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 rape.
    • 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 interlocutory appeal.
    • Daniel argued that it impossible to rape one’s own wife because that is part of the marriage contract.
  • The Appellate Court denied Daniel’s motion.
    • 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 now.
      • 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 legal rights.