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A long time ago, it appears, Donald Trump and one of his prior wives got divorced.  In a deposition of his ex-wife, Ivanna, the word “rape” somehow came up.

Fast forward to now.  Trump’s lawyer, somebody named Michael Cohen, yesterday denied any suggestion that Trump had done anything wrong. Fine.  I’ll take him at his word.

Besides, Mr. Cohen explained,  “[y]ou cannot rape your spouse. And there’s very clear case law.”

Whoa! Wrong.

In New Jersey, statutory law is clear that “[n]o actor shall be presumed to be incapable of committing a [sex offense] because of age or impotency or marriage to the victim.”  N.J.S.A. 2C:14-5 (b).  As for case law, Cohen is right that it is “very clear.”  Our State Supreme Court has long found the idea that a husband cannot rape his wife to be “offensive to our valued ideals of personal liberty.” State v. Smith, 85 N.J. 193,205(1981).  Justice Pashman explained almost thirty-five years ago that the

most prevalent justification for the [marital] exemption rule is … that upon entering the marriage contract a wife consents to sexual intercourse with her husband. This irrevocable consent negates the third essential element of the crime of rape, lack of consent… . We cannot say with certainty whether such a rationale was justified even in the seventeenth century.

More importantly, this implied consent rationale, besides being offensive to our valued ideals of personal liberty, is not sound where the marriage itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage “contract,” may she not also revoke a “term” of that contract, namely, consent to intercourse? Just as a husband has no right to imprison his wife because of her marriage vow to him, he has no right to force sexual relations upon her against her will. If her repeated refusals are a “breach” of the marriage “contract,” his remedy is in a matrimonial court, not in violent or forceful self-help.

State v. Smith, 85 N.J. 193,205-06 (1981) (citations omitted).

Thus, the Court concluded that “[n]o person in this State in 1975 could justifiably claim that a man had a legal right to impose his sexual will forcefully and violently on a woman, even if it was his wife, over her unmistakable objection.”  Id. at 210.

In a brief concurrence, Justice Sullivan said simply that: “Whatever may have been the common law rule in seventeenth century England in the time of Sir Matthew Hale, it never was the law of this State that there was a marital exemption from the law of rape and that a husband could not be guilty of the rape of his wife.”  Id. at 211.

Likewise, the New York Court of Appeals plainly struck down the so-called “marital exemption” to rape in People v. Liberta, 64 N.Y. 2d 152, 474 N.E. 2d 567 (N.Y. 1984.)

UPDATE: It seems that Mr. Cohen might have hit Lexis or Westlaw and now sees the error of his ways – which, of course, he blames on the media. Although his original statement was flat-out wrong, he now calls it “inarticulate.” Wrong again.  It was not “inarticulate.”  It was just plain incorrect.

“No means, no” in the marital relationship, too.

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