolutions from without that played the
crucial role in discrediting first marital privilege and, ultimately, the marital
rape exemption within the legal community.06 The feminist and battered
women's movements attacked legal conceptions of rape on the one hand
and marriage on the other. In their attacks, the theories that had ensured
men, specifically husbands, physical rights over women, specifically wives,
came under political scrutiny.'07 Because women began to enter the legal
profession in larger numbers during the 1970s, these political critiques also
emerged within the legal community.
As feminists dismantled the male sex right that had formed the terms
"rape" and "marriage," they rebuilt these terms using their own idealized
gender structure of equality. Recalling Elizabeth Cady Stanton's cry for self-
sovereignty a century before, 1970s feminists championed women's physical
autonomy-their right to bodily integrity-in their fight for sexual equal-
ity. Like its 19th-century predecessor, the women's movement attacked
male privilege in the law, employing the rhetoric of property in their claim
for self-ownership.108
The 1970s women's movement added to this 19th-century feminist
platform a critique of universal male domination and women's consequent
subordination.109 Using this analytic framework, the women's movement at-
tacked what it viewed as a patriarchal marriage structure. The feminist rhet-
oric asserted that marriage, like all gendered dynamics, must be a
relationship based on equality rather than hierarchy.
For the feminist and battered women's movements, the legal system
became the target of both their harshest criticism and their highest hopes.
The recognition of their demand for physical autonomy undermined the
105. Eisenstadt v. Baird, 405 U.S. 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 author-
ity" 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.
priority of marital privilege in popular and legal discourse. Rejecting ma

privilege in law, and in laws prohibiting rape in particular, left the m
rape exemption an open target for feminist attack, unsupported by t
thodoxy which once had protected it.
Changes from Within
The further breakdown of both marital unity and the more gen
principle of marital privilege after the publication of the Model Pena
provides the prologue to this story. The push by legal scholars to ins
no-fault divorce laws revealed the decay of marital unity as a legal goal.
postwar legal scholar, Walter Wadlington, criticized fault-based div
laws, rejecting them as restrictive and reflective of an outdated moral co
"Unfortunately, this change in social views has not been reflected
quately in our divorce laws, which too often still mirror the idea fr
much earlier day that if a marriage went 'on the rocks' it must hav
because of the sins of one or both of the spouses."110 In dismissing the m
stigma of divorce, Wadlington's writing revealed the decay of the tradit
legal/moral construct defining marriage.
Under canon law, marriage had offered potential "foricators" a m
framework for sexual activity; at the same time that framework had det
mined the sexual rights and duties of marital unity, it had also dec
marriage indissoluble.11 Wadlington removed marriage from this m
structure, arguing that a marital relationship can dissolve for reasons un
lated to individual sin: "We must recognize that there may be a com
and irremediable breakdown of a marriage regardless of fault as now legi
tively and judicially defined."112 Wadlington's position proved enorm
influential; within the movement toward no-fault divorces, marriage
to be viewed as a civil contract like any other, dissolvable when bo
either spouse no longer wished to fulfill his or her agreement.
Wadlington and his contemporaries redefined divorce laws' pur
The laws, which had attempted to obstruct divorce unless absolutely n
sary, came to facilitate divorce when the relationship faced irreconc
problems. Wadlington suggested that the legal system make already e
marriages easier to leave: "And we must proceed on the theory tha
better for the parties individually and for society in general to perm
divorce courts to terminate such marriages."13 In a recent reflection on
110. Walter Wadlington, "Divorce without Fault without Perjury," 52 Va. L. Rev.
(1966).
111. "For it is better to marry than to be aflame with passion. To the married I giv
command-not I but the Lord-that the wife should not separate from her husband .
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.
changes of the last generation, legal scholar Herma Hill Kay depicted mar-
riage as a malleable emotional attachment and argued that the legal system
must cater to this emotional contract's changeable state in order, "to create
a legal framework for family dissolution that is perceived by all parties as fair
and that will facilitate a healthy emotional transition between marriage and
divorce.""4 Rather than viewing divorce as a sin, Hill acknowledged it as a
possible stage in the lives of two independent actors:
Divorce is not an end in itself. Rather, it is a legal device that permits

the termination of a marriage during the joint lifetime of the spouses.
Divorce instead makes possible new beginnings, but the opportunities
it affords are not limited to remarriage.115
Modem critics like Wadlington and Hill suggested that the contracting par-
ties should not be subject to unswerving divorce laws but rather divorce
laws should respond to the individuals in the contract.
This suggestion threatened marriage's ideological foundation in the
postwar era. Making it easy for a married couple to separate destroyed the
permanence attached to the notion of martial unity. Because the identities
of "husband" and "wife" lacked the permanence they once had in the 19th
century, legal scholars found arguing that the wife's legal existence be sus-
pended increasingly difficult. The push for no-fault divorce laws reflected
one stage in marital unity's decline in 20th-century legal discourse.
But this process of decay had begun in legal discourse a half-century
before the 1960s push for divorce reform. The movement toward no-fault
divorce laws bears a deeper significance to my story of the marital rape ex-
emption's decline than its rejection of marital unity. The vision of marriage
that critics such as Wadlington and Kay purported demystified the contract
in the law. By demanding that divorce laws respond to the individuals in
the contract, these scholars denied that marriage, or divorce, was "an end in
itself," a moral institution larger than the contractors themselves. Accord-
ing to these critics marriage represented a contract whose form and future
free actors dictate, rather than a system of identities that casts each party
into an inescapable and transcendent role. Within this interpretation, the
law of family no longer stood above the individual, as James Schouler envi-
sioned marriage law in his 19th-century opinion on divorce.l16 By removing
marriage from its moral origins in marital unity, the movement toward no-
fault divorce laws defined spouses as parties like in any other civil contract.
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."
Viewing this evidence, we understand that legal scholars s

Wadlington and Kay saw marriage in the late 1960s as a contract un
to the particular privileges reserved for a sanctified and eternal pac
The 1971 U.S. Supreme Court decision in Eisenstadt v. Baird in
fied marriage's demystification. Justice Brennan both challenged a
panded the scope of the 1965 Griswold decision by denying that t
reserved the right of privacy to marriage. He argued effectively t
lowing married persons the privilege of contraception while prohibitin
use to unmarried persons violated the Equal Protection Clause of th
teenth Amendment.
Eisenstadt discredited the distinction between sex inside and out
marriage. The Court rejected marital privileges: "Whatever the righ
individual to access to contraceptives may be, the right must be the sam
the unmarried and the married alike."117 The right that the Court in G
wold interpreted as a privilege of marriage, the Court in Eisenstadt
formed into a right for the individual regardless of marital status.
By abandoning the moral/legal line between married and unma
sex, the Court in Eisenstadt identified marriage as a contract betwe
independent parties. The 1971 Court stated explicitly that marria
longer represented a union transcending both its members and the crim
law:
It is true that in Griswold the right of privacy in question inhered in

the marital relationship. Yet the marital couple is not an independent
entity with a mind and heart of its own, but an association of two
individuals each with a separate intellectual and emotional makeup. If
the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.118
With the Eisenstadt decision, the Court asserted that the right to pri-
vacy did not provide a marital privilege because husband and wife repre-
sented individuals under law before they embodied transcendent roles. The
Court's vision of husband and wife challenged the still sanctified image the
ALI had maintained. By using the Equal Protection Clause to support its
vision, the Court denied the basis for any specifically marital privileges in
the criminal law. According to the Court's decision, granting an immunity
to a married man-a spousal exclusion for rape-while denying it to an
unmarried man violated the Fourteenth Amendment. Thirteen years after
Eisenstadt, the Appellate court of New York State agreed. Citing Eisenstadt
117. Ellman et al., Family Law 857 (cited in note 100); Eisenstadt v. Baird, 405 U.S. 438
(cited in note 105).
118. Ellman et al., Family Law 858.
v. Baird as precedent, a New York State court affirmed Mario Liberta's con-
viction for raping his wife, Denise. In this decision, the court used the Equal
Protection Clause to overturn the state's marital rape exemption.119
Setting the Stage-The Cast of Players
It was the women's movement historically and conceptually that con-

nected Eisenstadt v. Baird to People v. Liberta. It did so by applying the 1971
court's language of rights to women's legal plights and men's legal privileges
in its critique of rape and marriage laws.
The early 1970s saw an increasing number of women graduating from
law schools and entering into the legal field. Sociologist Cynthia Fuchs Ep-
stein charted this phenomenon:
After decades of virtually no movement, the number of women lawyers

grew radically in the decade of 1970 to 1980, from 13,000 to 62,000
(from 4 percent to 12.4 percent) and the proportion of women in law
schools rose from 4 percent in the 1960s to 8 percent by 1970, and
then to 33 percent by 1980.120
The increasing feminization of the legal profession occurred at the same

time a growing women's movement heightened American society's sensitiv-
ity to women's status. The birth of feminist legal journals like the Women's
Rights Law Reporter illustrated the interplay between the feminist movement
and a legal community that increasingly included women's voices. While
not all female lawyers debated so-called women's issues in the law, women
in the field were largely responsible for bringing the debates over male bias
in the legal system to the fore of legal discourse.
The relationship among the entrance of women into the legal profes-
sion, the feminist movement, and the legal slant of feminist activism proves
difficult to determine. Each of these parts to my story emerged at the same
time and often within the same circles.121 In my analysis, this relationship's
significance rests in the growing reflection of feminist platforms, born
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 Ep-
stein'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.
outside of strictly legal journals, within the formal legal scholarship

