The Persistence of the Marital Rape Exemption: Law, Ideology, and Inequality

I. Introduction

In 1736, Sir Matthew Hale penned the legal treatise Historia Placitorum Coronæ, stating within it, “[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” [1]. While Hale’s words had no technical legal authority, they did not need to. Hale had simply given voice to an ingrained social ideology that the wife existed in a state of permanent sexual availability, a sexual semi-object, buttressing the common law doctrine that a woman may have well been her husband’s property, as under coverture, a married woman was considered civilly dead [2]. Marital rape was not only excused but rendered conceptually impossible; it is not illegal to violate someone who does not exist.

Hale’s doctrine not only invented marital rape immunity, but it also codified the social belief that normative heterosexual relationships designate ownership. By declaring rape inconceivable within marriage, the law transformed not only marital dynamics but the ordinary meaning of heterosexual sex. While this doctrine has long been removed, the patterns it perpetuated still very much live on. On one level, statutory exemptions have been mainly repealed through various cases, notably People v. Liberta (1984), representing real progress [3]. On another level, there are still substantial legal and social disparities, namely regarding sentencing and cultural presumptions of conjugal sexual duty, between spousal rape and “real” rape. This means that in effect, the form of equality may have been achieved, but not the function.

This article argues that meaningful advancements in sex equality demand more than the removal of exempting language; they require the reframing of definitions of consent, the elimination of social hierarchies within marriage and patriarchal family structures, and broader institutional and educational reforms. Comparative examples from recent legal decisions in Canada and France show that recognizing and substantively addressing issues of equality can lead to meaningful reforms. Although formal marital rape exemptions have been mostly abolished, the underlying ideology of male sexual entitlement within marriage persists legally, socially, and culturally, continuing to reproduce systemic sex inequality.

II. Historical Foundations of the Marital Rape Exemption

Under English common law, the doctrine of coverture held that upon marriage, a wife’s legal identity was subsumed into that of her husband. Under coverture, a wife’s identity was “covered” by her husband’s, meaning that marriage meant a complete surrender. English jurist William Blackstone articulated the wife’s “very being or legal existence” as being “suspended during the marriage” [4]. Within this framework, the wife had no independent legal standing, meaning she could not bring claims against her husband as a separate legal entity, thereby setting up the very institution of marriage as a contract of permanent consent. Because the wife had become simply an extension of the husband at their most equal, and his property at their least, the idea that a woman could be raped by her husband was inconceivable.

Within this paradigm, marriage existed as a property exchange; the wife’s body and labor belonged to her husband. Her role as mother and wife was reliant on her sexual availability, making her husband’s access not necessarily just one of mutual intimacy, but often a duty owed by the wife to fulfill her primary role in marriage and motherhood. The marital rape exemption was therefore self-evident; permanent consent was given by virtue of marriage, and the husband’s immunity was not an anomaly but part of patriarchal family law. Hale’s treatise thus fell in line perfectly with the logical legal progressions of the time; wives were property, control of reproduction was the husband’s prerogative, and marriage was a contract of duty.

III. Early Challenges and Gradual Erosion

Although marital criminal law remained essentially unchanged, gradual erosion and isolated signs of resistance could be seen through the 18th and early 19th century through ecclesiastical courts, which sometimes recognized “unwanted marital sex” as grounds for marital annulment, while criminal law still did not. Some ecclesiastical courts recognized forms of “sexual cruelty” or “excess of intercourse” as grounds for separation. While wives had few legal protections and limited social and economic resources to escape unwanted marital sex, church court systems offered grounds for relief, as they often oversaw spousal disputes. Because English ecclesiastical law did not explicitly identify marital rape or nonconsensual sex as justifying marital separation, the women’s attorneys had to demonstrate that unwanted sexual relations were acts of cruelty [5]. These cases, adressed in the paper, “Marriage is No Protection for Crime”: Coverture, Sex, and Marital Rape in Eighteenth-Century England,” reveal how although marital rape was not necessarily a common discursive topic, it was recognized and understood for some individuals, and although “excessive cruelty” was a burden of proof which became higher for married couples, in the most extreme cases it was occasionally provable, making ecclesiastical courts virtually the only avenues for annulment through these decades, with criminal courts turning a blind eye.

