On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Pashman, J. Sullivan, J. (concurring in result).
We have held today in a companion case, State v. Smith, 85 N.J. 193 (1981), that a husband could be convicted of raping his own wife under our former rape statute, N.J.S.A. 2A:138-1. In Smith, we considered the common law marital exemption from rape, which was never expressly adopted in this State, and determined that such an exemption would not have applied to defendant's acts against his estranged wife. The presence of additional circumstances here offers even more compelling reasons than those in Smith for holding that defendant could be convicted of raping his wife.
Daniel and Rosita Morrison were married in 1966. After a period of marital problems and violence, Rosita Morrison moved out of their home in May 1976, apparently taking along their seven-year-old daughter. Husband and wife continued to see each other after the separation, but the hostilities seemed to intensify. Mrs. Morrison filed a complaint for divorce on the ground of extreme cruelty on August 27, 1976 in the Superior Court, Chancery Division. Two days later, the court issued a temporary restraining order against defendant, restraining him from "harassing, threatening or harming" Mrs. Morrison or "contacting [her] either at her place of residence or place of employment." On October 26, 1976, defendant and his wife executed a separation agreement. The agreement included a non-molestation clause which stated:
Each party shall be free from interference, authority and control, direct or indirect, by the other, as fully as if he or she were single and unmarried. Neither shall impose on the other or demand on the other a lifestyle or morality that is contrary to their preference. Neither shall molest the other or compel or endeavor to compel the other to cohabit or dwell with him or her.
According to defendant's own testimony at his criminal trial, he did not comply with the terms of either the temporary restraining order or the separation agreement. On several occasions in November 1976 he lingered about the premises of his wife's new residence and attempted to discover whether she was seeing another man. These watches sometimes lasted all night and on two occasions culminated in vandalism of her residence or a car that defendant suspected belonged to Mrs. Morrison's "boyfriend." At one point defendant taped a photograph of a gravesite to his wife's front door, presumably signifying his belief that their marriage would end only in death.
On November 26, 1976, as Mrs. Morrison was boarding a commuter train to return home from work, defendant entered the train with her and sat next to her. During the ensuing conversation, in which he demanded that she accompany him to a local mental health institution, he showed her a handgun in his possession. Mrs. Morrison agreed to meet him at the institution for a counseling appointment but did not agree to go there with him.
After getting off the train at her local stop, Mrs. Morrison walked toward her car in the train station's parking lot. Before she could reach the car, defendant overtook her and demanded again that she accompany him to the mental health institution. When she refused, defendant picked her up and carried her to the car. After a struggle, during which he kicked in a window of the car, defendant managed to get in the driver's seat and hold his wife forcibly between the front seats. He then drove out of the parking lot steering with his knees while he continued to hold her.
Riding in this manner with her head held close to the floor of the car, Mrs. Morrison was constantly "kicking, screaming, and
crying," and occasionally trying to bite her way loose. Defendant, in turn, was constantly hitting her in the head with his fist to subdue her. He drove to his own house and carried her up to a bedroom. There he ripped off part of her clothing, after which she agreed to remove the rest. He then had sexual intercourse with her while she continued to resist.
After this first episode, defendant called the mental health institution and arranged for an appointment, stating that he had kidnapped his wife and had just raped her. Following this call, defendant again had forcible intercourse with Mrs. Morrison. They then traveled together to the institution and met with two counselors there. Although Mrs. Morrison asked the counselors to help her escape ...