1970s. The theory of sexual politics informed feminist rallying cries aro
the issues of rape and battered women.122 The feminist fight agains
sexual politics labeled women's physical subordination inevitably tar
the legal system as a crucial protector of male sexual domination. F
legal discourse served as one forum for these battles against legal patriar
as feminist lawyers and law students took up the cross of the
counterparts.
From Feminism to Legal Theory
In 1969, a new feminism replaced the theories of 19th-century

mothers Elizabeth Cady Stanton and Susan B. Anthony. Like her fem
predecessors, Kate Millet in her thesis Sexual Politics compared women's
temic oppression to race and class subordination. She similarly asserte
men, as a distinctive group, stood as the oppressor to her own.123 S
fined her modem analysis of the gender structure as a political one. P
signified, in this feminist strain, an inclusive term; the political include
relationships characterized by a power dynamic. Millet wrote: "The
'politics' shall refer to power-structured relationships, arrangements wh
one group of persons is controlled by another."124
Sex, or its cultural face, gender, defined the political structure of p
archy that Millet critiqued. She used the language of domination to descr
this power relationship: "a disinterested examination of our own sys
sexual relationship must point out that the situation between the sexes n
and throughout history, is a case of that phenomenon Max Weber d
as herrschaft, a relationship of dominance and subordination."'25 For
tury, legal discourse on marriage had subsumed individuals' separate i
ties in the relationship under the mantle of marriage as an institution w
single definition. In contrast to this tradition, the 1971 Supreme Cou
of Eisenstadt v. Baird highlighted the two distinct individuals in the rela
ship. Building on this recognition, Millet's sexual politics theory rei
duced a dialectic of rights into discourse about men and women and, for
122. See Kate Millet, Sexual Politics (New York: Simon & Schuster, 1990) ("Millet
tics"), for theory outlining "sexual politics."
123. See id. at 24: "I have therefore found it pertinent to define them on grou
personal contact and interaction between members of well-defined and coherent g
races, castes, classes, and sexes. For it is precisely because certain groups have no rep
tion in a number of recognized political structures that their position tends to be so
their oppression so continuous." Elizabeth Cady Stanton made a similar claim to wo
group subordination: "We, as a class, are tired of one kind of protection, that which lea
everything to do, to dare, and to suffer, and strips us of all means for its accomplis
"Address" (cited in note 30).
124. Millet, Politics 23.
125. Id. at 24.
purposes, into legal discourse on husbands and wives. To a legal community

that thought it had renounced sexual inequality a century before, this dia-
lectic of rights illustrated the maintenance of a sex right that marital unity,
in its modem reformulation-marital privacy-had signified.
A mantra of systemic male dominance characterized early 1970s femi-
nist platforms. Foreshadowing Millet in its polemic manifesto of 1969, the
radical feminist group the Redstockings defined sex relations in hierarchical
terms: "Women are an oppressed class..... We identify the agents of our
oppression as men. Male supremacy is the oldest, most basic form of domi-
nation."126 The Redstockings' manifesto, published in the July 1972 Na-
tional Organization for Women newsletter, commanded that men renounce
their special rights in order to level gender inequality. The manifesto used
the term "privilege" to pinpoint and attack male supremacy: "We call on all
men to give up their male privileges and support women's liberation in the
interest of our humanity and their own."'27 The Redstockings and other
radical feminist groups sought to deny men the power of privilege, or rather
the privileges of power. Only the thin shroud of marital privilege supported
the martial rape exemption at that time. By rejecting male privilege in gen-
eral, feminist groups like the Redstockings pulled away the shroud protect-
ing the exemption and revealed the sex right beneath it. The marital rape
exemption thus became a cornerstone of the power they wanted to
deconstruct.
The Sexual Politics of Rape
The 1970s radical feminists believed that to analyze gender relations

politically they had to deconstruct the gender hierarchy in their own per-
sonal lives, rather than simply the hierarchy in social institutions.128 Ac-
cording to Millet, the sex act represented the most literal form of sexual
dynamics on a personal level, symbolic of the larger patriarchy at work in
society. She wrote:
Coitus can scarcely be said to take place in a vacuum; although of itself

it appears a biological and physical activity, it is set so deeply within
the larger context of human affairs that it serves as a charged micro-
cosm of the variety of attitudes and values to which culture subscribes.
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.
Among other things, it may serve as a model of sexual politics on an

individual or personal plane.129
In her analysis, Millet argued that because the man has a dominant plac
within the hierarchy, he manifests this power in his sexual role. Within this
analysis, rape became an expression or fulfillment of structural hegemony
Millet wrote: "Patriarchal force also relies on a form of violence particularly
sexual in character and realized most completely in the act of rape. ... In
rape, the emotions of aggression, hatred, contempt, and the desire to break
or violate personality, take a form consummately appropriate to sexual poli-
tics."'30 Rape would increasingly become the target of feminists' sexual
political critique.
A few years later, in her feminist text Against Our Will, Susan
Brownmiller employed this political vision of rape. She wrote: "All rape i
an exercise in power, but some rapists have an edge that is more than physi-
cal."131 For Brownmiller, rape illustrated the patriarchal superstructure that
the analytic tool of sexual politics revealed.
Defining rape as an expression of male power, radical feminists organ-
ized around the issue of sexual violence against women. Susan Griffin, a
feminist poet, differentiated rape from other violent crimes such as murder
in her famous essay, "The Politics of Rape." She defined sexual violence as
specifically political act symbolizing and propagating the gender hierarchy
"But rape is not an isolated act that can be rooted out from patriarchy with-
out ending patriarchy itself. The same men and power structure who victim-
ize women are engaged in the act of raping Vietnam, raping Black people
and the very earth we live upon."'32 The national feminist group N.O.W.
rallied around the issue of rape, similarly interpreting that crime as women's
systemic political subordination. In a 1972 newsletter, the Philadelphia
chapter of N.O.W wrote: "The crimes against women are the most blatant
expressions of the pervasive attitude of men towards women. While some of
us have not experienced the extreme, all of us have been subjected to the
more 'harmless' forms."'33 In 1974, Jackie MacMillan, director of the firs
rape crisis center in the United States, described the movement's expressly
political goal in establishing such centers. In an article in the feminist publi-
cation, Grass Roots, MacMillan wrote:
They [feminist organizers] saw rape as an important issue to organize

women around because the major contradiction in rape is that it is a
129. Millet, 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).
sexist problem and it's a problem shared by all women. It was also seen
as a good way to break down class and race barriers among women and
to politicize women about sexism.134
Describing rape as a "sexist problem," MacMillan claimed that patriarchy

caused rape. This vision of rape as a male domination guided, and we could
argue inspired, feminist organizing around the issue of rape.135
The Movement in Law
While feminist activism addressed the psychological, social, and medi-

cal issues surrounding violence against women, its primary focus was on the
legal problems besetting rape victims. Feminists of the 1970s understood the
police and judicial systems to be instruments of patriarchy. Laws about rape
provided feminists with tangible fodder for their political critique. In Against
Our Will, Brownmiller presented an orthodox feminist history of rape, re-
vealing the law's foundation in a structure of male dominance:
Rape could not be envisioned as a matter of female consent or refusal;

nor could a definition acceptable to males be based on a male-female
understanding of a female's right to her bodily integrity. Rape entered
the law through the back door, as it were, as a property crime of man
against man. Woman, of course, was viewed as the property.'36
Rape laws targeted, from the feminists' perspective, the violation of the
male's sexual privilege to his property-his wife or daughter.
This rhetoric linking women to property harkened back to the 19th-
century feminist critique of marriage laws. Like the rhetoric invigorated
feminist legal critiques in the previous century, it offered a persuasive po-
lemic framework for feminist critique of rape laws in the 1970s. The Rape
Crisis Center in Ann Arbor, Michigan, felt that "the present law preserves
the slave status of women, and makes legal the daily rape of thousands."'37
In this image of slavery, we can recognize the notion of the male sex right
that authors like Brownmiller associated with modem rape laws.
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 specifi-
cally 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, Berke-
ley, California, "Women and Law," microfilm collection, reel 1, sec. 5 (1974) ("Women &
Law collec.").
Grounding her analysis in rape's statutory history, Brownmiller argued

