Hastings Journal on Gender and the Law


Marital rape is frequently treated within the frameworks of domestic violence and non-marital rape. However, social attitudes and legislation regarding domestic violence are often caught in a tension between family privacy and victim/survivor protection, whereas non-marital rape is often lodged between problems of consent and evidentiary proof. Thus, subsuming marital rape under either paradigm, to assess marital rape as we would treat domestic violence or non-marital rape, fails to account for the unique circumstances and consequences of rape that is perpetrated by one's own spouse. This Note addresses those unique circumstances and takes a look at current marital rape legislation and norms in the Unites States and abroad. Specifically, this Note argues that in order to adequately address the fundamental marital rape issues, social, judicial, legislative, and enforcement networks must draw upon a hybrid framework that encompasses concerns relevant to both domestic violence and non-marital rape.