Warren v. State Nov. 6, 1985 Smith, J.

Fact Daniel Steven Warren was indicted for the rape and aggravated sodomy of his wife. They were living as husband and wife at the time. Issues: 1. Is there implicit marital exclusion within the rape statute, which makes it legally impossible for husbands to rape their wives? 2. Is there implicit marital exclusion within the aggravated sodomy statute that makes it legally impossible for husband to commit aggravated sodomy to his wife (based on consent)? Would the application of rape and aggravated sodomy statutes to Warren deprive him of his due process rights?

upon marriage, the legal existance of a woman is incorporated and consolidated into that of her husband. he cannot be convicted of raping himself

Other justifications to marital rape: y prevention of fabricated charges y preventing wives from using rape charges for revenge y preventing state intervention into marriage so that possible reconciliation will not be thwarted Theories and justifications are no longer valid, if they ever had any validity. Hale's implied consent theory was created at at time when marriages were irrevocable and wives were subservient to their husbands. It is now held to be inapplicable. Likewise, Chattel and Unity of identity theories have also been set aside. Now there have been many changes regarding the status of women: y Constitutional protection to liberty and person equal among men and women y Husband s surname is no longer imposed on a wife y Domicile of husband is no longer imposed on wives y Husband no longer head of the family and wife is subject to him y Both parties have a joint and several duty to raise and support children Rape "is highly reprehensivle, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim. It is the "ultimate violation of self" It's incredible to think that a state would allow an implied consent term to all marriage contracts, leaving all wives unprotected from the ultimate violation of self. The implied consent theory to spousal rape is illogical and obviously conflicts with our Constitutional and statutory laws and our regard for all citizens. Justifications are likewise without efficacy. No other crime in which all of the victims are denied protection simply because victims might fabricate charges; no evidence that wives flood attorneys with revenge-filled charges, etc.

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Held: Issue 1: NO. The theories and other reasons justifying marital rape are inapplicable and contravene the Constitutional protection given to all citizens. Besides, the plain reading of the law shows that there is no marital exclusion in the rape statute. 3 theories of marital rape exemptions: 1. Lord Hale's contractual theoryo "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 retreat" 2. Wife being husband's chattel or property o rape is nothing more than a man using his own property Unity in marriage/unity in person theory-

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The plain reading of the statute indicates that there is NO MARITAL EXCLUSION. Rape is committed "when he has carnal knowledge of a female forcibly and against her will".

Issue 2: NO. There can be no common law marital exemption under the aggravated sodomy statute based on "implied consent". Sodomy is defined as "the carnal knowledge and connection against the order of nature by man with a man, or in the same unnatural manner with woman". How Rape and Sodomy are different: Consent can be raised as a defense in rape, but not in sodomy. By saying that the victim consented, there can be no rape, but there would be sodomy. "One who voluntarily particiaptes in an unnatural act of sexual intercouse with another is also guilty of sodomy. One who does not so participate is not guilty." Issue 3: NO. Due process law requires that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. Rape and aggravated sodomy statutes are broadly written and they are plain on their faces.