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Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment

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During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute that criminalizes sexual assault, and punishes it severely, unless the victim and assailant are married? What could be more obvious than the plain fact, repeatedly documented, that these state laws are derived from a sorry history of discriminatory, misogynist, and hateful denials of a married woman's legal right to equal dignity and respect? Where could one possibly find a sharper example of a state law that explicitly insulates and protects a separate political system of subordination and violence against a group of citizens, and thereby denies those citizens protection of the laws given others? So why has not the Supreme Court held as much?The endurance of marital rape exemptions, despite their apparent unconstitutionality, partly results from the dominant understanding of the meaning of equality and constitutionally guaranteed equal protection. This paper proposes not so much a novel approach to marital rape exemption or to the fourteenth amendment, but rather a new direction of progressive and feminist-informed constitutional arguments. I will urge that we should direct our arguments away from a hypothetical judicial audience and toward a congressional audience. If the dominant understandings of equal protection truly are inadequate, and if judicially developed law has determined the content of those inadequate understandings, then "equal protection" might take on a very different and more helpful meaning if developed in a congressional, rather than a judicial, context. That very different meaning might highlight, rather than obfuscate, the unconstitutionality of the marital rape exemptions. Congress might respond more aggressively than the Court to the unconstitutionality of marital rape exemptions, not only because of the different political compositions of the Court and Congress, but also because equal protection as a political principle guiding Congress might carry a broader meaning than does equal protection as a.legal principle binding the Court.Part II of this essay discusses three contrasting understandings of the meaning of equal protection: the Supreme Court's dominant rationality approach; Professor MacKinnon's proposed dissident "anti-subordination" approach; and what I label the '"pure protection" understanding, which may be closest to the original meaning of the clause. Part III of this essay will then re-examine the constitutionality of marital rape exemptions in light of these competing views of the meaning of equal protection. The essay will posit that even if we accept the traditional, "rationality" model of equal protection, marital rape exemptions are unconstitutional. Part IV of this essay demonstrates that the dominant but inadequate rationality view of equality is largely a product of the adjudicative context in which that theory arose. Part V of this essay urges feminists, over the next decade, not only to continue to press the Court to rule against these laws on the basis of their irrationality, but also to urge Congress to respond to the mandate of section five of the fourteenth amendment by undertaking consideration of a "Married Women's Privacy Act." The purpose of the Act would be to guarantee all women the full protection of the states' laws against criminal assault.
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... Forms of sexual violence and the policies that protect against sexualized violence are not discussed at length in this chapter (for discussion, see Bonnar-Kidd, 2010;Campbell, 2008;Campbell & Wasco, 2005;Spindelman, 2004; see Volume 1, Chapter 12, this handbook). In addition, policies that regulate and protect against domestic violence (Sack, 2004;Suk, 2006), marital rape (Frieze, 1983;West, 1990), or sexual aggression (Lichty, Campbell, & Schuiteman, 2008;Spindelman, 2004;Wasco et al., 2004) are not discussed. This chapter does discuss policies that regulate sexuality under conditions in which consensual sex is implied. ...
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