Warren v. State
255 Ga. 151, 336 S.E.2d 221 (1985)
Daniel forced his wife to have
sex with him. She filed a complaint and he was arrested and charged with
At the time, the two were
living together in a valid marriage.
At Trial, Daniel filed a
demurrer and a motion to dismiss. The motion was denied. He filed an
Daniel argued that it
impossible to rape one's own wife because that is part of the marriage
The Appellate Court denied
The Appellate Court noted
that there was a historical marital exclusion (aka spousal privilege). However, the fundamental reasoning behind
that exclusion is not good law. Three historical justifications:
"A husband cannot be
guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife has given herself up in
this kind unto her husband which she cannot retreat."
Basically she already gave
him a permanent 'yes' when she married him. She can't change her mind
The wife is the husband's
property and men are allowed to use their property as they see fit.
Married women do not have
legal existence under the law and are considered 'one being' with the
husband. A person cannot be found guilty of raping himself.
However, the Court found
that in the modern age, the Constitution guarantees every citizen (wives
included) protection from being deprived of life, liberty or property
except by due process.
That includes a
constitutional right to personal security and personal liberty.
The Court also looked to
statutory law and found that the rape Statute did not explicitly contain
a marital exception. It had been based solely on common-law.
This case was one of a series
of cases that evolved the law of marriage. Historically, the law
considered the married spouses to be one legal entity, but the modern view
is that it is a partnership between two individuals who have separate