that the statutes' emphasis on a victim's chastity reflected the law's aim t
protect a man's sexual right to his wife or daughter, rather than a woman
bodily integrity. She wrote: "Virginity remained the sine qua non of individ-
ual rape prosecution."138 According to the feminist critique, legal precon
ception of rape's nature and the law's purpose created legal suspicion of
victims' testimonies. In 1974 the Los Angeles Commission on Assault
against Women held an "Anti-Rape Conference" to assail the prejudice
from which most victims suffered under legal scrutiny. A pamphlet from th
conference read: "the rape victim is often blamed for the crime agains
her.... [I]n many states, including California, the rapist's previous convic-
tions are not considered admissible evidence, while the sexual reputation o
the victim is considered a crucial element of the facts."139 For feminists, the
law's emphasis on victims' chastity represented the same patriarchy whic
propagated rape itself:
The failure to improve existing rape laws indicates an unwillingness to

accept women as free human beings. If women were accepted as peo-
ple, why would the rape victim be the one tried in a rape case? Why is
rape the only crime in which the victim goes on trial having her morals
microscopically examined? The implication is that if the woman has
sex (any sex ever) she must be BAD and thus not deserving of the
protection of the law.140
A N.O.W Newsletter in 1972 quoted Rollin Perkins's chapter on rape from

his 1966 criminal law textbook. The newsletter lifted a subsection entitle
"chastity" to be part of a series of attacks on sexism in legal texts. Perkin
proved a perfect target for the newsletter's feminist critique of the law
N.O.W prefaced Perkins's subsection with its feminist summation of th
law: "The law is an ass (hole, better yet, manhole) department."'41 If mal
domination was the feminists' enemy, the law (taught by legal scholars lik
Perkins) represented their enemy's tool of oppression.
Through legal reform, feminists hoped to transform the law from tool
of male domination to a source of protection from it. "Rape crisis" rhetoric
demanded that laws protect women's bodily integrity rather than the mal
sexual privilege to women's chastity. Susan Griffin's feminist analysis of the
138. Brownmiller, Against 23.

139. Anti-Rape Conference Bull., Sat., 16 June 1974, Los Angeles (Herstory 1 Cont. Up-
date, reel 8).
140. N.O.W. Newsletter, May 1973, section entitled "Rape Crisis!" (Herstory 1 Cont
Update, reel 8). The N.O.W task force on rape established in 1972 began publishing stat
rape statutes in chapter newsletters to educate and mobilize women about prejudicial law
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).
1970s resurrected Elizabeth Cady Stanton's call for the self-sovereignty that
both rape and rape laws rob from women: "Rape is an act of aggression in
which the victim is denied her self-determination."142 An excerpt from a
N.O.W. newsletter revealed one feminist's realization that changing rape
laws was the only way to protect women's bodies from the abuses of male
dominance which the law at that time safeguarded:
The law was ordained for men by men, in order to protect a male-
designed society.... The law is an ass. But I am not an ass. I see what
the law can do for me if I can grasp its principles. The law is a resource
to be used after the normal processes of society have broken down....
If all else fails I will use the law. But I will use it in the knowledge that
it was not made for me.143
Feminists hoped that by changing rape laws' priority from protecting

chastity to protecting bodily integrity, legal reform would abolish the laws'
bias against "unchaste" rape victims. Susan Wallace, a N.O.W legislative
advocate, suggested that this refocusing automatically rendered the victim's
chastity irrelevant: "a woman's past sexual history is irrelevant and immate-
rial to the issue of consent on the particular occasion of the alleged rape."'44
Responding to the acquittal of a woman's four rapists on the basis of her
"sexual freedom in the past," a feminist pamphlet enumerated the legal re-
forms necessary to protect women like this one from a "second rape" in the
courtroom: "1) that rape as defined by women be prosecuted in the court-
room 2) that this travesty be declared a mistrial 3) that the defense attorney
be disbarred 4) that women district attorney's be appointed to protect their
sisters from this type of treatment."'45
The Feminist Movement in the Legal Elite
The pamphlet's fourth demand suggested one source of strength for the
women's movement in its fight for rape laws' reform. Voicing the demands
of lay activists, feminist lawyers added both knowledge and credibility to
their legal fight. The Model Penal Code's rape statute represented one of
feminist jurisprudence's main targets.
142. Griffin, Ramparts Mag., p. 8 (cited in note 132).

143. N.O.W. Newsletter, Central New Jersey Chap., Nov. 1971 (Herstory 1 Cont. Up-
date, 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).
Armed with the conceptual framework of sexual politics, in the m

1970s feminist jurisprudence attacked the Model Penal Code's contra
tory modernism. Feminist lawyer Leigh Bienen criticized the ALI's dec
to reject "virtue" and "chastity" as "requirements" for rape victims bu
adhere to "promiscuous sexual relations" stipulations: "Again, the pred
nant interest seems to be protecting men from false complaints, not prot
ing females from being sexually assaulted or convicting those who are gui
of sexual assault."'46 Addressing the ALI's debate over the extent of "p
tration" required to determine whether a rape had been committed, B
connected the issue to the sexual exclusivity marriage promised men: "
worries only become paramount if one believes the purpose of rape laws is
protect virginity."'47 In the eyes of feminist critics, the Model Penal
symbolized the male bias in the law besetting rape victims.
Echoing the current feminist criticism, feminists within the legal eli
countered traditional discourse on rape with a demand that the law pr
a woman's right to bodily integrity rather than her status as a chaste vict
The feminist account of rape's legal history proved central to this reev
tion. We hear echoes of Brownmiller in Leigh Bienen's celebration of
statutes' reform in the 1970s:
Formerly, rape was the taking of a husband's or father's property. Th

harm was a loss of virginity or exclusivity. The harm is now perce
as personal to the woman, both psychologically and physically. Th
has been a recognition of the fact that all women are at risk.148
Recognition of this physical danger centered the debate over rape reform
not only women's need for, but their right to, bodily integrity. Feminist
scholar Camille E. LeGrand wrote: "Rape laws are not designed, nor do
function, to protect a women's interest in physical integrity."149 These fe
nists used the arena of legal discourse both to attack the male sex right an
to demand female sexual autonomy in return.
Sexual Politics, Rape, and Marriage-The Connection
The 1970s feminists argued that rape laws reflected the relationship o
domination and subordination between the sexes, claiming the law di
protect women's bodily integrity but guarded men's sexual right to fe
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 Prac
Effects," 8 Victimology 139, 149 (1983).
149. Camille E. LeGrand, "Rape and Rape Laws: Sexism in Society and Law," 61 Ca
Rev. 919, 919 (1973).
property.150 In this assessment, unmarried women represented their fathers'

property. So the argument went, rape laws historically sought for single
women to maintain their chastity so that their fathers could sell them into
marriage. Married women then came to represent their husbands' sexual
property, but both the married and the unmarried woman needed protection
from the rapist who threatened to steal her from her lawful owner.
Feminists understood that the very concept of marital rape lay outside
this dual purpose of rape law. By demanding that the purpose be changed,
feminists undermined the legal support for the marital rape exemption-
marital, or more specifically male, privilege. Their demand that rape laws
protect the woman's right to bodily integrity rather than her chastity advo-
cated the protection of both married and unmarried women from any viola-
tion of their rights. Camille E. LeGrand made a clear connection in her law
review article, "Rape and Rape Laws: Sexism in Society and Law," between
the purpose of rape laws and the marital rape exemption: "The legal impos-
sibility of rape of a wife by her husband is another indication that rape laws
are not aimed at protecting women from sexual assault. If the laws were
designed to protect women, this exception would make no sense."'15 In
Brownmiller's critique, Hale's 17th-century theory of "implied consent" was
transformed from a mere archaism into a historical injustice: "The aggrieved
party in these cases was the husband.... Within a marriage, ... there could
be no such crime as rape by a husband since a wife's 'consent' to her hus-
band was a permanent part of the marriage vows and could not be with-
drawn."152 Like Perkins, feminist jurisprudes attacked the irrationality of
Halian logic, but in their attack they also implicated the chastity ideal to
which Perkins has linked his alternate justification for the exemption. By
changing the focus of rape laws to women's right to bodily integrity alone,
the feminist critique exposed the male sex right at the bedrock of both rape
and marriage law.
This focus took up where the legal reform debates of the 1960s had
rested. The ALI had rejected the regulation of sexual morality-having sex
only heterosexually and only in marriage-as a legitimate goal for the crim-
inal justice system. This rejection had begun to obscure the legal/moral line
between sex in and out of marriage that supported a husband's marital privi-
leges including the marital rape exemption. By upholding both the marital
rape exemption and the chastity focus of rape laws, the ALI contradicted its
own reform. Illuminating the mindset that fed this paradox, the Supreme
Court's declaration of marital privacy in Griswold revealed on one level
marriage's still privileged position within the criminal law, and on another,
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).
the traditionally privileged position of marital sex. The feminist d

