State v. Smith

• Decision Date: 21 January 1977
• Citation: 372 A.2d 386,148 N.J.Super. 219
• Parties: STATE of New Jersey, Plaintiff, v. Albert SMITH, Defendant. (Criminal), New Jersey
• Court: New Jersey County Court

Page 219

148 N.J.Super. 219

372 A.2d 386

STATE of New Jersey, Plaintiff, v. Albert SMITH, Defendant.

Essex County Court Law Division (Criminal),

New Jersey.

Jan. 21, 1977.

Paul Murphy, Asst. Prosecutor, for the State (Joseph P. Lordi, Prosecutor of Essex County, attorney).

Michael Giles, Orange, for defendant (Lorber, Giles & Barone, Orange, attorneys; Susan J. Barone, Newark, on the brief and on counsel).

SCALERA, J.S.C., Temporarily Assigned.

Albert Smith stands accused of raping his wife in violation of N.J.S.A. 2A:138--1, and of having committed an atrocious assault and battery upon her.

Defendant moves to dismiss the rape charge, asserting that 'a husband cannot rape his wife as a matter of law.' No court in New Jersey has had occasion to rule directly upon this issue in any reported decision.

The State charges that, on October 1, 1975, defendant 'did have carnal knowledge of Alfreda Smith forcibly against her will, contrary to the provisions of' N.J.S.A. 2A:138--1. At oral argument it was stipulated that defendant and Alfreda Smith were legally husband and wife on the date the offense is alleged to have occurred. Thus the issue is one cognizable under R. 3:10--1 Et seq.

Defendant contends that New Jersey's statutory provision covering the crime of rape simply codified the pre-existing common law governing that offense and that, at common law, it is settled that a husband cannot be prosecuted and convicted for raping his wife. Moreover, defendant argues that the rape statute in New Jersey should not be judicially expanded to cover such a situation lest the court invade and usurp a legislative prerogative.

The State asserts that our present rape statute, by its terms, proscribes rape of Any woman victim regardless of any relationship with or to the person charged. It is urged that this court declare the intent of the Legislature to be that a husband may be prosecuted and convicted of rape of his wife where he engages in forcible intercourse without her consent.

The complex involvement of the philosophical, societal and policy considerations raised are at once evident.

The pertinent part of N.J.S.A. 2A:138--1 provides that

Any person who has carnal knowledge of a woman forcibly against her will * * * is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 30 years, or both; * * *.

At common law rape was defined as, 'The carnal knowledge of a woman forcibly and against her will.' 4 Blackstone, Commentaries *210.

In 1796 New Jersey codified the crime of rape in 'An Act For The Punishment of Crimes,' § VIII, 'Rape, What, and How Punished,' defining the offense precisely as in Blackstone, as 'carnal knowledge of a woman, forcibly and against her will' by 'any person' L.1796. In 1887 the word 'and' was deleted leaving the wording, 'forcibly against her will.' L.1898, c.235. Subsequent statutory modifications have not changed this language but have dealt with additional proscriptions engrafted onto the original enactment. L.1905, c.159; L.1910, c.161; L.1952, c.94; State v. Heyer, 89 N.J.L. 187, 98 A. 413 (E. & A. 1916); State v. Faas, 39 N.J.Super. 306, 307, 121 A.2d 69 (Essex Cty. Ct., 1956) aff'd Sub nom. Application of Faas, 42 N.J.Super. 31, 125 A.2d 724 (App.Div.1956).

The principle that a husband as prime actor cannot be guilty of rape committed upon his lawful wife appears to have been accepted without exception by courts and authorities that have treated the subject in this country. Annotation 'Criminal responsibility of husband for rape, assault to commit rape, on wife,' 84 A.L.R.2d 1017, 1019 (1962), and the authorities collected therein at 1022; 1 Wharton's Criminal Law and Procedure, § 300 at 628; 2 Burdick, The Law of Crimes, § 476 at 223 (1946); 65 Am.Jur.2d, Rape, § 39 at 782--783; 52 C.J., Rape, § 14 at 1010; 75 C.J.S. Rape § 6 at 467.

This common law principle appears to have its genesis in a statement in Sir Matthew Hale's Pleas of the Crown wherein it is stated,

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimoinal consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract. (1 Hale, Pleas of the Crown 629 (1847))

Rape consists of forcible sexual penetration by the sex organ of the male into the sex organ of a female without her free and conscious consent. State v. Sorge, 123 N.J.L. 532, 10 A.2d 175 (Sup.Ct.1940), aff'd 125 N.J.L. 445, 15 A.2d 776 (E. & A.1940); State v. Orlando, 119 N.J.L. 175, 194 A. 879 (Sup.Ct.1937).

