## Facts

- The State alleged that on October 1, 1975, Albert Smith broke into the apartment of his estranged wife, Alfreda Smith, repeatedly beat her, and forcibly raped her.
- The spouses had been married about seven years but had lived separately for approximately one year and resided in different cities.
- There was no formal separation agreement and no divorce action pending at the time of the alleged assault.
- The record did not establish any operative judicial order of separation or restraint; the court proceeded on the assumption that no such order existed.
- Smith was indicted for rape and related offenses; he sought dismissal of the rape count based on a claimed common-law marital exemption incorporated into former N.J.S.A. 2A:138-1.
- After the alleged offense, New Jersey’s Criminal Code (effective Sept. 1, 1979) expressly eliminated marriage as a defense to sexual offenses, but the prosecution was governed by the pre-Code statute.

## Issues

1. Whether former N.J.S.A. 2A:138-1 permitted prosecution of a husband for raping his wife, notwithstanding an asserted common-law marital rape exemption.
2. Whether applying a construction permitting such prosecution to conduct in 1975 would violate due process by failing to provide fair warning.
3. If any marital exemption existed, whether it extended to spouses who were estranged and living apart without formal separation or divorce.

## Decision

- The Supreme Court of New Jersey reversed the dismissal of the rape count and remanded for further proceedings.
- The court held that, at least on these facts, Smith could be charged with and convicted of raping his wife under former N.J.S.A. 2A:138-1.
- The court concluded that the statute’s broad phrasing applied to “any person” and did not contain a textual marital exemption.
- The court determined that any common-law marital immunity was not absolute and did not bar prosecution where the spouses were estranged, living apart, and the alleged intercourse was forcible and violent.
- The court held that its interpretation did not offend due process because the absence of a statutory exemption and the developing limitations on marital immunity made prosecution reasonably foreseeable.

## Legal Principles

- A criminal statute broadly applying to “any person” is not read to contain an implied categorical marital exemption absent clear statutory text.
- Any residual common-law marital rape immunity, if recognized at all, is limited where the marital relationship has effectively broken down, including estrangement and separate residences.
- Due process prohibits unforeseeable judicial enlargement of criminal liability, but a construction consistent with statutory text and legal developments can be applied to earlier conduct when fair warning exists.
- Subsequent legislative abolition of a marital defense is not retroactive, but it may confirm the policy direction relevant to interpreting earlier statutory language.

## Conclusion

The court held that former N.J.S.A. 2A:138-1 allowed prosecution of a husband for the forcible rape of his estranged wife living separately, and that applying this interpretation to the 1975 allegations did not violate due process.


State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981)