that rape laws protect women's bodily rights alone pulled away the last
of the orthodox justification, exposing and discrediting this lingering m
legal line between marital and extramarital sex in law and the ma
right it supported.
The Battered Women's Movement and Marriage
Between 1974 and 1980 the battered women's movement came t

fore in feminist legal critique.153 It was this movement that finally di
tled the traditional distinction between marital and nonmarital r
ships. The movement grew out of the larger feminist movement, speci
its antirape campaign. Using sexual politics to analyze wife abuse, a
in the battered women's movement connected domestic violence to
types of violence against women. The organizers argued that male d
tion and the male desire to subordinate women triggered domestic v
just as it caused rape and battery at large. But by focusing on marriage
battered women's movement pushed the issue of power inequality
riage into feminist legal discourse. The legal arm of the movemen
manded the right to bodily integrity for married and unmarried w
alike. But the discourse on rights within the context of marriage at
not legal standards of chastity but the legal goal of marital privacy
denied wives their bodily rights.
Self-proclaimed radical feminist Susan Schechter linked the bat
women's and feminist movements of the 1970s in her 1982 retrospe
the former movement. She lauded feminist theory for both trigger
informing the establishment of shelters for battered wives: "A fem
movement had played a central role by providing new theoretical i
about violence against women, an ideology of sisterhood, and the in
tion and support that led thousands of women to work ceaselessly, ofte
no money."'54 She defined the battered women's movement's theory
tinctly political: "Shelters offered the supportive framework through w
thousands of women turned 'personal' problems into political ones."'5
inists used sexual politics to connect the political problems of domes
lence to what feminists saw as a systemic violence against women
Schechter's argument against gender-neutral language revealed the
ment's political message: "This change from battered woman to b
spouse masked the radical political insights about male domination
feminists had forged."'56 Schechter rooted the battered women's
153. Dates from Susan Schechter, Women and Male Violence: The Visions and Strug
the Battered Women's Movement 1 (Boston: South End Press, 1982) ("Schechter, Vis
154. Id. at 4.
155. Id. at 2.
156. Id. at 3.
ment's political inspiration in the feminist campaign against rape: "The

anti-rape movement articulated that violence is a particular form of domi-
nation based on social relationships of unequal power."157 This movement
asserted that wives suffered within the same power hierarchy that victimized
all women in society.
While the feminist and battered women's movements agreed that male
domination caused women's systemic subordination, the latter movement
focused its gender analysis on the institution of marriage. A distinct theory
about marriage emerged. In her history of the battered women's movement,
Schechter based her critique of marriage within a feminist framework that
acknowledged the dialectic of rights between men and women: "Although
many political, strategic, and ideological differences were evident . . .
women agreed that men held power and privilege over women in personal
life."'58 In applying this theory to her analysis of marriage, Schechter at-
tacked traditional notions of marital privacy rather than just the issue of
gender inequality. She wrote: "By claiming that what happened between
men and women in the privacy of their home was deeply political, the
women's liberation movement set the stage for the battered women's move-
ment."159 On a deeper level, Schechter's attack on the gender hierarchy
inherent in marriage discredited the theory underlying the privacy ideal-
marital unity. She wrote: "If women were dominated by men both outside
and inside the family, women and men no longer had identical interests
even within the family unit. Claiming conflicting interest, husband and
wife were no longer 'one.' "160 The sexual political theory which provided
the driving force to the battered women's movement also broke down the
lingering tenets of marriage orthodoxy because it highlighted the male priv-
ilege at that orthodoxy's foundation.
In an effort to attack inequality within marriage, the battered women's
movement embraced the radical feminist rallying cry for bodily rights.
Schechter linked this demand to her denunciation of marital unity:
"Women had rights as autonomous human beings which meant that their
psychological and physical dignity could be asserted."'61 She blamed, in
turn, marriage law's patriarchal history for its denial of that autonomy in the
second half of the 20th century: "Marriage law explicitly recognized the
family as the domain of the husband, forced women to conform to the man's
will, and punished men and women unequally for infractions of marriage
vows."'62 Schechter's assertion that, "law and tradition continue to conspire
157. Id. at 34.

158. Id. at 32.
159. Id. at 31.
160. Id. at 32.
161. Id.
162. Id. at 217.
to view the husband as head of household,"'63 illustrated that the fem

in the battered women's movement saw legal reform as one way to e
men's and women's rights in marriage.'64
An organized effort similar to the feminist antirape campaign emer
in the late 1970s to change both the civil and criminal codes addre
domestic violence. Schechter targeted the police policy of noninterv
in domestic violence situations: "At the beginning of the movement
tered women complained frequently that the police simply would no
when called. If they did come, they would refuse to arrest saying: 'T
nothing we can do. It's a family matter.' "165 She argued that wife b
had a precarious criminal status in the laws as well: "Although law
significantly from state to state, the battered women's movement w
legislatively to see that wife beating was treated as a crime-a social,
private matter."'66 A mantle of privacy kept domestic violence outside b
police jurisdiction and the courts. Feminist activists cracked this ma
order to achieve their legislative victories.
Literature detailing women's experiences of domestic battery helped
undermine the defense of marital privacy. As the public became aw
both the brutality and prevalence of wife abuse, the argument that crim
prosecution and police intervention would disrupt domestic tranqu
grew increasingly untenable. R. Emerson Dobash and Russell D
opened their book Violence against Wives: A Case against Patriarchy
description of testimonies they had heard:
The type and severity of the violence experienced by women a

hands of their husbands vary considerably. One woman told us how
broke her back after leaping out of a first story window in ord
escape the beating she was receiving from her husband. Another
vealed that she was dragged up and down a flight of stone stairs by
hair and then whipped with a wire spring belt. Another had her
literally pulled out by the roots and was left with a permanent
spot. Countless others suffered black eyes, split lips, broken teeth, a
bruised throats, shins, and spines.167
The prologue to Lenore Walker's widely read Battered Woman detail

woman's tragic story of battery.168 The Dobashes' book charted the
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 Patri-
archy 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").
spread publicity that wife battery received both in England and in the
United States during the 1970s. They wrote:
Once they [the press] had discovered the issue of battered women, they
launched an all-out campaign, which although sensationalist at times
was usually supportive. This helped ... to raise public awareness and
sympathy for women who were being beaten.169
An aware public could no longer uphold the sanctity of marriage or support

the legal ideal of marital privacy above the physical safety of these now
public victims. In the face of brutal testimonies, marital privacy stood in-
creasingly as a patriarchal injustice.
The Battered Women's Movement in Official Legal Discourse
Like the feminist antirape campaign, the battered women's movement

now affected feminist legal discourse in the late 1970s as feminist juris-
prudes embracing this movement took up the legal arguments of their lay
counterparts. Their arguments focused not around the legal ideal of chastity
but the legal ideal of marital privacy. Like the feminist critique of rape laws,
the feminist charge against domestic violence legislation and procedure at-
tempted to remove the moral/legal shroud around marriage which masked
the male privilege inherent in that relationship.
The bulk of the discourse critiqued the police's and court's systemic
denial of criminal protection to battered wives. Sue Eisenberg and Patricia
Micklow argued that the law considered spousal violence a private, non-
criminal problem. They wrote: "A number of interviews with professionals
indicate that wife assault is not perceived as a crime, but rather as a social
problem or a domestic matter between husband and wife."170 In her 1979
article, Laurie Woods attributed this "band-aid approach" to the privileged
position the husband held in marriage; she likened the wife to property,
employing a persuasive tactic also used by the antirape campaign: "These
people [law enforcement personnel] either deny the existence, prevalence,
and seriousness of the violence, or they treat it as a privilege of marriage
which does not warrant state interference because women are viewed as
their husbands' property."'71 Critics like Eisenberg and Micklow argued that
the marital privilege to privacy, which kept domestic violence offenses out
of criminal courts also kept wives in a position of powerlessness.
169. Dobash & Dobash, Violence 3.