The element of 'consent' or lack thereof has troubled jurists and writers alike, given the limitless factual circumstances surrounding the commission of this universally condemned offense. State v. Terry, 89 N.J.Super. 445, 215 A.2d 374 (App.Div.1965); State v. Harris, 70 N.J.Super. 9, 174 A.2d 645 (App.Div.1961); New Jersey Model Penal Code, § 2C:14--1 (Final Report 1971); New Jersey Model Penal Code, § 2C:14--1(8)(9), Commentary (Final Report 1971); 2 Schlosser, Criminal Laws of New Jersey (3 ed. 1970), §§ 88:1, 88:6 at 442, 444; 1 Wharton, Criminal Law and Procedure, §§ 308--312 at 639--651 (1957); Comment, 'Rape and Rape Laws: Sexism in Society and Law,' 61 Cal.L.Rev. 934 Et seq. (1973) (hereinafter 61 Cal.L.Rev.). See generally, Brownmiller, Against Our Will, 380 Et seq. (1975). Lord Hale (op.cit.) chose to resolve the issue of consent between husband and wife simply by resorting to principles of contract law. He reasoned that the marriage contract constituted an Irrevocable consent by both parties to engage in sexual communication as long as the marriage contract existed. It has been aptly observed that when Hale authored this proposition it was an 'accepted view of the law because at that time a valid marriage could not be dissolved except by death, and the only way in which a marriage could be avoided was by a private Act of Parliament.' Reg. v. Miller, 2 Q.B. 282, 2 All E.R. 529, 2 W.L.R. 138, 140 (1953).

With the advent of judicial intervention into the marriage relationship, it was recognized that the 'consent' of the wife upon entry into the marriage contract could and would be considered revoked by a judicial order of divorce or separation. Hence, prosecutions for rape of a wife have been allowed in such limited circumstances. 84 A.L.R.2d 1017, 1022; Reg. v. Clarke, 33 Crim.App. 216, 2 All E.R. 448 (1949); Baugh v. State, 402 S.W.2d 768 (Tex.Crim.App.1966); State v. Parsons, 285 S.W. 412 (Mo.Sup.Ct., 1926). Cf. Frazier v. State, 48 Tex.Cr.R. 142, 86 S.W. 754 (Ct. of Crim.App.1905).

The State urges that our rape statute does brand as criminal a forcible sexual attack by a husband upon his wife because the language of the statute does not specifically Exclude from its proscription a wife-victim.

Critics have argued that the creation of such an interdiction would increase the risk of fabricated accusations, unduly invade the sanctity of the marriage relationship, increase the wife's ability to gain an advantage over an estranged husband with respect to property settlements, become a weapon of vengeance for the spurned wife and lessen the likelihood of reconciliation. 61 Cal.L.Rev. 919, 926, n.34; Comment, 'Rape and Battery Between Husband and Wife,' 6 Stanf.L.Rev. 719 (1954) (hereinafter cited as 6 Stanf.L.Rev.). These are not totally persuasive arguments when one considers that the law already furnishes an arsenal of such weapons to a woman bent on revenge. Charges of assault and battery larceny, fraud and other offenses may just as readily be the subject of such false accusations between spouses. Also, reconciliation hardly seems an expected or likely consequence of a relationship that has deteriorated to the point of forcible sexual advances by a husband.

Moreover, it is hardly uncommon for our criminal justice system to deal with false and fabricated criminal charges. Indeed, our jurisprudence is designed to test the very truth or falsity of accusations in all criminal proceedings. We see no basis for the supposition that it will completely and utterly fail to operate in the circumstances here presented, notwithstanding Hale's naked assertion that 'It is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, the never so innocent.' 1 Hale, op.cit. at 634.

Rape is necessarily and essentially an act of male self-aggrandizement, while sexual communion mutually entered into connotes and communicates love, respect and a gift of physical pleasure. Rape subjugates and humiliates the woman, leaving her with little retaliatory capability save that provided by law--to charge her attacker so that a civilized society may lawfully exact a just penalty or punishment for the trespass committed.

Because of their uniquely personal and oftentimes violent nature, sex crimes, especially rape, are of great concern to our society. Whether young or old, the woman may suffer permanent emotional repercussions, and the psychological consequences for the victim are impossible to calculate. Even with today's so-called enlightened attitude of sexual behavior, the right of women to govern sexual access to their bodies is universally defended. Thus, the protection afforded to women by our law is basic to any society which deems itself civilized.

As heretofore noted, jurisdictions which have refused to allow such prosecutions have uniformly and summarily rationalized that a husband cannot be guilty of rape because the wife, upon entering into marriage, has irrevocably given her consent to sexual communication. They 'reason,' as did Hale, that the element of lack of consent has not been satisfied. Frazier v. State, supra; State v. Drope, 462 S.W.2d 677 (Mo.Sup.Ct.1971); 84 A.L.R.2d, supra. It would appear that this superficial reasoning has been perpetuated without serious challenge and without consideration of the fact that such...