- In 1977 New Jersey, Albert Smith argued successfully that he could not have raped his spouse, because of Common Law.
- In 1979 the Superior Court of New Jersey, Appellate Division upheld the ruling.
Research is a progressive process and there is good news at the end of the tunnel. In 1981, the New Jersey Supreme Court overturn the Appellate Division ruling. They ruled that the state's rape statute,“any person who has carnal knowledge of a woman forcibly against her will”, did not include an exemption for a married women.[1] This was already established, but the exemption was found for the first time in New Jersey history, 1977, in the so called Hale's Rule:
But 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 the husband which she cannot retract. ~ Chief Justice of England Matthew Hale - History of the Pleas of the Crown - 1736[2]The New Jersey Supreme Court did something very interesting. "The New Jersey court said that Hale had simply written his opinion in a legal paper, and that English law in Hale's own time indicated that a husband could be prosecuted for raping his wife." Hale's Rule was never applied in England itself.
The court became the first high state court to affirm that the marital exemption did not exist. After Smith's charges were reinstated, the he was acquitted of rape but convicted of assault and battery.[NYT]
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