State of New Jersey v. Albert Smith (1979) 404 A.2d 331.

State of New Jersey v. Albert Smith (1979) 404 A.2d 331.

Defendant Albert Smith was prosecuted under New Jersey statutes annotated Section 2a: 138-1 for the rape of his wife. Defendant filed a motion to dismiss the indictment charging him with raping his wife on the grounds that a man may not be convicted under the New Jersey rape statute for rape of his V"ife, even though the Legislature, in a new code soon to be effective, speaks clearly of its determination that a spouse should not be excluded in such matters.

The trial judge dismissed the indictment charging Smith with raping his wife, writing an opinion in which the trial judge reluctantly held that a man could not be prosecuted at common law for raping his wife. See 148 N.J. Super. 219,372 A. 2d 386 (County Court 1977).

The Superior Court of New Jersey, Appellate Division, granted the motion of the state for leave to appeal. In its opinion the Appellate Division stated, "Although a great deal of that which is said in the opinion below has our collegial agreement, including our hardy concurrence as to the fatally anachronistic nature of Sir Matthew Hale's view regarding the eternal irrevocability of a wife's consent to submit to her husband sexu-ally, we do not all uniformly subscribe to everything that is there said. We readily acknowledge the responsibility of all judges not to depart from pronouncements of superior appellate courts (citations omitted). We part company with Judge Scalera (the trial judge) only in the unlikely event his opinion is read to suggest that the common law is untouchable as far as trial courts are concerned . . . the common law has always had the inherent capacity to develop and adapt itself to current needs; indeed, if this were not true it would have withered and died long ago rather than have grown and flowered so gloriously. While these changes almost invariably are left to legislative action or appellate court pronouncement, we see no reason why the trial court, in situations such as this one where neither legislative fiat nor superior precedent constrains, should not contribute to this growth process on the rarely appropriate occasion."

The Appellate Division continued, " there is ample reasonable cause to believe that the common law rule excluding a husband from a statute condemning rape has heretofore obtained in New Jersey if for no other reason than because the rule did exist at common law and has not been abrogated here by legislation or judicial decision. (Citations omitted.) But even were we to indulge the present inclination of some of us to declare that in this more enlightened age there is no longer room for such parochial thinking, we could not apply the effect of such determination retrospectively. (Citation omitted.) Dismissal of this count of the indictment by Judge Scalera was imminently correct In any circumstance and is affirmed.

"Having thus decided the case before us we will not undertake to address further the substantive question or enunciate a rule of law. Considerations relating to the nature of the matter, the genuine ambivalence on the part of at least one of us with respect to the question, the absence of need in the present case for such a determination and the unlikelihood that the problem will again arise in view of the imminence of the effective date of the new code of criminal justice produced this restraint. In the new code the legislature speaks clearly of Its determination that a spouse should not be excluded or enjoy any preferential treatment in matters such as this. N.J.S.A. 2C: 14-5 (b)."

(Editor's Note: Legislation similiar to that enacted in New Jersey, removing the spousal exception from the rape law, has been introduced in many legislatures around the country. For example, House Bill 904 was introduced in the Florida House of Representatives In 1979 and that bill stated, • Nothing In this chapter shall preclude the bringing of a charge of sexual battery by an individual against a person who is his or her legal spouse." Similiar legislation was introduced and enacted into law in California this year. That bill, Assembly Bill 546, passed the California Assembly on a vote of 50 to 18. The Senate concurred and Governor Brown signed the bill into law. That law removes reference to gender from the rape law and creates a new criminal category for rape of a spouse by force or threat of force.)[1]