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..·S) Equality Theory, Marital Rape, and the Promise ofthe Fourteenth Amendment ROBIN WEST DURING THE 1980s a handful of state judges either held or opined in dicta what must be uncontrovertible 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.... [T]hat a number of feminist commentators2 and a few state court appellatejudges3 felt it necessary to argue to a still skeptical and often hostile listening audience that marital rape exemptions constitute a denial of the Fourteenth Amendment's guarantee ... evidences the degree to which women's injuries still are trivialized and rendered invisible by a pervasively misogynist legal, political, and social culture. That the arguments of these advocates met with such limited success in abolishing the exemption reveals how short a distance women have come, and how far we have yet to travel, toward full equality and the necessary result of equality: an assurance that the state will provide a modicum of safety in our private lives against sexual assault. States [made] limited progress in reforming marital rape law during the 1980s. A few abolished the exemption entirely4-but only a few. The majority continue to permit rape or sexual assault within marriage by according it a lower level of criminality than extramarital rape of sexual assault, by criminalizing only certain kinds of marital rape, or by criminalizing only first-degree rapes. Some states, ironically in the name of reform, may have worsened the problem of marital rape by extending the exemption to include women who rape their husbands in order to make the exemptions appear "gender neutral."5 This extension provides a false neutrality to an institution that almost invariably endangers only women's lives.... Furthermore, movements in other states to extend the marital rape exemption offset [gains]. For example, some states have extended the marital rape exemption to include cohabitants and formerlY married persons. 42 Fla. L. Re\'. .f5 (1990). Reprinted with the permission of the Florida Law Review. Cop\Tight 1990. Copyrighted Material 511 512 I ROBIN WEST This pattern of one-step-forward, two-steps-back progress on the criminalization of marital rape illustrates the general pattern of thinking in the 1980s regarding marital rape. While virtually every progressive commentator,judge, or legislator (feminist and otherwise) who seriously has considered the issue readily has concluded that these laws violate equal protection, and while explicit vocal support from conservatives for the exemption almost entirely has disappeared from scholarly literature, no major upheaval of the law reflects or foreshadows such progressive unanimity.... Those who understand the exemption view it as an antiquated holdover from an earlier and discarded view ofwomen. But the educated public, and even the legal community, lacks general awareness that these laws not only inflict extensive damage on innumerable women's lives, but also constitute a constitutional outrage. [In this essay], 1want to use the marital rape laws and the movements directed toward their reform to raise two related issues about equal protection ideology and equality theory. The first issue is theoretical; the second is strategic. The theoretical issue is the following: Why is it that this overwhelmingly obvious constitutional flaw in our criminal law has not, in the last ten years, attracted more attention , generated more outrage, and simply collapsed of its own unconstitutional weight? Why, after several decades ofcase law and academic commentary on the meaning , original intent, and political vision embodied in the equal protection guarantee of the Fourteenth Amendment, do we still have marital rape exemptions, the express purpose of which is to deprive married women of the state's protection against rape? My argument will be that 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. [It] illustrates the inadequacies and ambiguities in the equality theory within which equal protection arguments must be framed. In other words, the endurance of marital rape exemptions partly is a function of the inadequacy of the dominant or mainstream political theory of equality, which informs dominant legal understandings of the constitutional mandate of equal protection. This much of the argument...

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