Oregon v. Rideout

In November, a circuit court judge denied Rideout's request to have the case dismissed on constitutional grounds. When it became clear that the criminal trial would proceed, District Attorney Gortmaker asked Judge Barber to prohibit "common law defenses," that is, a defense of John Rideout's actions based upon the common law presumption that a wife cannot refuse to have intercourse with her husband. Gortmaker argued that Oregon's law, passed in 1977, had replaced English common law within the state. The judge denied the motion.

Charles Burt, Rideout's lawyer, explained the common law "marital privilege" for prospective jurors on 19 December. He said that the issue was not whether the couple had had sex on 11 October, but whether there had been "forcible compulsion" and whether a woman's marriage to a man meant she could not say "no."

Dr. Gilbert Geis, a professor of criminology at the University of California at Irvine and a specialist in the issue of spousal exemption, spoke to Les Ledbetter of the New York Times during the trial. He traced husbands' immunity from charges of rape to a seventeenth century English jurist, Judge Matthew Hale. Hale's promulgation, as recorded in the 1736 "Historia Placitorum Coronae, A History of the Pleas to the Crown," explains that "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by the mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract." (Dr. Geis also pointed out Hale's other claim to fame was the number of witches hung by his order during the 1660s.)