Lawyers Manual - Unified Court System

182 Jill Laurie Goodman
it was the courts, not the legislature, that acted. In 1984, the Court of Appeals
decided People v Liberta5 holding New York’s marital rape exemption
unconstitutional. Rationales for the marital exemption were, the Court said,
“either based upon archaic notions about the consent and property rights incident
to marriage or are simply unable to withstand even the slightest scrutiny.” 6 At
the time Liberta was decided, 40 states still protected men who raped their
wives from criminal sanctions. 7 Many still do. Even in New York, vestiges of
the marital rape exemption remain on the books. 8
Although the most serious statutory obstacles to rape prosecutions have
been removed, ambivalence still underlies the response to rapists and rape
victims, and that ambivalence permeates the treatment of women, such as
victims of domestic violence, who are raped by men they know. They are not
considered, to use University of Southern California professor Susan Estrich’s
words, victims of “real” rape, a concept, she argues, that applies in popular
imagination only to women raped by strangers. 9 According to Professor Estrich,
“What the law seems to say and what it has been in practice are two different
things. In fact, the law’s abhorrence of the rapist in stranger cases . . . has been
matched only by its distrust of the victim who claims to be raped by a friend or
neighbor or acquaintance.” 10
Sexual violence in marriage and other intimate partner relations is pervasive,
if often denied. Diana H. Russell, in her ground-breaking work on marital rape,
interviewed over 800 married or formerly married women and found that 14%
of her respondents said they had been raped by their husbands, a figure that she
believes grossly underestimates the incidence of marital rape. 11 Other researchers
put the figure as high as 25%. 12 The proportion of domestic violence victims in
Russell’s study who were also rape victims, not surprisingly, is far greater. Nearly
half of the married women who were physically abused reported that rape was a
problem at least of equal dimension as other kinds of physical abuse. 13 Another
researcher has suggested that sexual assault may be the most common form of
intimate partner violence. 14
The trauma of intimate partner and marital rape is generally underestimated
as well. Yet, according to the women in Russell’s study, rape by a husband is
every bit as damaging as rape by a stranger. The lasting impact of wife rape is
even greater than that of stranger rape. Rape by a husband had “great” long-term
effects on the lives of 52% of wives, but on only 39% of victims of stranger
rape. 15 Post traumatic stress disorder is a common aftermath of sexual assault by
an intimate partner, 16 and, indeed, two of the women in Russell’s study
attempted suicide in response to marital rapes. 17