In defending presidential candidate Donald Trump against a decades-old allegation of rape from a deposition, campaign surrogate Michael Cohen made an outrageous claim.
In a tirade against a reporter working on a story about Trump's divorce case from then-wife, Ivana, Cohen asserted: "You cannot rape your spouse. And there's very clear case law."
Let me establish why he wasn't only "inarticulate" -- as he wrote in an apology to the Daily Beast reporter who worked on the story -- but also just plain wrong.
In 1984, New York's penal code on rape granted a "marital exemption" to husbands who sexually assaulted their wives. The statute specifically defined a rape victim as "any female person who is not married to the actor."
The legal definition was based on early English common law, which held that wives were sexually subservient to their husbands. A husband "cannot be guilty of a rape committed by himself upon his lawful wife," Sir Matthew Hale, the influential British jurist, wrote in a 1736. "y their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband," Hale added, and this consent was something "she cannot retract."
English common law was the basis for many of the laws enacted by the states. And so almost all of them, including New York, enacted rape statutes that included the so-called "marital exemption."
However, in 1984's People v. Liberta, a case in which a defendant raped and sodomized his wife, the New York Court of Appeals held that there was "no rational basis for distinguishing between marital rape and nonmarital rape" and that there was "no evidence to support the premise that marital rape has less severe consequences than any other rape."
New York no longer embraced the widely cited explanation by English jurist Sir William Blackstone (1723-1780) of the common law rule of marriage that "he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything."
The New York Court of Appeals went on to hold that New York's marital exemption was unconstitutional, finding that rape is not merely a sexual offense against the unconsented, but is a violent and degrading act. The court noted that a "married woman has the same right to have control over her body as does and unmarried woman" and to hold otherwise would be "irrational and absurd."
After New York struck down the marital exemption, the states that had such an exemption followed suit. Now all 50 states agree with New York that: "A marriage license should not be viewed as giving a husband the right to coerce intercourse on demand."
So, Mr. Cohen, in this country, you can't rape your spouse with impunity.
Sol Wachtler was the chief judge of New York State and the author of People v. Liberta. He is a distinguished professor of constitutional law at Touro Law School.