170. Sue E. Eisenberg & Patricia L. Micklow, "The Assaulted Wife: 'Catch 22' Revis-
ited," 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).
Feminist critics understood that arguments to protect marital privacy

merely represented a modem attempt to protect the traditional privilege
held by men in marriage. Eisenberg and Micklow recognized that marital
unity was the predecessor to the marital privacy argument: "When the unity
concept lost stature, other rationales were developed to support the hus-
band's immunity from liability: the deluge of litigation argument, damage to
domestic tranquillity."172 By exposing the prevalence of domestic violence
legal commentators like Eisenberg and Micklow hoped to undermine the
privacy defense and consequently the theory of marital unity that preceded
it. They wrote: "Any serious acknowledgment that wife-beating exists chal-
lenges the institution of marriage and intrudes on societal notions of pri-
vacy."173 Like the feminist literature of the time, legal discourse used jarring
data to break down the image of "the sacred hearth." Eisenberg and
Micklow wrote:
Characteristically, the assault consisted of punching or hitting. Most

often, the assailant employed more than one type of attack.... The
areas of the body most frequently attacked were the head (55%) and
the face (75%).... An occurrence which appeared with great consis-
tency was the infliction of blows to the abdominal area during preg-
nancy.... In response to what caused the attacks and whether they
had contributed to them, most victims characterized the beatings as
unwarranted and undeserved.174
By publishing this information, Eisenberg and Micklow sought an end

to husbands' "chastisement rights" and the "subordination of women in
marriage."175 Protecting battered wives' bodily rights, they hoped, would
counter the "devaluation of women as human beings" that both wife beating
and legal tolerance promoted.176 Legal discourse from the battered women's
movement demanded that the husband's privilege to beat his wife end with
the legal recognition of the wife's right to physical self-sovereignty.
The Battered Women's Movement and Marital Rape
By rejecting the male privilege to chastise and the ideal of marital pri-
vacy protecting it, the discourse of the battered women's movement disman-
tled the last rationale upholding the marital rape exemption. The feminist
movement's critique of rape laws revealed the male sex right underlying the
laws' moral slant. The feminist critique of domestic violence legislation used
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.
the same rallying cry for sovereignty specifically to attack marriage and the
legal privileges men held in that institution. The legal ideal of privacy,
rather than chastity, represented their enemy. Without the defense of mari-
tal privacy, rape in marriage appeared neither "lawful" nor "private" to a
legal community that thought inequality in marriage law had long since
disappeared. Championing a woman's right to bodily integrity as the new
criterion for both rape and domestic violence laws, feminist jurisprudes fi-
nally attacked the marriage orthodoxy's last peg-the marital rape
exemption.
The battle to repeal the exemption originated with the movement to
change laws surrounding domestic violence. Leigh Bienen attributed the
success of marital rape bills to activists in the battered women's movement:
"The legislative amendments to the spousal exception to rape were lobbied
through state legislatures with the strong assistance of women working to
establish shelters for battered women."177 Bienen connected this legislative
movement to the reform of domestic violence laws: "A number of states
have enacted domestic violence bills whose purpose is to provide civil reme-
dies for spousal assault."178 The publication of testimonies like the ones in
Walker's and the Dobashes' books proved crucial in linking the battered
women's movement to the budding fight against the marital rape exemp-
tion. Bienen wrote: "Confronted with extensive documentation of wide-
spread physical abuse of wives, including rape, it became difficult to argue
that spousal rape was non-existent."179 These initial attacks on the exemp-
tion came from outside the legal elite.
But like the other legal battles of the women's movement, the critique
of the exemption had its advocates within the legal community. The deluge
of articles assailing the exemption began with a 1977 article in the New
York University Law Review:
A "technical spouse" may attack her sexually with impunity through-

out the entire period of their separation, which may last her lifetime.
This situation is bitterly ironic. It is possible-albeit uncommon in
practice-for a jury to convict of rape a man who is living with but not
married to the victim. A jury, however, will never even consider a
charge against a man who is legally a spouse but in reality a hostile
intruder.180
Two years later, Dennis Drucker similarly discredited the marital rape ex-
emption in the Women's Rights Law Reporter. He wrote: "Courts and crimi-
nal law authorities have summarily accepted the barbaric notion that a
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).
husband cannot be guilty of rape even if he forces his wife into sexua
course against her will."181 Without the defenses that had decaye
feminist scrutiny, the marital rape exemption stood out as a brut
right-a remnant of a far-gone era.
All the arguments against the exemption asserted the archaism
husband's immunity from rape laws. This position blended the feminis
ory behind the reform of both rape and domestic violence laws. T
New York University Law Review article echoed Brownmiller's text as
viewed the feminist critique of rape laws: "The purpose behind th
was largely to insure her value as a sexual object for her husband o
mate. Thus, viewed, a husband forcing sex on his wife was merely
use of his own property."182 This article attacked the principle of
unity, another feminist demon: "This concept of women in marria
rape by a husband impossible since a man cannot rape himself."183
thor asserted that these defenses for the husband's privilege had disap
The time had come, the author demanded, that rape laws protect
rather than men's sexual privilege: "since the notion of women as p
has almost disappeared, the purpose of rape laws in general has s
from protecting male interests to protecting a woman's personal safet
freedom of choice."184 Echoing the message of the feminist and b
women's movements' critique of marriage laws, the author further
that the exemption conflicted with the redefinition of marriage as an
tution based on equality, rather than a dialectic of rights: "the changes
led to a view of marriage as a partnership in which the husband and th
share equal rights."185 Drucker's article poignantly summarized th
tions. He connected the exemption's irrationality with the modem
gender equality: "A spousal exception for forcible rape simply has
in a society which recognizes women as equal human beings and w
more than property of their husbands."'86 The husband, these ar
claimed, no longer had a sexual right to his wife's person in a legal
which claimed to treat men and women, and specifically husband
wives, equally.
The Liberta Decision187
In the 1984 marital rape case of People v. Liberta, the New York State
Court of Appeals overturned the state's marital rape exemption on the
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).
grounds that it violated the Fourteenth Amendment's Equal Protection

Clause.'88 The court's reasoning reflected the marital rape exemption's ob-
solete state in the legal discourse of the time. Judge Wachtler began by
citing Eisenstadt's evaluation of marital privilege: "Where a statute draws a
distinction based upon marital status, the classification must be reasonable
and must be based upon 'some ground of difference that rationally explains
the different treatment.' "189 He concluded that no such rationale existed,
dissolving in case law the traditional line between lawful and unlawful sex:
"We find that there is no rational basis for distinguishing between marital
and non-marital rape.... We therefore declare the marital exemption for
rape in the New York statute to be unconstitutional."190 In this assertion,
the New York court discredited Perkins's justification, which had been
based on marital sex's inherent "lawfulness."
The judge continued, scrutinizing the traditional rationales that sup-
ported the exemption. In each of his arguments, we hear the voice of femi-
nist rhetoric in the legal language of the day. In his rejection of Lord Hale's
theory of "implied consent," the justice employed the same antirape claims
used by feminist rape reformers during 1970s campaigns: "Rape is not simply
a sexual act to which one party does not consent. Rather, it is a degrading,
violent act which violates the bodily integrity of the victim.... To ever
imply consent to such an act is irrational and absurd."191 Denying the moral/
legal line between the married and unmarried, the judge recalled the femi-
nist demand that the right to bodily integrity belonged to married and un-
married women alike: "A married woman has the same right to control her
own body as does an unmarried woman."192 He used the feminist interpreta-
tion of marital unity to attack the principle: "The other justifications for the
marital rape exemption were the common law doctrines that a woman was
property of her husband and that the legal existence of the woman was
'incorporated and consolidated into that of the husband.' "193 Judge Wach-
tler believed marital unity was distinctly outdated in a 1984 courtroom.
Wachtler moved from an attack on these traditional justifications to
an attack on the modem principles of marital privilege-marital privacy
and the goal of reconciliation. Again, earlier legal critiques of that privilege
resonate in his assertions. He claimed that using privacy as an argument for
the marital rape exemption contradicted the true aims of the law: "The
marital exemption simply does not further marital privacy because this right
of privacy protects consensual acts, not violent sexual assaults."194 He simi-
188. For a case description, see id.