IV. The Abolition Era

The twentieth century brought women’s rights movements that challenged and changed divorce laws and sexual norms. This gradual change and the social advancements that came with it began to shift the conversation surrounding marital rape; however, this progress was incremental and slow, and women often lacked the power to voice their own experiences.

The case of Oregon v. Rideout (1978) shifted this acknowledgement of the possibility of marital rape to the public sphere. In 1977, Oregon passed a law that removed marriage or cohabitation as a defense against rape. In 1978, Greta Rideout brought forward a case under this law, against her husband, John Rideout, accusing him of rape. Rideout became the first man in the United States to be charged with raping his wife while he was still living with her; however, a unanimous jury composed of eight women and four men ended up finding him not guilty. While Rideout was not ruled against, this case brought the idea of marital rape further into the public sphere, making obvious what had long been concealed. While Oregon had adopted no-fault divorce laws in 1971, making it lawful for individuals to dissolve a marriage without proving infidelity or cruelty, many women remained materially and socially dependent on their husbands, and were frequently deterred from leaving abusive marriages due to social shame and lack of financial independence. Despite these structural reasons encouraging women to stay in harmful marriages, Charles Burt, John Rideout’s defense, was quoted as saying, “A woman who’s still in a marriage is presumably consenting to sex. . . . Maybe this is the risk of being married, you know? . . . If this law’s interpretation isn’t corrected, it will bring a flock of rape cases under very bad circumstances. . . . The remedy is to get out of the marital situation” [6]. Burt’s attitude reflects the prevailing ideas of the time, although few would voice them as assuredly; regardless of social mores and the structural reasons women married, once married, wives were subservient rather than autonomous individuals.

The landmark case, People v. Liberta, was the first real change seen to affect marital rape [7]. In 1984, the New York Court of Appeals held that the statute excluding spouses from the definition of rape violated the Equal Protection Clause because there was no rational basis for treating married victims differently from non‐married victims. The court declared that “A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity” [8]. This change triggered a national reform trend; by 1993, all U.S. states had modified or repealed exemptions [9]. However, the content and equality of the new statutes varied widely; some states retained separate evidentiary standards or required more proof in spousal cases. For example, some states still needed proof of “force or threat of force” for spousal rape, or included marital status as a mitigating factor. These distinctions persisted despite the formal removal of immunity, not fully dismantling the legal and cultural logic of sexual entitlement in marriage.

V. Persistence in Contemporary Law

States such as Nevada demand proof of “force or threat of force” in cases of spousal rape, trivializing consent and placing a focus on “violence,” as if rape is not in itself a violent act [10]. Even in states with complete legal neutrality, the amount of violence one must prove to be considered rape is heightened far above similar crimes committed by a stranger, as the level of violence seen as normative in marriage is elevated. Studies show police officers rate perpetrators as less responsible when a partner was the perpetrator, and married men receive significantly shorter sentences in marital rape cases, reflecting a juror bias that marital rape is “less serious” [11] [12]. Both legal distinctions between types of rape and social attitudes meant to undermine the validity of marital rape represent a systemic attack on women. A third of rapes occur in intimate partner relationships, likely more with the lack of reporting accounted for, essentially marking a third of rapes as structurally or socially decriminalized [13].

VI. Theoretical Analysis: Consent, Power, and Structure

This narrative of force as a necessary element to define rape diminishes its existence within a male-dominated society, but also is especially uncompromising within cases of marital rape. Consent may be absent even in instances where force is not present. Due to ingrained heterosexual relationship dynamics, emotional coercion, economic dependence, and the simple normative responsibility of sexual availability, a wife may give in. Therefore, a definition of force ignores the subtle but ubiquitous dynamics that heterosexual marriage upholds by requiring proof of exterior violence to qualify. According to feminist legal theory, primarily as expressed by Catherine MacKinnon’s definitions of substantive equality, underlying power relations are often obscured by the formal equality described as impartiality. U.S. law operates on the principle of formal equality, which holds that everyone must be treated equally under the law, regardless of one’s group membership or the group’s position in society. Substantive equality seeks to correct structural inequalities that marginalize individuals, rather than ignoring them, by differentiating treatment according to the power structures at play. While formal equality may treat individuals equally in form, the reality of their treatment upholds already existing power structures. Property law, gendered legal history, mores in heterosexual marriage, and the marital rape doctrine all promoted a hierarchy and institutionalized consent in the context of marriage. Even with these dynamics no longer at play legally, marriage is still left structurally unequal. With formal law ignoring this context, force becomes enough to govern the existence of rape. However, when these various inequalities are acknowledged through a substantive model, it becomes clear that context is necessary to pursue justice properly. When the factors listed above are understood as potentially coercive, only then can we know the nuances of intimate partner rape and form contextual definitions that take these distinctions into account.

