Joann M. Ross
Department of History, University of Nebraska - Lincoln, Lincoln NE 68588, UNITED STATES OF AMERICA.
This study examines the history of marital rape and related topics in the United States within the broader context of women’s legal and political rights. The project demonstrates the interplay between women’s activists, legislators, the criminal justice system, and an involved public necessary to change both societal and legal views on spousal rape, and eventually its criminalization in all fifty states.
Chief Justice Matthew Hale first announced the legal impossibility of rape in marriage in a seventeenth-century treatise in which he established the irrevocable consent theory, which argued that men had an absolute right to sexual relations within the bonds of marriage, and provided the foundation for a marital rape exemption. While modern case law and legal commentary questioned the veracity of Hale’s presumption, it remained the basis for successful arguments against spousal rape laws for centuries in both Great Britain and the United States.
Concentrating on approaches to criminalizing marital rape in three of the fifty states, this dissertation provides a reasonable representation of the existence of the marital rape exemption in America, arguments used to maintain the exemption, and various methods used to end this form of gendered violence and gender discrimination accepted in this country until the 1970s. It explores key issues relevant to the social and legal history of spousal rape in the United States: the rise of domestic violence and sexual assault movements that began in the late 1970s and the promulgation of rape shield laws, which provided evidentiary protections for rape victims during trial.
Ultimately, this project demonstrates several of the important victories that women made in areas of personal autonomy over their bodies, which led to the criminalization of rape in marriage. Over the course of nearly one hundred and fifty years, social and legal attitudes toward spousal rape – actually, sexual assault in general – resulted in greater legal protection for the rights of married women. The elimination of the marital rape exemption, better trained law enforcement, increased services provided by advocates, and a more informed public all contributed to increased visibility about the existence of marital rape and active responses to that crime.