189. Id. at 573.
190. Id.
191. Id.
192. Id.
193. Id.
194. Id. at 574.
larly rejected the goal of reconciliation as just cause for the exemption. Hi
logic echoed the arguments behind the claim for no-fault divorce laws,
agreeing that the law should not promote reconciliation where a marriage is
already irreconcilable: "Clearly, it is the violent act of rape and not the
subsequent attempt of the wife to seek protection through the criminal jus-
tice system which 'disrupts' a marriage."195 Judge Wachtler's arguments
traced the decay of the marital rape exemption's justifications-"implied
consent," "lawfulness," "privacy," and "reconciliation"-from postwar to
modern legal discourse.
Summary: The Semantics of Reform
Before 1977, no legal scholar had written that a man could technically
"rape" his wife. Put more cryptically, scholars felt, as did the writers of the
1954 Stanford Law Review article, that "rape is a category ill-suited to mar-
riage."'96 But the legal elite knew long before 1977 and long before 195
that forced sex existed in marriage. The 19th- and early 20th-century cru
elty cases offered us proof of this knowledge.197 But the word "rape" could
never have defined sexual cruelty in 1876 or in 1954. The legal conception
of both the crime and the institution of marriage had to change in order for
the term "marital rape" to prove logical in legal discourse.
The women's movements of the 1970s took up that reform where the
ALI left it. The feminist movement demanded that rape laws cease waver
ing between the protection women's bodies and the protection of the mal
interest in women's bodies-the standard of chastity. Rape laws had to pro
tect women's physical self-sovereignty, plain and simple. This criterion
helped obscure the moral/legal line between married and unmarried wome
that the ALI had begun to blur. Like unmarried women, married wome
deserved legal protection of their bodily integrity.
The battered women's movement demanded this same equality of
rights for married women but focused that demand on marriage. By analyz-
ing marriage through the lens of sexual politics, the discourse of the battered
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. 71-7
(1876), in Robert L. Griswold, "Sexual Cruelty and the Case for Divorce in Victoria
America," 11 Signs 539 (1986).
women's movement pinpointed and attacked the dialectic of rights still evi-
dent in laws surrounding domestic violence and the marital rape exemption.
Postwar rationales like marital privacy that submerged the dialectic of rights
attached to marital privilege appeared, when held up to a standard of equal-
ity, like male licenses to beat and to rape. Because of these privileges, the
legal identities of husband and wife, and man and woman in general,
seemed separate but fundamentally unequal. Marriage, like all gendered re-
lationships, needed to meet a standard of equality.
Rather than ask whether the marriage contract is an equal one, how-
ever, I concern myself here with the effect of that legal standard of equality
on the legal identity of the husband alone. By demanding equal bodily
rights for husband and wife, I argue, the feminist and battered women's
movements forced the legal elite to redefine "husband" in a way it could not
have when scholars first drafted the Model Penal Code. Incorporating the
feminist theory of sexual politics into modem legal discourse, the elite nom-
inally denied the husband his age-old right to his wife's sexuality. Without
that privilege, the husband is not the man under law that he once was. We
have seen that Carole Pateman defined the husband as owner of sexual
property in another person. She held that reforming the terms of the mar-
riage contract had not changed "the sexually ascriptive construction of
'wife' and 'husband.' "198 Attempting to debunk the contractualist belief in
the power of marriage law reform, Pateman reviews the basic limit of such
reform:199
Husbands no longer enjoy the extensive right over their wives that
they possessed in the mid-nineteenth century when wives had the legal
standing of property. But, in the 1980s this aspect of conjugal subjec-
tion lingers on in legal jurisdictions that still refuse to admit any limi-
tation to a husband's access to his wife's body and so deny that rape is
possible within marriage.200
But in this statement Pateman indicates that by robbing the husband of his
sexual right codified in the marital rape exemption, contractual reform ef-
fectively withheld a crucial aspect of his legal ownership. The husband no
longer represented the "individual" understood in Pateman's terms as sexual
master, within the marriage contract.
Michael D. A. Freeman illustrated this fundamental change when he
considered Galsworthy's Soames Forsythe in his 1981 critique of the exemp-
tion. Today, Freeman revealed, Soames could not take comfort in the
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).
"right-thinking men" of the courts, nor could he believe himself to be sav-

ing "the sanctity of marriage": "This logic may have been convincing half a
century ago, but it will no longer do."201 Without the comfort of the sex
right, Soames might not act differently today, but he would evaluate his
actions and, ultimately, himself differently.
IV. THE DISTINCTION LINGERS
Although by 1980 opponents of the marital rape exemption

substantial victory in the legal community, they had not won
over the exemption in the political arena. After pockets of th
had acknowledged marital rape as a crime, feminists inside and
legal community took the next logical step and overturned the ma
exemption. A political movement to remove the spousal exem
state rape laws began just as articles attacking the exemption s
pear in the law reviews. But feminists' political victories prov
plete than those they had won in the legal elite. While ce
repealed the exemption entirely, other states merely comprom
old and new orthodoxies.202 What California's statute looked li
state repealed its exemption illustrates the limitations of reform (
dixes A and B).
California Assembly Member Floyd Mori proposed Assemb
on 14 February 1979. This version of the bill recommended e
from the rape statute, section 261 of Title IX, a stipulation tha
could not be the perpetrator's wife.203 Those who opposed new
believed the exemption appropriately acknowledged marriage
relationship. While their arguments emphasized the particular
riage, they sidestepped the fact that only husbands enjoyed the
leges of that contract. On the other side, the feminist activist
Califoria's marital rape bill believed that the marital rape exem
bolized this residual male privilege.
Each side's argument reflected the ideological root of its po
opposition to the new legislation clung to the postwar rationale
the marital rape exemption. Stressing above all else the ideal
201. Michael D. A. Freeman, "'But If You Can't Rape Your Wife, Who
Rape?' The Marital Rape Exemption Re-examined," 15 Family L.Q. 1, 29 (1
202. By 1980, New Jersey, Oregon, and California had amended their rape
aware, Florida, and Nebraska also had no spousal exclusion for rape in 1980.
summary of state rape statutes in 1980, see Leigh Bienen. "Rape IV," 6 Women's
(supp. Summer 1980).
203. C. A. Bastian, "Why Are There Two Rape Statutes in California?" at
history of sec. 262, from the legislative history of A.B. 2220, California Stat
privacy, opponents of reform attempted to maintain the status quo.204

While the opposition's arguments paralleled postwar rationales that upheld
the marital rape exemption, the advocates for reform's arguments reflected
the legal platforms of the 1970s women's movement.205
In the 17 April amendment to A.B. 546, the opponents of the exemp-
tion lost ground. This amendment returned the phrase "not the spouse of
the perpetrator" to section 261, and the legislature, for the first time, articu-
lated two definitions of rape.206 Separate section 262 prohibited marital
rape, while 261 covered all other instances. Although section 262's first
draft almost replicated 261, the legislature limited the marital rape statute
to sexual intercourse "by force or threat of force," before the bill's 23 April
hearing. This amendment to the bill eliminated situations outside the realm
of forcible rape; these unforced circumstances included instances when the
wife could not legally consent because of unsoundness of mind or the effects
of a narcotic administered by her husband or when she was unconscious of
the nature of the act.207
The ALI's 1980 revised commentary on the marital rape exemption
can perhaps explain the California legislature's position on A.B. 546. Like
the legislature, the ALI recognized and rejected the exemption as a male
sexual right: "Today, it is certainly not true that marriage results in legal
abrogation of the woman's autonomy over her own person.... If on occa-
sion she refuses, the husband has no right to compel her to submit."208 The
ALI reasoned that the wife implied consent no more than an unmarried
woman, applying the standard of sameness between married and unmarried
persons that they had embraced in 1962: "Just as a woman may agree to date
but withhold consent for intercourse, so she may marry without surrender-
ing to sex on demand."209 But the institution of marriage ultimately implied
a different standard for sex in the eyes of the commentary's authors.
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 govern-
ment 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 his-
tory 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 Jus-
tice is now called the Committee on Public Safety.) See again appendix A.
208. ALI, Model (1980) 344 (cited at note 75).
209. Id.
Although the ALI gave the marital rape exemption a "fresh look" in lig
recent critiques, its final recommendation proved more akin to its
sition than it initially suggested:
marriage or equivalent relationship, while not amounting to

waver of the woman's right to say 'no,' does imply a kind of gener
consent that distinguishes same versions of the crime of rape from
allel behavior by the husband. The relationship itself creates
sumption of consent, valid until revoked.210
This presumption (distinct from an implication) necessitated the sam

