The Sex Right: A Legal History of the Marital Rape Exemption


  • Rebecca M. Ryan

    1. Rebecca M. Ryan recently completed her undergraduate work at Princeton University. She now lives in Washington, D.C., where she works for the National Center on Institutions and Alternatives. At NCIA, Ms. Ryan develops and drafts alternative sentencing plans for criminal defendants in state and federal courts. She also counsels juvenile sex offenders within NCIA's clinic wing, the Augustus Institute. She thanks Hendrik Hartog for his unfailing guidance and encouragement and Elise Meslow for her invaluable edits and criticisms.
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How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period focusing World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like “rape,”“marriage,” and “husband” validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.