STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ALBERT SMITH, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
Argued November 5, 1980—Decided February 10, 1981.
85 N.J. 193
William Welaj, Designated Counsel, argued the cause for respondent (Stanley C. Van Ness, Public Defender, attorney).
The opinion of the Court was delivered by
PASHMAN, J.
Since the enactment in New Jersey of the new Code of Criminal Justice,
I
The State alleges that on October 1, 1975, defendant Albert Smith broke into the apartment of his estranged wife, Alfreda Smith, and repeatedly beat and raped her. On that date the accused and victim were legally married. They had been married for seven years but had lived separately for approximately one year. The separation may have followed another violent incident involving defendant and his wife in September 1974. Although the record is not clear on this point, Alfreda Smith testified that she and the defendant appeared before a judge, who ordered the defendant to leave the marital home. Counsel have informed this Court that the existence of such an order cannot be verified because it would have been issued six years ago and sound recordings of oral Municipal Court orders are kept for only three years. Therefore, we must assume that no
At the time of the alleged incident on October 1, 1975, defendant and his wife lived in different cities. The State accuses defendant of arriving at his wife‘s apartment at about 2:30 a. m., breaking through two doors to get inside, and once there threatening, choking and striking her. According to the State, over a period of a few hours he repeatedly beat her, forced her to have sexual intercourse and committed various other atrocities against her person. As a result of these alleged attacks, Alfreda Smith required medical care at a hospital.
After hearing testimony on December 11, 1975, and January 5, 1976, the Essex County Grand Jury returned an indictment charging defendant with four separate counts—atrocious assault and battery, private lewdness, impairing the morals of a minor, and rape. Defendant moved to dismiss the rape charge on the ground that he was legally married to the victim at the time of the incident. The trial judge reluctantly granted the motion. He believed that the common law included a marital exemption from the crime of rape, which was implicitly incorporated into this State‘s statutory definition of rape from early Revolutionary times to the present. Although the trial judge expressed unequivocal disapproval of such an anachronistic rule of law, he considered it the prerogative of the Legislature to change it. See 148 N.J.Super. 219 (Law Div.1977).
The State appealed the dismissal of the rape count to the Appellate Division,1 R. 2:3-1; 2:5-6(a), which affirmed the judgment of the trial court, stating:
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. [169 N.J.Super. at 101]
We granted the State‘s petition for certification, 82 N.J. 292 (1980), to consider the reach of our former rape statute.
II
The rape statute under which defendant was charged provided in part:
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 . . . . [
N.J.S.A. 2A:138-1 (repealed) ]
The State argues that the statute covered the conduct of a husband against his wife because it applied to “any person.”
This argument, although superficially appealing, does not resolve the issue before the Court. The marital exemption, if it existed, may have acted as a defense by negating some element of the crime. Thus the statute may well have applied to “any person,” but a husband‘s forcible sexual intercourse with his wife was not rape because it did not include all three elements of the crime—carnal knowledge, force, and lack of consent, see State v. Heyer, 89 N.J.L. 187 (E & A 1916). Similarly, the reference to “any person” could be construed not to include infants; insane persons, who lack the necessary state of mind to form an intent to rape; or women, at least as the principal actor. Thus, our inquiry must go beyond the “plain meaning” of the statute, the language of which alone does not reveal whether a husband was exempt from the charge of raping his wife.
The first State Constitution of New Jersey provided for a limited incorporation of English common and statutory law in existence at that time by providing:
That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter . . . . [
N.J.Const. (1776), Art. XXII ]
Thus, English common law as of 1776 became part of this State‘s law after the Revolution subject to change by the Legislature or except where in conflict with the State Constitution.2 The 1844 Constitution likewise kept in force laws then in effect.