VII. Socio-Legal Implications

The husband’s assumed sexual access to his wife’s body is not simply about one act; it implicates reproduction, domestic labor, and the sexual division of labor. Whether individual men choose to use it or not, the existence of the marital rape exemption, whether socially or legally enforced, has established and evidenced male power in the family. At best, when not used, exemptions to marital rape serve as reminders of how intrinsically linked domination is to heterosexual relationships, romantically and sexually. At worst, they result in rape, establishing and reminding that consent and female livelihood are secondary factors to male pleasure and control, and heterosexual sex is defined by men. Regardless, the husband’s ability to choose carries power alone; women are not given a choice. In a male-dominated society, where notions of domination and submission permeate heterosexual relationships, marital rape functions not as a deviation from normative marital sex but exists within its logic. Considering the family law divorce case, Corbett v. Corbett (1970), where the validity of marriage was stated to require consummation, and consummation is defined by penile-vaginal penetration leading to male orgasm, we see that female sexual submission and male gratification are intrinsic to social notions of normative marriage [14, 15].

Marital rape, however, exists not only as interconnected with sexuality but also as connected to mechanisms of broader social control. Reproduction, family, and economy—three fundamental linchpins to the existence of male domination—are dependent on the sexual availability of women, most traditionally the wife. In the context of reproduction, the husband’s unrestricted access to his wife’s body means control over the number and timing of their children, leaving the wife as the site of reproduction, not a participant. Regarding family, complete patriarchal control organizes the household around submission. The subconscious threat of violence disciplines not only the wife but also her children, who adopt and conform to the silent contract of subordination. Lastly, wives’ participation in the economy is intrinsically tied to reproduction; when wives are controlled reproductively, they are confined domestically. The wife’s bearing of and responsibility for the children extracts unpaid household and reproductive labor. At a minimum, pregnancy and birth disrupt the wife’s workplace continuity, decreasing pay and opportunities for advancement when she returns to paid work and reproducing systemic income disparities. At the maximum, patriarchal control and reproductive responsibility confine the wife entirely to the home, excluding her from economic life altogether. Regardless, a society that responds less harshly to spousal rape than “traditional” rape upholds marriage as the most accurate site of male domination.

VIII. Comparative Reform

A. Canada

In Canada, the formal spousal exemption was removed in 1983, when the Criminal Code was reformed to abolish the marital rape immunity, along with other reforms to the sexual assault provisions which sought to recognise women’s rights to equality and security from sexual violence [16]. The Criminal Code of Canada, interestingly, does not reference rape, but rather sexual assault as a broad and encompassing offense. This broad definition allows for variances in prosecution extremes depending on the offense, but ensures that any non-consensual sexual activity will be held to a high standard. The inclusion of rape as a category within sexual assault also destigmatizes coming forward, as it often feels less inflammatory to report assault rather than rape. Canada’s definition of sexual assault is extremely broad as well, including all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling, as well as rape. Sexual activity is only legal when both parties consent, which is an already narrow definition under Canadian law and is narrowing further. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as “the voluntary agreement . . . to engage in the sexual activity in question” [17]. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity, and is only lawful if the person affirmatively communicated their consent, whether through words or conduct, meaning silence or passivity does not equal consent. It is also important to note that non-consent cannot be excused if the individual accused failed to take proper steps to verify whether consent was given [18]. The recent 2025 R. v. Rioux decision from the Supreme Court of Canada expanded these protections even further, clarifying that courts must consider all available evidence, not just testimony, when deciding if someone had the capacity to consent to sexual activity [19]. These reforms show how effective sexual assault law becomes when it treats consent as a threshold instead of simply the absence of force. A U.S. adoption of the Canadian model would ensure a more standardized and encompassing definition, making prosecution more effective in both marital and non-marital cases, as force is not the singularly defining factor.

