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On Rape and the Sanctity of Matrimony

Published online by Cambridge University Press:  12 February 2016

Ernst Livneh
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Extract

“The morning after a certain night on which Soames at last had asserted his rights and acted like a man, he breakfasted alone….

He ate steadily, but at times a sensation as though he could not swallow attacked him. Had he been right to yield to his overmastering hunger of the night before and break down the resistance which he had suffered now too long from the woman who was his lawful and solemnly constituted help-mate?

The incident was really of no great moment; women made a fuss about it in books; but in the cool judgment of right-thinking men, of men of the world, such as he recollected often received praise in the Divorce Court, he had but done his best to sustain the sanctity of marriage, to prevent her from abandoning her duty ….”

In these hints Galsworthy the artist describes the attitude of English society in 1886. Galsworthy the member of Lincoln's Inn writing in 1906 also knows it as the attitude of English law: a married person has the right of connubium at any time, not dependent on his spouse's love or willingness, and nothing a husband does to compel his wife to have with him normal sex relations will be considered as rape upon her.

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Articles
Information
Israel Law Review , Volume 2 , Issue 3 , July 1967 , pp. 415 - 422
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1967

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References

1 (1964) vol. 4, 18 P.D. 200.

2 (1966) vol. 2, 20 P.D. 136.

3 Galsworthy, , Forsyte Saga, Book, I, Part III, Chap. IVGoogle Scholar.

4 (1964) Vol. 4, 18 P.D. 200 at 219.

5 The expression is found in Gen. XXXI, 26Google Scholar. See also Deut. XXI, 10–14.

6 (1966) vol. 2, 20 P.D. 136 at 139.

7 The reference is to the posthumous (1800) History of the Pleas of the Crown I, 629Google Scholar: “a husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract.”

8 See n. 4 above.

9 (1964) vol. 4, 18 P.D. 141 at 156.

10 Apelstein v. Aharoni (1961) 15 P.D. 682 at 699.

11 22. Q.B.D. 23.

12 Wills, J. objected to Hale's doctrine, but went with the majority in acquitting the husband of assault (at 33 and 37). Field, J. would have denied rape and assault alike (at 57). Stephen, J., who had in the first edition of his Digest of the Criminal Law (1877) suggested “that a husband might under certain circumstances be indicted for rape on his wife“, mentioned in the judgment (at 46) that he had withdrawn this statement in the then last edition (apparently the 4th ed. 1887).

13 (1949) 2 All E.R. 448; 33 Cr. App. R. 216.

14 (1954) 2 Q.B. 282.

15 ib., at pp. 290 and 292.

16 ib. at the end.

16a What is stated above refers in fact only to the attitude of the English criminal courts. In civil (i.e. matrimonial) matters the Privy Council at least hinted that what the husband called “the rape of Lucrece” and the threat of repetition entitled the wife to leave him: Lang v. Lang [1955] A.C. 402 at 420.

16b Sec. 139 of Cap. 13 in The Statute Law of Cyprus (Revised ed. 1950).

17 Originally 10 years; repeatedly raised—now 15 years.

18 U.S. Code, Title 18: Crimes and Criminal Procedure, §§ 113, 1153, 2031, 3185, 3242, 3567.

19 A number of examples are given by the American Law Institute in the Comments on 207.4 of the Tentative Draft No. 4 of the Model Penal Code (pp. 266–71).

20 Model Penal Code, Proposed Official Draft, § 213.1. See also §§ 213.3, 213.4.

21 Model Penal Code, Tentative Draft No. 4, p. 245.

22 ibid., note 108.

23 ibid., § 207.4(6), Proposed Final Draft § 213, 6(2).

24 Art. 331 of the original text of 1808.

25 Garçon, , Code Pénal Annoté II (1956) pp. 194–95Google Scholar, no. 23, quoting Cass. 19 mars 1910 and Alger 28 avr. 1887. The latter judgment refers already to a fixed doctrine of the courts. See also Rousselet, & Patin, Précis de Droit Pénal Special (6e ed. 1950) pp. 311–12Google Scholar and authors quoted by Garçon.

26 I am obliged for this information to Prof. Dr. L. Boim.

27 “Verbrechen und Vergehen wider die Sittlichkeit”. In: Vergleichende Darstellungen des deutschen und ausländischen Strafrechts. Besonderer Teil, IV. Band (1906) pp. 103–04.

28 Marcus “Das Strafrecht Däneks”. In: Das ausländische Strafrecht der Gegenwart (1955) p. 163.

29 Sec. 152(1)(a),(c); Sec. 153 in respect of threat (or deception). Sec. 155 is so illogical that it ought to be revised even apart from the question of unlawfulness.