holding that English common law rule of marital exemption did not apply to the New Jersey rape statute
How later courts described this case
- holding that English common law rule of marital exemption did not apply to the New Jersey rape statute
- discussing "the inequities of a medieval rule that denies some women protection against sexual attack and treats them as sexual property of their husbands"
- explaining that the common law is “subject to change by the Legislature”
- discussing the history of the marital exemption to the crime of rape at English common law
Written by the judges who cited it.
The opinion
SULLIVAN, J.
(concurring in result).
Whatever may have been the common law rule in seventeenth century England in the time of Sir Matthew Hale, it never was the law of this State that there was a marital exemption from the law of rape and that a husband could not be guilty of the rape of his wife.
Rape is and has always been a statutory crime in the State of New Jersey. Over the years, the statutory language remained virtually unchanged. At the time of the offense in question it provided: “Any person who has carnal knowledge of a woman forcibly against her will ... is guilty of a high misdemeanor.” N.J.S.A. 2A:138-1 (repealed).
The statute has never contained any exception or exemption. I would construe it to mean exactly what it says and would hold that a husband who had carnal knowledge of his wife forcibly and against her will was guilty of rape.
I, therefore, concur in the result reached by the majority but for the reasons heretofore stated.
SULLIVAN, J., concurring in the result.
For reversal and reinstatement — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.
For affirmance — None.