# State v. Smith

> Supreme Court of New Jersey · February 10, 1981 · 85 N.J. 193

URL: https://www.frixlaw.com/law-library/cases/9711625

## Case

- **Full name:** State of New Jersey, Plaintiff-Appellant, v. Albert Smith, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** February 10, 1981
- **Citations:** 85 N.J. 193; 426 A.2d 38; 24 A.L.R. 4th 90; 1981 N.J. LEXIS 2587
- **Precedential status:** Published
- **Opinion:** Concurrence by Sullivan
- **Judges:** Pashman, Sullivan
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711625

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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 N.J.S.A. 2A:138-1 (repealed).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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711625. Public record. Not legal advice.