While the impacts of the 2025 R. v. Rioux decision are difficult to analyze as the law remains new, it seems as though Canada has been relatively successful in mediating and responding to sexual assault. There are 16 times more rapes per million people in the U.S. than in Canada, even with their definitional differences [20]. While the increasingly robust legislation is likely not the only cause of this difference, it certainly plays a role. That said, Canada still has room for improvement. In a recent, high-profile case, five Canadian ice hockey players accused of sexually assaulting a woman were all acquitted, despite proof that intercourse occurred and the survivor’s testimony of non-consent [21]. Additionally, between 2015 and 2019, 36 percent of sexual assaults that were reported to police resulted in charges, and of these, only about 5.27 percent resulted in a guilty verdict commanding a custody sentence. Sexual assaults committed by a stranger were also more likely to continue to court (69 percent) and result in a guilty decision (56%) relative to sexual assaults where the accused was someone known to the victim [22]. While Canada has had several legal successes, the continued prevalence, although less than in the United States, underscores the necessity of a multifaceted approach to sexual assault, both through legal and social change.

B. France

Following the high-profile Gisèle Pelicot mass-rape case, due to public outcry and awareness, France has strengthened its consent and sexual assault laws. Between 2011 and 2020, Gisèle Pelicot, a French woman, was repeatedly raped and drugged by her husband, Dominique Pelicot. Her husband also had invited dozens of men to rape her while she was asleep [23]. This case sparked massive outcry, making Gisèle a national figure. In October 2025, senators voted 327-0 in favor of the law, which defined rape and sexual assault based on the absence of consent, which must be “freely given, informed, specific, prior, and revocable.” It also explicitly states that silence or a lack of resistance does not imply consent, shifting the legal definition to focus on an affirmative “yes” and moving away from the previous requirement of showing violence, coercion, or surprise to indicate a lack of consent [24]. In U.S. law, this would mean transitioning to an affirmative, explicit definition of consent, with the presumption of consent unaffected by a person’s marital or cohabiting status; consent must be affirmative regardless of relationship status.

IX. Reform and Future

If the United States wants to see true relational equality for women, we must abolish all residual distinctions between spousal and non-spousal rape, standardize sentencing parity and evidentiary standards, explicitly center “consent” in statutory definitions, and integrate marital rape into domestic violence frameworks. This can only be done through a substantive legal model that addresses power differentials and delegitimizes the use of force as the defining factor of assault. Comparative examples from Canada and France illustrate the law’s capacity to prevent and redefine assault. Canada’s shift toward affirmative and ongoing consent, as realized by both parties, as well as a cumulative understanding of evidence and external factors when deciding capacity to consent, and France’s recognition that consent must be freely given and explicit mark compelling and actionable steps for the U.S. to follow if it genuinely wishes to promote gender equality and diminish violence against women.

Beyond legal measures, institutional and cultural measures must be taken for real change to occur. On the institutional side, this includes training for police, prosecutors, judges; national data collection on spousal rape reporting and sentencing; and public education to dismantle myths of marital obligation and “duty sex.” On the cultural side, a shift in social understandings of heterosexuality and consent must occur. How can marital rape be fully realized as rape unless the idea of marriage as equating to sexual obligation is derealized? Laws are only effective when women understand they have the power to challenge patriarchal sexual scripts in law, religion, and culture. Marital rape must be recognized not as episodic, but systemic violence.

X. Conclusion

In essence, the marital rape exemption never existed in the vacuum of patriarchal marital law. It is a mechanism both affected by and affecting social ideals of female submission. The ever-present threat of male entitlement conditions women into submission, deviation meaning risking violence. Whether married or not, intimate partner violence carries a different social weight than stranger violence. The power of the exemption remains not because it has been written into law, but because it has been written into social definitions of heterosexual sexuality. Complete elimination through equality law is insufficient unless combined with a social reckoning and a revised understanding of assumptions of entitlement in heterosexual relationships. The purpose of the law is not only to make marital rape illegal, but also to destroy the ideology that made it possible by establishing a jurisprudence of equality which acknowledges women as complete agents of consent, autonomy, and justice. How many women must be raped by their husbands before it is considered sex inequality? How many fictions about “real rape” must be recorded? So long as society and the law treat spousal rape as unique, we repeat Hale’s original doctrine that marital rape is different and perhaps nonexistent.

Footnotes

[1] Richard Keyser, Ch. 4.1. Primary Source: William Blackstone on Marriage and Coverture, 1765 in American Legal History to the 1860s (2020), chap. 4.1, https://wisc.pb.unizin.org/ls261/chapter/ch-4-1-william-blackstone-on-coverture-1765/.

