Wilentz, Sullivan, Pashman, Clifford, Schreiber, Handler, Pollock
The opinion of the Court was delivered by PASHMAN, J.
Since the enactment in New Jersey of the new Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, L. 1978, c. 95, no person can claim that a sexual assault committed after the effective date of the Code, September 1, 1979, is exempt from prosecution because the accused and victim were husband and wife. The Criminal Code expressly excludes marriage to the victim as a defense against prosecution of sexual crimes. N.J.S.A. 2C:14-5(b). The criminal acts alleged in this case, however, occurred before the effective date of the Code. The issue before the Court is whether a defendant can be charged with and convicted of raping his wife under the former statute, N.J.S.A. 2A:138-1. We hold that, at least under the circumstances of this case, he can.
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
judicial orders recognizing separation or restraining contact existed at the time of the alleged criminal acts. It also appears from the record that the parties had not entered into a formal agreement setting down the terms of their separation, nor had either filed a complaint for divorce.
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 the 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,*fn1 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]
The appellate court did not agree with the trial judge that it was beyond a trial court's authority to change such a rule of law Id. at 100. Nevertheless, it declined to make a change here because the new rule could not be applied retroactively to this defendant and the Legislature had already changed the law for future acts of marital rape by enactment of N.J.S.A. 2C:14-5(b) as part of the Criminal Code.
We granted the State's petition for certification, 82 N.J. 292 (1980), to consider the reach of our former rape statute.
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 issues 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.
Defendant, by contrast, contends that a marital exemption had always been part of this State's criminal law of rape until enactment of the new Criminal Code. Yet he is unable to cite any statutory or judicial authority from this State to support his position. In fact, prior to the decisions of the courts below, the only case in New Jersey that considered whether a marital exemption from rape existed under N.J.S.A. 2A:138-1 expressly declined to decide the issue. In re Faas, 42 N.J. Super. 31, 37 (App.Div.1956), cert. denied, 353 U.S. 940, 77 S. Ct. 820, 1 L. Ed. 2d 762 (1957). Nevertheless, defendant contends that the exemption was a rule of English common law which was incorporated into New Jersey's first rape statute in 1796 and remained unchanged throughout the time that N.J.S.A. 2A:138-1 was in effect.
 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.*fn2 The 1844 Constitution likewise kept in force laws then in effect. N.J. Const. (1844), Art. X, § 1. Finally, our current State Constitution states:
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 ...