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Lawyers Manual - Unified Court System

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182 Jill Laurie Goodman<br />

it was the courts, not the legislature, that acted. In 1984, the <strong>Court</strong> of Appeals<br />

decided People v Liberta5 holding New York’s marital rape exemption<br />

unconstitutional. Rationales for the marital exemption were, the <strong>Court</strong> said,<br />

“either based upon archaic notions about the consent and property rights incident<br />

to marriage or are simply unable to withstand even the slightest scrutiny.” 6 At<br />

the time Liberta was decided, 40 states still protected men who raped their<br />

wives from criminal sanctions. 7 Many still do. Even in New York, vestiges of<br />

the marital rape exemption remain on the books. 8<br />

Although the most serious statutory obstacles to rape prosecutions have<br />

been removed, ambivalence still underlies the response to rapists and rape<br />

victims, and that ambivalence permeates the treatment of women, such as<br />

victims of domestic violence, who are raped by men they know. They are not<br />

considered, to use University of Southern California professor Susan Estrich’s<br />

words, victims of “real” rape, a concept, she argues, that applies in popular<br />

imagination only to women raped by strangers. 9 According to Professor Estrich,<br />

“What the law seems to say and what it has been in practice are two different<br />

things. In fact, the law’s abhorrence of the rapist in stranger cases . . . has been<br />

matched only by its distrust of the victim who claims to be raped by a friend or<br />

neighbor or acquaintance.” 10<br />

Sexual violence in marriage and other intimate partner relations is pervasive,<br />

if often denied. Diana H. Russell, in her ground-breaking work on marital rape,<br />

interviewed over 800 married or formerly married women and found that 14%<br />

of her respondents said they had been raped by their husbands, a figure that she<br />

believes grossly underestimates the incidence of marital rape. 11 Other researchers<br />

put the figure as high as 25%. 12 The proportion of domestic violence victims in<br />

Russell’s study who were also rape victims, not surprisingly, is far greater. Nearly<br />

half of the married women who were physically abused reported that rape was a<br />

problem at least of equal dimension as other kinds of physical abuse. 13 Another<br />

researcher has suggested that sexual assault may be the most common form of<br />

intimate partner violence. 14<br />

The trauma of intimate partner and marital rape is generally underestimated<br />

as well. Yet, according to the women in Russell’s study, rape by a husband is<br />

every bit as damaging as rape by a stranger. The lasting impact of wife rape is<br />

even greater than that of stranger rape. Rape by a husband had “great” long-term<br />

effects on the lives of 52% of wives, but on only 39% of victims of stranger<br />

rape. 15 Post traumatic stress disorder is a common aftermath of sexual assault by<br />

an intimate partner, 16 and, indeed, two of the women in Russell’s study<br />

attempted suicide in response to marital rapes. 17

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