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Is it really true that up until relatively recently in the US a man could not rape his wife, because apparently at one point in time a married couple was considered one legal entity and a person cannot rape himself?

I just heard this once in passing in a YouTube video and was wondering if it was fact or fiction?

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    Related law.stackexchange.com/questions/24550/… and law.stackexchange.com/questions/22640/…
    – ohwilleke
    Mar 15 at 20:00
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    On a certain level a man could not rape his wife because rape was statutorily defined as a crime committed by a man against "a woman not his wife." This was the case in New York, at least, in the early 20th century.
    – phoog
    Mar 16 at 3:45
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    This question seems to have struck a nerve. Posters will do well to remind themselves at the OP's incredulity at the situation and that the OP did not intend to make any insinuations or allusions that the situation described is in any way morally acceptable.
    – Neil Meyer
    Mar 16 at 5:18

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It is true that marital rape was not recognized as a legal wrong in the United States until relatively recently (the 1970s–1990s).

However, the reasoning was not that spouses were the same legal person. Rather, the reasoning was the legal fiction that by marriage, a wife provided prospective and irrevocable consent.

Source: Marital Rape in the United States (and the sources cited therein).

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  • It should be pointed out that the origin of this standard was from a point in time prior to the Revolutionary war and it wasn't fixed in Briton until 1991. It likely existed as a legal standard in most nations that were at one point within the British Empire.
    – hszmv
    Mar 15 at 14:22
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    In Germany, having sex was part of marriage. But if either partner refused, that didn't give the other partner permission to force them, it gave them permission to ask for a divorce.
    – gnasher729
    Mar 15 at 14:35
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    The more general Wikipedia article on marital rape suggests that rape was historically an offence against a man whose wife or daughter you damaged/reduced in value, not against a woman. The woman was basically the husband's property. So if you were husband and raped your wife you weren't damaging anyone else's property, and no crime was committed.
    – Stuart F
    Mar 15 at 14:37
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    An important corollary of the non-existence of marital rape as a crime under prior law was that self-defense against marital rape was not a legal justification for the use of force against a spouse by a spouse who was being raped.
    – ohwilleke
    Mar 15 at 19:11
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    @StuartF Under the legal coverture doctrine this was the case in many places, but the coverture doctrine was pretty much dead 50-100 years before marital rape was criminalized, depending on the particular jurisdiction in question.
    – ohwilleke
    Mar 15 at 19:17
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It's true that a husband could not be convicted of rape in relation to his wife, but women have always been protected from serious violence and physical injury by the law, so there was some limit to which force could be used - this might not be obvious today in a discussion about whether a wife could be "raped" by her husband or not.

It's also worth noting that this rule existed for married couples who were already expected to be together until death, not men and women generally.

It's better perceived as a policy of non-interference by the law into the interior content of marital relationships.

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