dissenting.
The victim in this case took a horrible beating. The integrity of her body was brutally invaded by her estranged husband. The facts in this appeal are such that the majority concedes that had the victim not been married to the assailant, the assailant would have been guilty of rape. Nevertheless, in an opinion which fails to give due precedential weight to the Court’s recent decision in Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984), the majority concludes, in essence, that Edward Kizer had a right to do what he did. The majority opinion marks a retreat from the principles announced in Weishaupt.
The majority states that Weishaupt requires the proof of three factors before a husband can be convicted of raping his wife. Those factors are that the wife must have
*2631. .lived separate and apart from her husband,
2. refrained from voluntary sexual intercourse with her husband, and
3. in light of all the circumstances, conducted herself in a manner that establishes a de facto end to the marriage.
The majority concedes that the Commonwealth proved the first two factors. However, according to the majority, the evidence failed to establish that the wife conducted herself in a manner that established a de facto end to the marriage.
In my opinion, the majority’s conclusion is wrong. Upon analysis, the majority’s error appears to stem from two things: first, the majority has added a condition that was not stated in Weishaupt; second, the majority has failed to consider the facts in the light most favorable to the Commonwealth.
According to the majority, before a husband can be found guilty of raping his wife, the wife must make “manifest objectively to the husband” the wife’s view that the marriage is at an end. Weishaupt nowhere requires that the wife make manifest to her husband that the marriage is at an end. Weishaupt requires only that the wife make manifest to an objective observer “her intent to terminate the marital relationship.” 227 Va. at 405, 315 S.E.2d at 855. The difference is that, under the majority view, the trial court must place itself in the position of the estranged husband to determine whether the husband should have known that his wife considered the marriage over. Under Weishaupt, the court was not required to place itself in the husband’s shoes; instead, it was called upon to occupy the more traditional posture of looking at the facts from the perspective of an objective observer to determine whether from that perspective the wife conducted herself in a manner that showed the marriage to be over. The perspective from which the facts are reviewed undoubtedly impacts upon the ultimate disposition of the case. The majority opinion works a subtle but important change in the perspective from which the facts are to be considered. This change is apparently designed to make it more difficult for a wife to establish the predicate necessary for conviction in a case of spousal rape.
The majority’s modification of Weishaupt is less critical to the proper disposition of this appeal than is the majority’s failure to consider the facts in the light most favorable to the Commonwealth. Of course, the majority submits that it has properly con*264sidered the facts. However, the conclusion it reaches indicates otherwise.
When viewed properly, the evidence shows the following: The couple was married on June 20, 1981. One child was born of the marriage. In September 1982, the couple began to experience marital difficulties. The couple did not engage in voluntary sexual relations from September 1982 through the attack which occurred in March 1983, a period of six months. The husband moved out of the marital abode in the middle of February, 1983. From that time to the attack there was neither sexual nor social contact between the parties. At the time the husband moved out, the parties discussed obtaining a legal separation. They even started on their way to visit a lawyer. The only reason they did not consult with a lawyer at that time was the fact that during the car ride the husband advised his estranged wife that his father was seriously ill. The wife decided to postpone the visit to the lawyer so as not to place an additional emotional burden upon her estranged husband while he tried to handle the problems associated with his father’s illness. Further, prior to the attack, the husband filed suit to secure custody of the couple’s child.
In my view, the foregoing facts meet either the original Weishaupt test or the modified test contained in the majority opinion. The single salient fact among all the facts and circumstances, and the one which makes this a stronger case for conviction than Weishaupt, is the husband’s attempt to secure the custody of the couple’s child. The majority mentions this fact but makes nothing of it, thus glossing over a very critical point.
In the normal course of events, husbands do not file custody suits unless they consider their marriages to be over. It is unrealistic to believe that the husband in this case would have sued for the custody of his child unless he thought the relationship with his wife was at an end. This husbánd demonstrated by his action in filing a custody suit that it was manifest to him that his marriage was over. The pendency of the custody suit added to the six-month absence of sexual relations and the one-month separation would lead any objective husband or impartial observer to conclude that the marriage in question was at an end.
Thus, in my opinion, the conviction for rape should be affirmed.
CARRICO, C.J., joins in this dissent.