tations to the husband's liability that the California legislature mai
The ALI felt: "At a minimum, therefore, husbands must be exemp
those categories of liability based not on force or coercion but on
sumed incapacity of the woman to consent."21 The husband may n
a blanket right to sex, but in certain cases the wife still, in the eyes o
the ALI and the legislature, implicitly consented.
The legislature and the ALI saw a difference between marriag
other relationships, asserting that there existed an openness, a sexu
sibility particular to marriage. Rather than seeking to protect wives fr
dangers of that accessibility as Mori suggested, the legislators agre
the opposition-husbands owned certain licenses, privileges that oth
did not. Although they were never mentioned, the ideal of privacy
fear of false accusations shrouded each of the legislature's decisio
separation between the statutes symbolized the residual legal/moral lin
arating marriage from other relationships and protecting the husband'
ual right.
Summary: Unresolved
The battle over separate section 262 continued through the 1980s,
ending 31 December 1993 with the passing of A.B. 187 into law.212 The two
statutes now read almost identically in Title IX of California's penal code.213
The advocates of reform fought throughout the 1980s to match the marital
rape statute with the regular rape statute, while the opposition argued to
maintain section 262's literal and substantive distinctions. The positions for
and against remained essentially the same throughout the debates.
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.
At the end of the battle over the marital rape exemption, feminist
reform won a substantive victory. The reformist coalition of feminists and
battered wives' advocates made marital rape a crime and destroyed the im-
plicit sex right the exemption protected. Without this historic right, the
husband was no longer marriage's sexual master. Rather, he was an equal
sexual partner in marriage with no rights beyond those over his own per-
son.214 Still, the lingering division between the rape statutes taints this tri-
umph. Section 262 stands to remind the victors that the conceptual
distinction between married and unmarried, lawful and unlawful remains, if
only in a limited symbolic form.
A debate over A.B. 187 I witnessed in the California Senate Judiciary
Committee in the summer of 1993 illuminated this conceptual legacy.
Nancy Lemon, a legal advocate for the California Alliance against Domes-
tic Violence, began debating with one senator over the term "hardship."
The senator believed that marriage implied a certain amount of "hardship,"
and because of that particularity the law should consider marital rape only
in obvious situations of sexual violence. Lemon responded that martial rape
does occur in more ambiguous situations in which the wife proved unable to
legally consent and that the law should protect wives in these situations.
The chair of the committee, Senator Bill Lockyer, ended the discussion
with a poignant assessment of their contrary positions: "The senator simply
feels there is a difference between marital rape and regular rape. We have a
basic disagreement. Let's vote."
The distinction, and the husband's sex right that accompanies it, lin-
gers at least in concept.
V. CONCLUSION
By the Stroke of a Pen?
In its original form, this essay was a thesis written to satisfy t

ments for my Bachelor of Arts in History at Princeton Unive
first thought of writing my thesis on marital rape, I wanted to
specifically, a wife's right to her body and a husband's right
body. I believed that the marital rape exemption denied wive
mental right to self-ownership. More important, it granted husb
I thought no one could have-ownership in another person.
I also wanted to discuss language. Not just "rights talk," bu
guage in general. Fifty years ago, the legal conceptions of "rap
riage" were mutually exclusive. Although we can assume t
couples in the 1950s had forced sexual encounters that seemed
214. Again, I emphasize a purely "sexual" equality.
ties like "rape" as we understand that term today, these couples would
neither have called it nor understood it as "rape." Women at that time wer
"raped" by strangers or, at least, by men with whom they had never been
intimate. Moreover, "rape" usually signaled a loss of chastity. Marriage, on
the other hand, was private, intimate, and, above all else, chaste. Fifty years
ago, husbands just did not "rape" their wives.
In the three decades between publication of Rollin Perkins's 1957 text-
book and Sanford Kadish and Monrad Paulsen's 1989 casebook, the mean
ings of "rape" and "marriage" changed. After this change, rape could occu
in marriage and marriage could involve rape. It was because of this change
that husbands lost their age-old sex right. California's A.B. 546 marked a
triumph (however limited) of this revolution in rights and language.
But did it? Men raped their wives when John Galsworthy wrote The
Man of Property. And, I believe, men still rape their wives today. How, if at
all, does a law against marital rape affect this social reality? Does the mer
fact that a law prohibits marital rape stop some husbands from raping their
wives? Does the law as an abstract statement at least alter how these hus-
bands think about themselves in a marital rape situation-that is, does a
husband who rapes his wife today think of himself as a criminal? Or does he
still think that he is merely asserting his conjugal right? In short, how does
the law affect a husband's sense of his marital identity?
These questions focus on the power of symbolic legislation. But what if
the potential marital rapist thinks he will be arrested and prosecuted? Per
haps only then does our generic marital rapist question his entitlement t
his wife's sexuality.215 This question further assumes that legal words lik
"criminal" and legal realities like prison affect men's decisions at all. Per-
haps men, both married and unmarried, rape women for reasons wholly di
vorced from a feeling of legal privilege. If that is so, then the law may affect
a husband's decision about raping his wife simply because he fears being
caught, but it will never change his conception of his identity in marriage
But I want to argue that legal privilege does matter to husbands and
that legal language can change their marital identities. To ground my posi
tion, I offer an analysis of the social significance of overturning the marital
rape exemption that is both a hope and hypothesis. This analysis is where
my stories of rights and language meet. To begin outlining my argument, I
need a "husband's voice." Although he is fictional, Soames Forsythe offer
us one answer to my primary question of whether marital rapists think about
their abstract legal rights when either deciding to rape or evaluating thei
act after they have performed it.
215. I interviewed Officer Dave Hanczuk of the Los Angeles 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.
In 1908, Galsworthy suggested that Soames's belief in his sexual right

to Irene inspired his decision to rape her. Introducing his discussion of the
incident, Galsworthy assumed the voice of Soames's conscience. In that
voice, the author revealed the centrality of the sex right to Soames's con-
ception of his act: "The morning after a certain night on which Soames at
last asserted his rights and acted like a man, he breakfasted alone."216 But by
reducing Soames's act to an assertion of legal rights, we obscure the emo-
tional complexity of his decision. Mrs. MacAnder's innocent inquiry about
the man with whom Soames believed his wife to be in love "roused in him a
fierce jealousy, which, with the peculiar perversion of this instinct, had
turned to fiercer desire."217 These emotions, rather than his legal conscious-
ness, inspired Soames to "take steps": "Without the incentive of Mrs. Ma-
cAnder's words he might never have done what he had done."218 We can
assume, that husbands such as the fictional Soames choose to rape their
wives for many reasons unrelated to their legal identities.
His legal right becomes foremost in his mind, however, when Soames
attempts to rationalize his behavior. In his rationalization, he reduces his
wife to her legal identity as "his lawful and solemnly constituted help-
mate."219 He takes ultimate comfort in the support that his imaginary Di-
vorce Court gives him: "he had done his best to sustain the sanctity of
marriage, to prevent her from abandoning her duty."220 His conception of
himself as owner of his wife's sexuality in the eyes of the law allows Soames
to accept his behavior.
Diana E. H. Russell sheds more light for us on this question of legal
language's importance. Russell's 1982 study of marital rape, Rape in Mar-
riage, contains a section entitled "The Husbands," in which she probes,
among other issues, the reasons why men rape their wives. In many in-
stances, the traditional legal language of marital rights and duties permeates
Russell's interviews. Mrs. Keamey, a 48-year-old divorced woman, under-
stood her husband's conception of his sex right to be at the heart of his
sexual violence: "'I was protesting and pleading and he was angry because
he said I was his wife and had no right to refuse him.' "221 Mrs. Goodner
recalls her husband claiming, before raping her, "'It's your duty.' "222 A hus-
band/rapist Russell interviewed reflected on his mindset when he raped his
wife: "'At the time I felt men had the "right" to do this with their
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.
women.' "223 These comments illustrate the prominence of the or

system of rights and duties in the minds of men who rape their wiv
Husbands, I conclude, do rape out of a feeling of legal privilege.
law for both Soames and the men Russell interviewed framed their lang
as they evaluated both their own and their wives' sexual roles. We ar
pressed to imagine their discussions of forced sex in marriage witho
terms "rights" and "duties" characterizing their sexual identities. Pe
then, by robbing from husbands the language of "rights," laws against m
tal rape and the literature that surrounds them will eventually forc
bands who rape their wives to find an extralegal language with whi
justify their behavior. The Soames of today must now at least learn to t
of himself as angry at his wife or jealous of her rather than as entitled t
Over time, I believe denying husbands this right will change their ident
their attitudes, and, ultimately, their behavior.
I conclude that the law has efficacy because legal language molds
bands' marital identities. In marital rape's history in legal discourse, the
traditionally acted as a mere reflection and validation of social norm. Bu
overturning the marital rape exemption, the law transcended that
become an instrument of social change. The law now stands ahead of
stream culture as a social instructor. Through criminal law casebooks
such as People v. Liberta will shape the conceptions future lawyers h
both rape and marriage. Literature and publicity on marital rape law
inform the society's opinions on rape and marriage. Most important
legal image of "marital rape" forces husbands to reevaluate their th
and decisions about rape and marriage. By giving the name "marital
legal credibility, the law, if it could not end, at least allows the battle ag
rape in marriage to begin.
223. Id. at 137.
APPENDIX A
California Penal Code, Title IX, Sections 261 and 262 of after Assembl
Bill 546 Was Chaptered224
Section 261 of the Penal Code is amended to read:

261. Rape is an act of sexual intercourse accomplished with a person not the spo
the perpetrator, under any of the following circumstances:
1. Where a person is incapable, through lunacy or other unsoundness of mi
whether temporary or permanent, of giving legal consent.
2. Where it is accomplished against a person's will by means of force or fear
immediate and unlawful bodily injury on the person or another.
3. Where a person is prevented from resisting by any intoxicating, narcotic
anesthetic substance, administered by or with the privity of the accused.
4. Where a person is at the time unconscious of the nature of the act, and this
known to the accused.
5. Where a person submits under belief that the person committing the ac
the victim's spouse, and this belief is induced by any artifice, pretense,
concealment practiced by the accused, with intent to induce such belief.
Section 262 of the Penal Code is amended to read:
262 (a) Rape of a person who is the spouse of the perpetrator is an act of sexual i
course accomplished against the will of the spouse by means of force or fear
immediate and unlawful bodily injury on the spouse or another.
(b) The provisions of Section 800 shall apply to this section; however, there s
be no arrest or prosecution under this section unless the violation of this sect
is reported to a peace officer having the power to arrest for a violation of th
section or to the district attorney of the county in which the violation o
curred, within 30 days after the violation."
224. 1980 California Statutes and Amendments to the Codes (1980), chap. 587.
APPENDIX B
Legislative History of California's Marital Rape Exemption in the
Year & Bill Changes to Section 261 Changes to Section 262

1980, A.B. 546 The pronouns "she" and "her"Submitted a new sec. 262
and the noun "female" were prohibiting "rape of a person
made gender neutral. who is the spouse of the
perpetrator" accomplished
under force, violence, or
specified threat only. Victim
must report within 30 days of
incident. Punishment varies
from a felony sentence to a
misdemeanor sentence,
depending on the severity of
the offense.
1980, A.B. 2899 Subsec. 2, "where a person No amendment.
resists, but the person's
resistance is overcome by force
or violence," was changed to
read: "where it is accomplished
against a person's will by means
of force or fear of immediate
and unlawful bodily injury on
the person or another."
1981, A.B. 1151 Added subsec. 6: "Where the No amendment.
act is accomplished against the
victim's will by threatening to
retaliate in the future against
the victim or any other person,
and there is a reasonable
possibility that the perpetrator
will execute the threat."
1982, A.B. 3458 No amendment. Added sec. 261.6 to sec. 262.
1983, S.B. 635 No amendment. Lengthened reporting time to
90 days.
1983, S.B. 1094 Changed the language in subsec. No amendment.
1 to read: "where a person is
incapable, because of mental
disease, defect, or disorder or
because of physical disability, of
giving consent, and this is
known or reasonably should be
known to the person
committing the act."
1984, A.B. 401 Added subsec. 7: "Where the No amendment.
act is accomplished against the
victim's will by threatening to
use the authority of a public
official to incarcerate, arrest, or
deport the victim or another,
and the victim has a reasonable
belief the perpetrator is a
public official."
Appendix B-Continued
Year & Bill Changes to Section 261 Changes to Section 262
1984, A.B. 3876 Changed language in subsec. 3 No amendment.

from "the person is prevented
from resisting by any ...
narcotic" to "the person is
prevented from resisting by any
... controlled substance."
1986, A.B. 3485 Changed subsec. I (see above, No amendment.
1983, S.B. 1094) from "because
of mental disease, defect, or
disorder or because of physical
disability" to "because of mental
disorder or developmental or
physical disability."
1986, bill number Changed subsec. 2 (see above, No amendment.
unavailable (ch. 1980, A.B. 2899), "by means of
1299) force or fear" to "by means of
force, violence, or fear," thus
reinserting "violence."
1990, S.B. 2586 The words "duress and menace" No amendment.
were added to subsec. 2.
1994, A.B. 187 Specified the phrase "unconsciousDeleted the previous sec. 262
of the nature of the act": and defined marital rape using
"(A) Was unconscious or subsecs. 2-4, 6-7. The only
asleep. (B) Was not aware, subsections of sec. 261 not
knowing, perceiving, or included were subsec. 1:
cognizant that the act was "Where a person is incapable,
occurring. (C) Was not aware, because of mental disorder or
knowing or perceiving, or developmental or physical
cognizant of the essential disability, of giving legal
characteristics of the act due to consent . . .," and subsec. 5:
the perpetrator's fraud in fact." "Where a person submits under
the belief that the person
committing the act is the
victim's spouse . . ." Subsec.
261.1 and 261.5 are the last
remaining marital rape
exemptions in Title IX of
California's penal code.
SOURCE: C.A. Bastian, "Why Are There Two Rape Statutes in California'? (unpub., Law
School, University of California, Berkeley); Cal. Penal Code. tit. 9, sec. 261 (West 1970); Cal.
Penal Code. tit. 9, sec. 261 (West 1988); Cal. Penal Code. tit. 9, secs. 261, 262 (West Supp. 1993);
Cal. Statutes and Amendments to the Codes ("SAC") (1979), chap. 994; SAC (1980), chap. 587, SAC
(1981), chap. 849; SAC (1983), chaps. 949, 1193; SAC (1984), chap. 1634; SAC (1985), chap.
283; SAC (1986), chap. 1299; Assembly Bill 187, Cal. Legis., 1993-94 Regular sess., Legislative
Counsel's Digest.
Legislative history: California State Archives, Legislative Histories of A.B. 546, A.B. 2899, A.B.
1151, A.B. 3458, S.B. 635, S.B. 1094, A.B. 401, A.B. 3876, A.B. 3485, S.B. 2586.

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American Bar Foundation

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

In 1957, Rollin M. Perkins wrote in his treatise on criminal law, "A

Rebecca M. Ryan recently completed her undergraduate work at Princeton University.

© 1996 American Bar Foundation.

tal to postwar legal scholars' conception of marriage. By upholding the mari-

Origins of the Exemption

In order to understand this change, we must first understan

By marriage, the husband and wife are one person under

4. William Blackstone, Blackstone's Commentaries, ed. George Sharswood

As legal ideology in the 19th century came to value individual rights,

12. For an exploration of the development of constitutional rights in relation to groups

[was] consequential to that of marriage, being its principal end and

significance of my story in legal history and to identify the husband's iden-

Chiseling away Coverture

By insisting that women possessed an individuality and independence under

gained an independent identity, the principle of marital unity prov

The Postwar Contradiction

By the postwar era, the conventional wisdom of legal thought rejected

unity; it submerged the husband's sexual privilege inherent in the theory

II. DESTROYING THE EXEMPTION'S FOUNDATION

At the climax of John Galsworthy's 1908 novel The Man of Prope

in the cool judgment of right thinking men, of men of the world, of

42. Id. at 246.

band's exclusive sexual right to his wife.48 The 18th-century principle of

boundary created the rift to which mid-century scholars clung. This

Perkins and the Modernization of the Exemption

Perkins' argument reflected the changes in legal discourse on mar

53. Perkins (1957) at 115.

marital unity, as a doctrine of subordination. In 1957 Perkins illustrated the

According to Perkins, marriage in the postwar era represented a contract

It is unreasonable to infer that a wife intends to make her body accessi-

54. Id. at 801.

Moreover after an informal parting of the ways a husband acts in a

59. Id. at 722-23.

63. Schouler, Treatise 64.

The Model Penal Code

Perkins's contemporaries at the American Law Institute (ALI) began

The Model Penal Code as a Progressive Text

admitted appeared outdated but still considered important enough

Continuing fornication and adultery as criminal offenses without a

A large proportion of the population is guilty at one time or another of

These practical concerns created ideological challenges to the ortho-

77. Perkins (1957) at 574.

unity, consequently undermining the legal reflection of that ideal. The

assigning criminal punishment to instances of private immorality can

83. Id. at 438.

The Exemption Remains

Although the ALI rejected the crimes in "unlawful" consensual sex, it

88. Id. at 274.

pressed, have defended the exemption's expansion with Perkins's ar

Privacy as a Modem Marital Privilege

this decision. The ALI's recommendation to allow consensual deviate

While it is difficult to see that non-standard sexual intimacy between

Regarding consensual sexual acts, this right to privacy is incontestable. But

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

While Griswold decided an issue unrelated to rape, Justice Douglas's

Summary: Where the Exemption Stood on the Brink of the

The wife's increasingly independent legal identity and, more impor-

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

rape exemption-the codification of that base-within the egalit

III. THE FALL OF THE EXEMPTION

To understand how the legal elite came to reject the privilege