All law, statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this Constitution or any Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise. [
N.J.Const. (1947), Art. XI, § 1, par. 3 ]
A
Sir Matthew Hale, a seventeenth century English jurist, wrote a treatise on English law which is invariably cited as authority for the rule. Hale discussed the crime of rape and possible defenses, stating:
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 her husband, which she cannot retract. [1 Hale, History of the Pleas of the Crown *629]
Hale cited no authority for this proposition and we have found none in earlier writers. Thus the marital exemption rule expressly adopted by many of our sister states has its source in a bare, extra-judicial declaration made some 300 years ago. Such a declaration cannot itself be considered a definitive and binding statement of the common law, although legal commentators have often restated the rule since the time of Hale without evaluating its merits, see, e. g., 3 Wharton‘s Criminal Law § 286 (14th ed. 1980); 2 W. Burdick, The Law of Crimes § 476 at 223 (1946); 2 F. Schlosser, Criminal Laws of New Jersey § 88:8 (3d ed. 1970); Annot., 84 A.L.R.2d 1017, 1019-22 (1962); 65 Am.Jur. 2d, Rape § 39 at 782-83 (1972); 75 C.J.S., Rape § 6 at 467 (1952).
The common law which was adopted as the law of this State in 1776 consisted of the underlying reasons and policies that justified particular rules of law as well as the legal rules themselves. “It is the principles of the common law which [this State has] adopted generally, and not necessarily the decisions of the English courts in exposition of the common law.” Heise v. Earle, 134 N.J.Eq. 393, 402 (E & A 1944). English judicial
We need not decide, however, the broad question of whether a marital exemption existed under English common law. The narrower question here is whether such a marital exemption, even if it existed, would have applied inflexibly for as long as a marriage continued to exist in the legal sense. We think not.
We believe that Hale‘s statements concerning the common law of spousal rape derived from the nature of marriage at a particular time in history. Hale stated the rule in terms of an implied matrimonial consent to intercourse which the wife could not retract. This reasoning may have been persuasive during Hale‘s time, when marriages were effectively permanent, ending only by death or an act of Parliament. See H. Clark, Law of Domestic Relations 280-82 (1968). Since the matrimonial vow itself was not retractable, Hale may have believed that neither was the implied consent to conjugal rights. Consequently, he stated the rule in absolute terms, as if it were applicable without exception to all marriage relationships. In the years since Hale‘s formulation of the rule, attitudes towards the permanency of marriage have changed and divorce has become far easier to obtain. The rule, formulated under vastly different conditions, need not prevail when those conditions have changed.
Even in pre-Revolutionary England, matrimonial law permitted a wife to live apart from her husband. Judicial separation, sometimes called divorce a mensa et thoro, was available, H. Clark, supra, at 281, and courts would also enforce mutual separation agreements. In Rex v. Lister, 1 Strange 477, 93 Eng.Rep. 645 (1721), the court released a wife from confinement by her husband after he had forcibly seized her and carried her away during a time when they were living separately
To summarize our view of the marital exemption under English common law, we think that the existence of the rule is
B
Having determined that the common law did not include an absolute marital exemption from prosecution for rape under all conditions, we next consider what rule of exemption, if any, did exist as the law in this State at the time of these alleged criminal acts.
The inquiry must begin with enactment of the State‘s first rape statute in 1796. That statute provided in part:
That any person who shall have carnal knowledge of a woman, forcibly and against her will, . . . shall, on conviction, be adjudged guilty of a high misdemeanor . . . . [L. 1796, An Act for the Punishment of Crimes, § 8]
This statutory language is almost identical to
We have previously concluded that the common law spousal exemption was not absolute or mechanically applicable to all legal marriages. We have also concluded that the enactment of a rape statute in this State did not clarify the existence or extent of such a rule. Nevertheless, we will assume for the purpose of our inquiry that some form of a marital exemption did exist in eighteenth century New Jersey and next consider whether that exemption was the rule in 1975, when defendant allegedly raped his wife.
A common law rule of marital exemption was probably based on three major justifications, which might have constituted the common law principles adopted in this State.4 The first of these, the notion that a woman was the property of her husband or father, see S. Brownmiller, Against Our Will 18-28 (1975), was never valid in this country. Rape laws may originally have protected a woman‘s chastity and therefore her value to her father or husband. In this State, however, rape statutes have always aimed to protect the safety and personal liberty of women. Thus, the common law “principle” that a wife is her husband‘s chattel does not support the view that our rape statute included a marital exemption.
