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 (E. & A. 1916); State v. Faas , 39 N.J. Super. 306, 307 (Essex Cty. Ct., 1956) aff'd. sub nom. Application of Faas , 42 N.J. Super. 31 (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 matrimonial 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 (Sup. Ct. 1940) aff'd 125 N.J.L. 445 (E. & A. 1940); State v. Orlando , 119 N.J.L. 175 (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 (App. Div. 1965); State v. Harris , 70 N.J. Super. 9 (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. ...