Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

New Jersey Marital Rape: A History and the Law Today

In my nearly twenty years as a New Jersey Divorce Attorney, I have had clients come to me raising issues of domestic violence.  Of course, I have heard some horrific stories of abuse.  However, I have had a number of client’s share with me that they are the victim of rape at the hands of their spouse.  Needless to say, this takes a terrible situation to a whole new level. 

When I am handling a New Jersey divorce containing this issue, I immediately investigate whether my client has suffered permanent emotional or psychological damage.  Specifically, I gently ask whether or not they are presently (or have engaged in the past) in therapy.  I ask this question for two reasons.  First, I want to know the degree that my client has (or continues to) suffer.  Second, pursuant to Tevis v. Tevis, 79 N.J. 422 (1979), my client may have a financial claim against their spouse due to the heinous act.

In Tevis, the wife testified that she had suffered serious and permanent bodily injury due to a savage beating at the hands of her cowardly husband.  Ultimately, she was awarded $35,000 for her injuries.  As this paramount case developed, it is clear that such a “personal injury” claim is to be brought in the divorce action or the claim is deemed moot.  Therefore, I am diligent is building my client’s case by ensuring that she continues with her treatment, requesting narrative reports from her treating physicians and the like.

For obvious reasons, many victims are afraid to speak out.  It is my experienced opinion that this psychological phenomenon is enhanced when the perpetrator is one’s spouse.  While domestic violence is treated seriously in today’s society, this was not always the case. Years ago, domestic violence calls were rarely answered and when they were, they were not treated with gravity. This was particularly a large issue for females in the community because, as victims of domestic violence, they had no outs or escape methods from their husbands.

Historically, the most common act of domestic violence was rape, especially marital rape. However, initially marital rape was not perceived as a crime under New Jersey law. Pursuant to the former New Jersey laws, a married man could not be convicted of rape. This was known as the marital exemption for rape and was prevalent in many states, not just New Jersey, across the nation.

The exemption’s roots were dated back to the seventeenth century English jurist, Lord Hale, who was quoted saying “the 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.” Aside from his beliefs, the times reflected the notion that women were considered their men’s property and therefore could not legally claim that their “owner” had raped them.

While these traditional reasons for implementing the marital exemption remained somewhat in society, as time evolved, so did the justifications. The most frequented claim that men continued to make in New Jersey was that it would be virtually impossible to prove a marital rape case. Since rape was already a he-said she-said battle, proving that a husband who loved and cherished his wife had raped her would be preposterous. Many men claimed that their wives were merely fabricating and vindictive, and that in fact they had not been sodomized.   

No matter the justification, ultimately the courts realized that such an exemption was clearly unconstitutional. New Jersey courts determined that there was no basis for distinguishing between married and unmarried men in cases involving rape. The Supreme Court therefore adopted N.J.S.A. §2c:14-5(b), which states that “no actor shall be presumed to be incapable of committing a crime…because of marriage to the victim.” This statute was especially effective because a series of studies revealed that marital rape actually had more serious of an effect on women than non-marital rape did. The studies illustrated that marital rape is often just as violent as non-marital rape. Moreover, they illustrated the fact that marital rape tends to have more traumatic effects on the victim than any other kind of rape possible.

If you are a victim of marital rape, it is important to know that you are not alone and that my office is here to help you.