Second, the common law once included the concept that a husband and wife were one person, that after marriage a man and woman no longer retained separate legal existence. As a result of this concept, some have argued that a husband could not be convicted of, in effect, raping himself. This argument does not take into account how, in spite of marital unity, a
Furthermore, even if the argument had validity at one time, the “principle” of marital unity was discarded in this State long before the commission of defendant‘s alleged crime. See
The third and most prevalent justification for the exemption rule is the one utilized by Hale himself—that upon entering the marriage contract a wife consents to sexual intercourse with her husband. This irrevocable consent negates the third essential element of the crime of rape, lack of consent, see State v. Heyer, supra. We cannot say with certainty whether such a rationale was justified even in the seventeenth century. See supra at 201-202.
More importantly, this implied consent rationale, besides being offensive to our valued ideals of personal liberty, is not sound where the marriage itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage “contract,” may she not also revoke a “term” of that contract, namely, consent to intercourse? Just as a husband has no right to imprison his wife because of her
Changes in divorce laws have significantly affected judicial and legislative construction of marital exemption rules. Some jurisdictions have recognized that consent to intercourse does not automatically continue until a marriage is officially at an end. They have refused to exempt husbands from the charge of rape where a judicial decree of separation has been entered, where a spouse has filed for divorce or separate maintenance, or where the spouses are simply living apart. 3 Wharton‘s Criminal Law § 286 at 26-27 (14th ed. 1980); Note, The Marital Rape Exemption, 52 N.Y.U.L.Rev. 306, 318-19 (1977). See also Regina v. Miller, [1954] 2 All E. R. 529; Rex v. Clarke, [1949] 2 All E.R. 448.
Since the common law exemption supposedly operated by negating an essential element of the crime—lack of consent—it could not be applied where marital consent to sexual intercourse could be legally revoked. By 1975 our matrimonial laws recognized the right of a wife to withdraw consent prior to the dissolution of a marriage and even prior to a formal judicial order of separation.
This conclusion is consistent with those cases or statutes which have refused to apply the exemption rule after a judicial decree of separation has been issued. Such cases have reasoned that a legal process which originally created the marital state has stepped in to terminate it. Rex v. Clarke, supra. But the wife could not rely on her unilateral decision outside the legal process to mark the end of the marriage, for unless she could allege and prove proper grounds, a court would probably decline to terminate the marriage. Regina v. Miller, supra. The legal setting in this State is different. Since the advent of the no-fault ground for divorce, see
Our no-fault divorce law has existed since 1971, several years before the parties here separated and before the alleged acts of defendant. Defendant cannot claim that in 1975 his wife consented to have sexual intercourse with him although they were living separately. Whether or not any other husband could have based a defense on such implied consent—a proposition that we doubt seriously but do not decide—this husband could not.
With none of the three major common law justifications viable under our laws at the time of defendant‘s conduct, it would be irrational to believe that a common law marital exemption for rape endured in this State while other laws had changed so dramatically. The “principles of the common law” incorporated into our laws by our successive Constitutions, see supra at 199, and supposedly justifying a marital exemption had been abrogated by subsequent legislative and judicial actions. With their demise, no justification remained at this late date for believing that a rigid marital exemption rule based on those principles would be retained. Therefore, we hold that this State did not have a marital exemption rule for rape in 1975 that would have applied to this defendant and prevented his indictment and conviction on the charge of raping his wife.
In the criminal context, the Due Process Clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of his alleged crime that his conduct might be proscribed by a particular statute. Bouie v. Columbia, 378 U.S. 347, 351 (1964); United States v. Harriss, 347 U.S. 612, 617 (1954). Defendant contends, and the Appellate Division agreed, 169 N.J.Super. at 101, that any change in this State‘s rule of marital exemption for rape could not be applied retroactively to him consistently with due process.
This due process argument assumes that at the time of defendant‘s acts the law of this State would have exempted him from prosecution for rape. We have held, however, that no rule of law would have exempted this defendant from the charge of raping his estranged wife. Our holding does not deprive defendant “of any defense available according to law at the time when the act was committed,” Beazell v. Ohio, 269 U.S. 167, 169 (1925). At least under the circumstances of this case, the defense was not available when defendant committed the acts.
