UP IN THE BALCONY we knew what was happening. On the screen, Rhett Butler had scooped the willful but beautiful Scarlett O'Hara into his arms and took her up the stairs-her little fists pounding his chest in protest. She squirmed and fought, but in the morning she awoke with a smile. She was happy at last.Her husband had raped her.

Oh boy! In the balcony we understood, giving each other the elbow as the mysteries of adult life unfolded before us. Boy, did we understand. What she needed was a good you-know-what and her husband, as was his right, had given it to her. We knew about such things. Women were like that-fighting, but then giving in. Sometimes you had to be a little rough. In the balcony we knew that. We knew that in this sense, at least, a man could do what he wanted with his wife.

It turns out that we were right. This is almost beyond comprehension because we were right on almost nothing else. We believed that sex cured acne and that hooky would keep you out of the Army and that if you made love to a woman she would love you forever-like taking a thorn out of a lion's paw. But on the marital rape business we were right. You can do it. The law, it turns out, is still in the balcony. And it might not matter at all, matter only to a few women, were it not for the fact that you would think that by now the principle that a woman owns her own body is well established. She does-until she gets married.

This comes up now because of a casein Oregon in which a woman has charged that her husband raped her. Oregon happens to be one of maybe two states where such a charge can be brought. The rest of the states and the District of Columbia recognise no such crime. In those places, marital rape is a legal impossibility. Physically it could happen, but when it happens it is not a crime. It is something else. It is assault or maybe brutality but it cannot be rape. A husband cannot rape his wife in these states.

The primary reason for that is that marriage has always been interpreted to mean consent-that being married means never having to ask.

Consent is implied, taken for granted, beyond discussion. It is a concept rooted in the aptly named common law, and it enhances the flattering notion that men, heavy breathers that we are, are passionate while women are not. Every once in a while you have to get a little rough with women to get them to come across-as they used to say in the balcony. A glance at the cover of women's magazines would indicate that the reverse is closer to the truth, but the law, being blind, has not noticed.

Anyway, like everything else in life, marital rape or forced sex in marriage, gets hopelessly complicated when you start talking to lawyers. It is so complicated that, on some occasions, some states and Washington, D.C., have opted to do nothing about changing the law because no one can think of a way to do it. A major concern to some people, for instance, is the issue of privacy-the notion that the government ought to have no business at all in the conjugal bedroom. If there is a problem, divorce ought to be the answer. There's something to that.

There are other concerns. Some lawyers fear that the charge of rape would be used as a bargaining tactic in a divorce proceeding. It is, after all, a felony, and if proved it would entitle a woman to a divorce. But their main lbjection, really, is that they see nothing but confusion down the road, a morass in which nothing could ever be proved. Rape under the best of evidentiary circumstances is difficult to prove and almost impossible when the parties know each other. In a marriage situation,, it would be nearly impossible. After all, the people involved sleep together, probably, and have been having sex-are married, in other words.

But somehow you have to think that the legal minds that created and perfected the entity of the corporation can come up with an answer to this one. As things stand now, the law is a gun in the holster of men who think that they are entitled to sex on demand and it helps explain why some women think they have to submit. If you doubt this happens, check with the people who run rape crisis centers. They can tell you that rape in marriage may not exist legally, but it exists in practice.

In the end, the marital status of the victim should not matter. The only thing that matters is whether a rape has occurred and there is really no reason to carry on the books a law that implies ownership, some sort of contractual right to another person's body regardless of mood or feeling or even, God forbid, what's on television.

In the movies, Scarlett smiled the next morning.

In real life, the woman filed charges.