[2] HD33 (Published 1986) - Marital Rape, Virginia State Legislative Information System, https://rga.lis.virginia.gov/Published/1986/HD33.

[3] People v. Liberta, 64 N.Y.2d 152 (1984).

[4] Keyser, “Blackstone.”

[5] Lisa Forman Cody, “‘Marriage Is No Protection for Crime’: Coverture, Sex, and Marital Rape in Eighteenth-Century England”, Journal of British Studies 61, no. 4. (2022): 809, https://www.cambridge.org/core/product/identifier/S0021937122001186/type/journal\_article.

[6] Cynthia Gorney, “The Rideouts: Case Closed, Issue Open: Questions on Oregon’s Landmark Rape Case An Acquittal -- and Question -- in Oregon’s Landmark Rape Case,” The Washington Post, Dec. 29, 1978, https://search.proquest.com/newspapers/rideouts-case-closed-issue-open/docview/146800042/se-2?accountid=11311.

[7] 64 N.Y.2d 152.

[8] Catharine A. MacKinnon, Sex Equality, 3rd ed. (Foundation Press 2016), 937.

[9] Jennifer A. Bennice and Patricia A. Resick, “Marital Rape: History, Research, and Practice,” Trauma, Violence, & Abuse 4, no. 3 (2003): 228–246, https://journals.sagepub.com/doi/10.1177/1524838003004003003.

[10] “Marital Rape States 2025,” World Population Review, accessed Nov. 13, 2025, https://worldpopulationreview.com/state-rankings/marital-rape-states.

[11] Benjamin Hine & Anthony Murphy, “The Impact of Victim-Perpetrator Relationship, Reputation and Initial Point of Resistance on Officers’ Responsibility and Authenticity Ratings towards Hypothetical Rape Cases,” Journal of Criminal Justice 49, no. 1 (2017), https://linkinghub.elsevier.com/retrieve/pii/S0047235216301167.

[12] Kirsty Osborn, Josh P. Davis, Susan Button, and John Foster, “Juror Decision Making in Acquaintance and Marital Rape: The Influence of Clothing, Alcohol, and Preexisting Stereotypical Attitudes,” Journal of Interpersonal Violence 36, nos. 5-6 (2021), https://journals.sagepub.com/doi/10.1177/0886260518768566.

[13] “Homepage,” RAINN, accessed Nov. 16, 2025, https://rainn.org.

[14] Corbett v. Corbett, [1970] 2 All ER 33.

[15] MacKinnon, Sex Equality, 758–59.

[16] Jennifer Koshan, “The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study,” in The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=3037131.

[17] Criminal Code (R.S.C. 1985, c. C-46), Government of Canada, https://laws-lois.justice.gc.ca/eng/acts/c-46/section-273.1.html.

[18] “The Law of Consent in Sexual Assault,” LEAF, https://www.leaf.ca/news/the-law-of-consent-in-sexual-assault.

[19] R. v. Rioux, 2025 SCC 34.

[20] “Canada vs United States: Crime Facts and Stats,” Nation Master, accessed Nov. 24, 2025, http://www.nationmaster.com/country-info/compare/Canada/United-States/Crime.

[21] Nadine Yousif, “Five Ice Hockey Players Found Not Guilty in Canada Sexual Assault Case,” BBC, July 24, 2025, https://www.bbc.com/news/articles/cn0qlwnyy70o.

[22] “Criminal Justice Outcomes of Sexual Assault in Canada, 2015 to 2019,” Statistics Canada, Nov. 6, 2024, https://www150.statcan.gc.ca/n1/pub/85-002-x/2024001/article/00007-eng.htm.

[23] Francesca Gillett and Laura Gozzi, “Gisèle Pelicot Rape Trial: Ex-Husband Dominique Jailed for 20 Years,” BBC, Dec. 19, 2024, https://www.bbc.com/news/articles/c89xde5qzvgo.

[24] The Associated Press, “France Adopts Consent-Based Rape Law in the Wake of Landmark Gisèle Pelicot Case,” NBC News, Oct. 29, 2025, https://www.nbcnews.com/world/europe/france-adopts-consent-based-rape-law-wake-landmark-gisele-pelicot-case-rcna240598.