We have not changed a common law rule clearly in existence at the time of defendant‘s acts. Cf. State v. Young, 77 N.J. 245 (1978) (common law year-and-a-day rule of criminal liability for murder); State v. Koonce, 89 N.J.Super. 169 (App.Div.1965) (common law right to resist illegal arrest). Instead, our decision today is a first judicial application of a rule. In this sense our decision is akin to cases where a criminal offense depends on changes in a different body of law. E. g., People v. Morton, 308 N.Y. 96, 123 N.E.2d 790 (1954) (husband could be convicted of stealing money from his wife because Married Woman‘s Acts allowing wives to own property separately from their husbands had abrogated exemption under common law larceny of husband taking wife‘s property); Stewart v. Commonwealth, 219 Va. 887, 252 S.E.2d 329 (1979).
The Supreme Court‘s decision in Bouie v. Columbia, supra, is distinguishable on another ground. In Bouie, the Court held that “an unforeseeable judicial enlargement of a criminal statute, applied retroactively,” violates due process. 378 U.S. at 353. The judicial construction in that case had “unexpectedly broaden[ed] a statute which on its face had been definite and precise,” id., and had not previously covered defendants’ conduct. The rape statute under consideration in this case was also facially clear but, unlike the statute in Bouie, seemed to cover defendant‘s acts against his wife. There was no surprise or absence of fair warning to defendant because a criminal
Finally, in a more general sense, defendant had ample notice and fair warning that the people of this State would no longer tolerate a husband‘s violent sexual assault of his wife. The personal liberty of women and the recognition of them as independent citizens under the law had developed beyond question through legislative and judicial actions over more than a century. The right of women to make their own choices regarding reproduction and sexual conduct was also apparent under the abortion and contraception cases. Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973); Ponter v. Ponter, 135 N.J.Super. 50 (Ch.Div.1975). No person in this State in 1975 could justifiably claim that a man had a legal right to impose his sexual will forcefully and violently on a woman, even if it was his wife, over her unmistakable objection.
We hold that defendant had fair warning that his conduct might lead to conviction for rape, and that his conviction under
Conclusion
The enactment of the new Criminal Code has made it unnecessary for this Court to discuss at length all the inequities of a medieval rule that denies some women protection against sexual attack and treats them as sexual property of their husbands. Under
The judgment of the Appellate Division is reversed and the rape count of the indictment against defendant is reinstated.
SULLIVAN, J. (concurring in result).
Whatever may have been the common law rule in seventeenth century England in the time of Sir Matthew Hale, it never was the law of this State that there was a marital exemption from the law of rape and that a husband could not be guilty of the rape of his wife.
Rape is and has always been a statutory crime in the State of New Jersey. Over the years, the statutory language remained virtually unchanged. At the time of the offense in question it provided: “Any person who has carnal knowledge of a woman forcibly against her will . . . is guilty of a high misdemeanor.”
The statute has never contained any exception or exemption. I would construe it to mean exactly what it says and would hold that a husband who had carnal knowledge of his wife forcibly and against her will was guilty of rape.
I, therefore, concur in the result reached by the majority but for the reasons heretofore stated.
SULLIVAN, J., concurring in the result.
For reversal and reinstatement—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK—7.
For affirmance—None.
Notes
Many years later, another English court reached a similar result in Regina v. Jackson, 1 Q.B. 671 (1891), although other case authority suggested that a husband could confine his wife as long as they were married, In re Cochrane, 8 Dowl. 630 (1840) (cited in Regina v. Jackson, supra); Atwood v. Atwood, 24 Eng.Rep. 220 (1718). These cases indicate that the common law concern ing the individual liberty of married women, or their right to control their own lives even while still legally married, was not as settled as Hale‘s rule might suggest.
In fact, English courts after the American Revolution cast some doubt on the absolute validity of Hale‘s rule. In Regina v. Clarence, 22 Q.B.D. 23 (1888), one dissenting justice wrote:
The authority of Hale, C. J., on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime. [Id. at 57 (Field, J.)]
Another justice in the majority seemed to agree: “unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.” Id. at 33 (Wills, J.). But the marital exemption rule was not squarely in issue until Rex v. Clarke, [1949] 2 All E.R. 448 and Regina v. Miller, [1954] 2 All E.R. 529. In those cases the courts adopted Hale‘s rule, but not for all situations when the parties were still legally married. They would not have applied the marital exemption where the parties had separated pursuant to a judicial order or written agreement. These two cases indicate that Hale‘s rule (even if it existed) was not applicable to all marriage situations even though the defendant could claim that his marriage to the victim was not officially at an end.