From the 11th century to the 16th century, a woman lost her identity upon marriage and the law
denied her political power and status under the feudal doctrine of coverture.89
A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring
order within the family.90
This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying,
the woman becomes one with her husband. She had no right to make a contract, sue another, own
personal property or write a will.91
II. The marital exemption rule
In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable
implied consent theory that would later on emerge as the marital exemption rule in rape. He stated
that:
[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract.92
The rule was observed in common law countries such as the United States of America (USA) and
England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would
be rape if committed against a woman not his wife.93 In those jurisdictions, rape is traditionally
defined as "the forcible penetration of the body of a woman who is not the wife of the perpetrator."94
The first case in the USA that applied the marital exemption rule was Commonwealth v.
Fogerty95 promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it
would always be a defense in rape to show marriage to the victim. Several other courts adhered to a
similar rationale with all of them citing Hale's theory as basis.96
The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with
absolute immunity from prosecution for the rape of his wife.97 The privilege was personal and
pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or
abets another person in raping her.98
In the 1970s, the rule was challenged by women's movements in the USA demanding for its abolition
for being violative of married women's right to be equally protected under rape laws.99
In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the
rule in cases where the husband and wife are living apart pursuant to a court order "which by its
terms or in its effects requires such living apart," or a decree, judgment or written agreement of
separation.100
In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New
York declared the same unconstitutional in People v. Liberta101 for lack of rational basis in
distinguishing between marital rape and non-marital rape. The decision, which also renounced
Hale's irrevocable implied consent theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing between marital rape and nonmarital rape.
The various rationales which have been asserted in defense of the exemption are either based upon
archaic notions about the consent and property rights incident to marriage or are simply unable to