Commonwealth of virginia marriages and divorces
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Weishaupt landed on top. He pinned Janet's arms down with his knees then used his hands to choke her as he demanded to know whether she had been to bed with anyone. She said no. She pleaded with him to let her get a drink of water. Weishaupt released her momentarily. When she finished getting the water, he put her back on the bed and started to kiss her and undo her blouse. She fought with him again and again they fell to the floor.
This time he got her pants down and in Janet's words, "proceeded to have intercourse. Throughout this ordeal, Janet continued to scream and resist. When the apartment owner arrived to open the door for the security guard, she and others in the hallway could hear Janet's screams. The security guard heard Janet say "leave [me] alone, you're hurting me, get off of me. She had red marks on her back and was sobbing hysterically. Weishaupt was standing nearby covered with perspiration. He was observed buckling up his pants. One of the women who came to Janet's assistance asked Weishaupt whether he had raped Janet.
He replied, "yes, I tried. Weishaupt admits that he and Janet were living separate and apart at the time of the attack. Nevertheless, he contends that he had an absolute right to do what he did. Hale, The History of the Pleas of the Crown at Weishaupt argues that Hale's rule is absolute and completely exonerates his conduct. Second, he argues that Hale's rule was adopted in Virginia in cases which used the word "unlawful" in defining rape. Third, he argues that to permit a husband to be charged with raping his wife would be disruptive to marriages.
In our opinion, all of Weishaupt's arguments are meritless. We will address the arguments seriatim. Weishaupt's first argument relies upon an unstated assumption. The unstated assumption is that Hale's statement sets forth the common law of England. That assumption is mistaken. Hale's statement was not law, common or otherwise. At best it was Hale's pronouncement of what he observed to be a custom in 17th century England. Yet, unlike other customs which form the bases of common law, it nowhere appears that Hale, in making his statement, set forth a general rule of conduct of such longstanding acceptability that "the memory of man runneth not to the contrary.
Blackstone, Commentaries on the Laws of England at Moreover, Hale cites no authority for his view nor was it subsequently adopted, in its entirety, by the English courts. According to Blackstone, "the judges in the several courts of justice" were to determine the existence and validity of customs or maxims that were claimed to be part of the common law. Blackstone went on to state that "judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law.
The Supreme Court of the United States has also stated that common law is a product of courts disposing of cases.
In Kansas v. Colorado, U. Clearly then, Hale's statement, standing alone, does not and cannot qualify as common law. Thus, Weishaupt's reliance upon it is misplaced and his assumption that it states a rule of law applicable in Virginia is wrong. Our analysis establishes that only a portion of Hale's statement was ever accepted in England.
Rex v. Lister, 1 Strange , 93 Eng. It is not a rape case and it does not directly address the issue of marital exemption from rape. It is nonetheless important because it concerns a husband's power over a woman from whom he was separated. The defendant and his wife were living separate and apart pursuant to a "deed of separation," which turned over some of the wife's property to her husband and retained an amount for her separate maintenance.
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The defendant, who wanted more money from his estranged wife, seized her and took her to a remote place where he kept her under guard. The woman's family "brought a habeas corpus. In State v. Smith, 85 N. The first recorded English opinion to discuss Hale's statement directly is R.
Clarence,  22 Q. However, that also was not a rape case and the court was not required to rule on the validity of the statement.
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The issue in Clarence was whether a husband could be convicted of unlawfully and maliciously inflicting grievous bodily harm upon his wife where he had intercourse with her while he knew, but she did not know, that he was suffering from gonorrhea, which disease subsequently infected the wife, and where the wife testified that had she known of her husband's condition she would not have submitted to the intercourse. At trial, the defendant was found guilty. On appeal, the conviction was quashed.
Thirteen justices voted on the case. Nine voted to quash the conviction. In resolving the case, one justice wrote he was not prepared to accept the proposition that it was impossible for a husband to rape his wife. He described Hale's statement as, "a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.
Another posed a question which implicitly acknowledged that a wife could revoke her consent to marital sex. He wrote as follows: "Until the consent given at marriage be revoked, how can it be said that the husband in exercising his marital right has assaulted his wife?
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Yet another flatly stated that he questioned Hale's authority:. The several views expressed by the justices make unmistakably clear that after Clarence, Hale's statement still had not been made part of English common law. It was not until that an English Court was finally required to decide whether a husband could be found guilty of raping his wife.
The case was R. Clarke,  2 A11 E. There, the husband and wife were living separate and apart. Prior to the alleged rape, the wife secured a court order which recited that she was no longer bound to cohabitate with her husband. While that order was in effect, the husband had intercourse with his wife by force, without her consent.
The Court recited Hale's statement, then ruled that, "As a general proposition it can be stated that a husband cannot be guilty of a rape on his wife. The Court thus adopted Hale's implied consent theory. However, on the facts of the case it held that because of the order of separation, the wife's consent to sexual intercourse had been revoked by "process of law.
Clarke was followed in R. Miller,  2 A11 E. The Court found that at the time of the attack no order of separation had been entered by a court nor had the parties executed a separation agreement between themselves.
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Based on those facts, the court said that there was no "evidence" which enabled it "to say that the wife's implied consent to marital intercourse [had] been revoked by an act of the parties or by an act of the courts. O'Brien,  3 A11 E. There, at the time of the alleged rape the couple had not been granted a final divorce. But a "decree nisi" had been granted. The court ruled that the entry of that decree revoked the "wife's implied consent to marital intercourse.
The husband had moved to quash the rape indictment; his motion was denied. It is apparent from the English cases that, contrary to Weishaupt's assumptions and representations, from earliest times, a wife who was separated from her husband was in a different position than a wife living with her husband. The separation served to cut off marital rights that her husband otherwise may have had. Thus, the true state of English common law was that marriage carried with it the implied consent to sexual intercourse; but that consent could be revoked.
The requirement for revocation was that there exist either a court order of separation or one limiting contact, or that there exist a separation agreement entered into by both husband and wife. The English courts refused to accept a unilateral revocation of consent to marital sex by the wife even if that revocation was manifested by the wife's moving out and filing for divorce. Nevertheless, contrary to the position advanced by Weishaupt, under English common law, there never existed an absolute irrevocable marital exemption that would protect a husband from a charge of rape in all circumstances.
The actual English common law rule, if applied directly to the facts of this case, would require us to reverse Weishaupt's conviction. But such a direct application is not possible. According to the code, English common law cannot be applied if it is "repugnant to the principles of the Bill of Rights and the Constitution.
Commonwealth, 96 Va. We stated that though the statute, aside from its express limitations, appears to adopt English common law "generally, and without a qualification," this is not in fact the case. The true rule is this:.
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Thus, by statute and case law, we are free, in essence, to adopt from English common law those principles that fit our way of life and to reject those which do not. We must decide, therefore, whether the English rule, which permits revocation of the implied consent to marital sex but which refuses to grant that power to a woman acting unilaterally, is repugnant to the nature and character of our political system, contrary to statute, or whether the circumstances existing in Virginia render it inapplicable.