Virginia 1984

In 1981, Edward Kizer married his wife, Jeri. They had a child and began having marital problems. Jeri went to visit her parents in Texas for two weeks. In February of 1983, Edward, who was enlisted in the Navy, moved out and went back to his ship. Jeri testified that the couple had separated at this point and did not wish to be married any longer. Edward argued that the couple was not legally separated and he only moved so their child would not be subjected to their arguing. They had not had sex for six months beginning with Jeri’s trip to Texas. During these six months, Edward petitioned for custody of their son.

Edward was visiting friends in an apartment across the hall from Jeri’s apartment. He knocked on the door asking to use the shower. She did not want to be alone with him so she refused. He kicked the door down, picked her up, carried her to the bedroom, and raped her. The trial judge described it this way.

''He kicked in a locked door and knocked out its frame to gain access into the apartment occupied by the wife and infant son. His physical assault and personal violence upon his wife is recited in detail and it occurred without question. Her struggle to the uttermost trying to avoid being ravished by him, but to no avail, is even admitted by the defendant.''

After the rape, Jeri ran out of the apartment and reported the incident to a police officer. Edward confessed later that day.  Three week later, before his trial, he was awarded custody of their son. At the trial, Edward was found guilty of rape and sentenced to twenty years. However Edward appealed.

In Virginia back then, by virtue of marriage, a wife implied consent to all marital sexual acts including rape. In 1984, a Virginian woman had to signal that she wanted to end the marriage to revoke her implied consent. Notice, unlike many states at the time, she did not have to file for divorce, she just had to indicated that she wanted to file for divorce. Edward argued that she never indicated to him the marriage was over and therefore he could have his way with her anytime. Jeri, as was stated above, felt she had sufficiently indicated that she intended to end the marriage.

In 1984, Kizer v. Commonwealth of Virginia, the Virginia Supreme Court overturned Edward’s rape conviction. The court ruled that Jeri had “acted in such an ambiguous manner that Edward could not have reasonably perceived that the marriage was terminated”. The Dissent argued two things. One the case law previously required “that an objective party be able to determine that the wife acted in such a manner as to indicate the termination of marriage.” The requirement of the husband’s perspective was a new element. Two, Edward’s initiation of a custody dispute “demonstrates the fact that he considered their marriage to have ended.” [1]

Epilogue

Less than a year after the state's top court overturned the guilty verdict against the husband, the Virginia Legislature voted to make spousal rape a crime when a couple are living together, although the punishment is less severe or it may involve counseling. But if there is injury or the couple are living apart, the punishment can be the same as in rape outside of marriage.[NYT]