Hastings Law Journal


Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she gives her ongoing consent to sexual intercourse. This Article argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, as this Article argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not married. The legal system often assumes that ongoing consent also exists between non-married intimates. This Article argues against the ideology of ongoing consent in both settings and proposes a new, single rule: evidence of a past or continuing sexual relationship between the complainant and the defendant is not itself a defense to a criminal sexual offense and, by itself, does not prove consent to the sexual act.

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