“Marital Rape” Was Legal Longer Than You Think

As a scholar and professor of horror, history, and feminism, one of the questions I ask my students most often is when they think marital rape was criminalized in New York State. They usually guess around 1900, sometimes as late as 1950. But the truth is far more horrifying: Until the landmark New York case of People vs. Liberta was decided on December 20, 1984, it was technically—and legally—impossible for a man to rape his own wife, according to New York State Law, which meant that married women in New York could be and were sexually assaulted in their own homes with no legal recourse. 

New York wasn’t the only state to have this law on the books. Prior to the 1980s, there was a pervasive belief throughout the United States that a woman permanently gave away her right to say no to sexual intercourse when she married a man. As scholar Diana Russell discusses in her book Rape in Marriage (Indiana University Press, 1990), in legal doctrine, the “marital exemption” specifically and precisely meant that no husband could be convicted of raping his wife. More “minor” sexual infractions, like forced fellatio, forced fondling, or the practice of sadomasochism in the bedroom were even farther from the realm of plausible criminalization or prosecution.  

The facts of People vs. Liberta were so and appalling and unambiguous that New York Supreme Court Justice Sol Wachtler wasn’t about to let Mr. Liberta off the hook. The details of the case are very upsetting, but understanding how bad things had to be to get a judge to put his foot down is an important part of the history of the fight for women’s rights in New York—and in the United States: 

The plaintiff, Mrs. Denise Liberta, was already separated from her husband at the time of the assault. Mr. Mario Liberta was reputed to be a violent man, and she was filing for divorce in an effort to protect herself and their child so they could get away from him. Mrs. Liberta had previously been granted an Order of Protection (called a Restraining Order in many states) against her husband by Family Court because his patterns of violence were well established by this time—in 1980. They also gave Mr. Liberta the right to visit with his son once a week. Despite the Libertas’ separation and the Order of Protection against Mr. Liberta, that same court awarded him the right to visit with his son once a week. So in 1981, she agreed to take her son to see Mr. Liberta in a hotel room (she didn’t want him coming to her home) with the assurance there would be a chaperone present throughout the visit. The chaperone was there to protect her and her child from Mr. Liberta. But soon after she arrived in the hotel room, the third party left, and Mr. Liberta vaginally and anally raped his estranged wife in front of their child.

Mrs. Liberta pressed charges. Mr. Liberta argued that, because of the “marital exemption,” whereby a man could not be found legally guilty of raping his own wife, there had been no rape. Astonishingly, at the initial trial, the judge sided with Mr. Liberta: In the eyes of the law, it wasn’t possible for a man to rape his wife, and, technically, Mrs. Liberta was still married to him, despite her documented efforts to escape. Mario Liberta walked free. Case dismissed.

Fortunately for the history of women in New York State, Mrs. Liberta was brave. Surmounting the fear, pain, rage, and humiliation she must have been experiencing, Mrs. Liberta appealed this decision. The case finally came before the New York State Supreme Court, where Judge Sol Wachtler saw the situation a bit differently. In a landmark decision that would set the bar for the federal recognition and criminalization of rape in marriage, Judge Wachtler pointed out that there was no rational basis for making a distinction between marital rape and rape outside of a marriage. Further, he noted that the marital exemption violated a married woman’s rights to equal protection under the law. Indeed, said Wachtler in his oft-quoted opinion, “A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.” The final decision was rendered on December 20, 1984, in favor of Mrs. Liberta. 

By the end of 1984, 17 other states had at least partially stricken the marital exemption prior to Judge Wachtler’s ruling, but his would be the landmark case from which most subsequent state and federal cases later took their cue. The headline in the New York Times read, “New York Joins 17 States That Deny Wives Are Property; Rape in Marriage Is No Longer Within the Law.”  Can you imagine? In 1984, there were only 18 American states that denied wives were the sexual property of their husbands? It took until July 5, 1993 for marital rape to be recognized and criminalized in all 50 states.

It’s worth noting that it took a spectacularly violent, dehumanizing, and sadistic act of rape and sodomy—in front of a young child—to get the Court to think differently about a man’s “right” to extract sex from his wife. Moreover, the victim in this case was already separated from her husband at the time, and had an Order of Protection against him. Mrs. Denise Liberta had proven in the eyes of the law already that Mr. Mario Liberta was a violent, dangerous man, and she had established her clear and fixed intent to leave him.  The problem was that she was not technically divorced yet. 

These circumstances undoubtedly made it easier for the judge to see the unfairness of her situation, and the criminality of her husband. I shudder to think what the outcome of the case would have been had she not already filed an Order of Protection and had her husband vacate the marital residence. Would anyone have believed she didn’t consent? Would anyone have cared if there hadn’t been an unmistakeable paper trail leading up to the violent sexual assault, to indicate that this man’s attentions were not just unwanted, but actually feared? What would happen if the wife didn’t clearly or enthusiastically consent, but also didn’t say no? What would happen if a wife let her husband enact abusive sexual acts upon her, and then tried to stop him, once he had begun? What would happen if a woman who had allowed her husband to perform sadomasochistic sex acts on her in the past decided she didn’t want to have sex with him one particular time? Was that rape? These were questions that Americans were left to ponder in the mid 1980s and beyond.

Forty years later, in late December 2024, American women are standing at a precipice, surveying the bleak landscape that will someday be called the waning days of American feminism. So on this crucial but under-recognized anniversary day, I want to thank Denise Liberta for her fierceness, her sacrifice, and her refusal to be silenced. I want to encourage all historical and current victims and survivors of sexual violence to pursue their own safety, and also to use their voices to help bolster our quavering rights by making appeals to politicians and lawmakers to make things better. The law is a highly imperfect instrument for pursuing rights, but it is—for the moment at least—still the best instrument we’ve got. And I want to invite us all to think seriously and deeply about how bad the violation had to be to get the law to open its eyes. Consider the untold thousands of American women who are sexually assaulted in their marriages every year. I’d like to encourage us to decide together, as a community of human beings, to side with Judge Wachtler in concluding that “a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.” Finally, I want to convey my gratitude to brave women nowadays–including the indomitable Gisèle Pelicot, who, this week, won a case against her husband for having drugged her, raped her, and invited dozens of men he met on the internet to rape her while she was unconscious. I would love to live in a world where the circumstances of the Liberta trial felt like a distant, horrifying fairy tale. Sadly, that is not our world, unless we fight for it with all our might and all our voices.