Marital rape (United States law)

Marital rape in United States law, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim's spouse. It is a form of partner rape, of domestic violence, and of sexual abuse. Today, marital rape is illegal in all 50 US states.

The legal history of marital rape laws in the United States is a long and complex one, that spans over several decades. The criminalization of marital rape in the United States started in the mid-1970s and by 1993 marital rape became a crime in all 50 states, under at least one section of the sexual offense codes. During the 1990s, most states differentiated between the way marital rape and non-marital rape were treated. The laws have continued to change and evolve, with most states reforming their legislation in the 21st century, but differences remain in some states, in particular in South Carolina.

History to 1993

The views which contributed to rape laws not being applicable in marriage can be traced, at least partially, to 17th century English common law, which was exported to the British American colonies. The 17th-century English jurist, Sir Matthew Hale, stated the position of the common law in The History of the Pleas of the Crown (1736) that a husband cannot be guilty of the rape of his wife because the wife "hath given up herself in this kind to her husband, which she cannot retract". The principle, no record of which is found earlier than Hale's view, would continue to be accepted as a statement of the law in England and Wales until it was overturned by the House of Lords in the case of R. v. R in 1991,^[1] where it was described as an anachronistic and offensive legal fiction.

In the United States, prior to the mid-1970s marital rape was exempted from ordinary rape laws. The exemption is also found in the 1962 Model Penal Code, which stated that "A male who has sexual intercourse with a female not his wife is guilty of rape if: (...)".^[2]

In some states, courts have struck down the marital exemption as unconstitutional. In the 1984 New York Court of Appeals case of People v. Liberta, judge Sol Wachtler stated that "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".^[3] Similarly, in Alabama, the marital exemptions from the sodomy law (Williams v. State (1986)^[4]) and from the rape law (Merton v. State (1986)^[5]) were found unconstitutional.

By 1993, all states had withdrawn the marital rape exemptions, the last states to do so being Oklahoma and North Carolina^[6] (both in 1993) or the exemption had been declared judicially to be unconstitutional.

Legislative evolution since 1993

Although marital rape exemptions had been withdrawn in all states by 1993 or been declared judicially to be unconstitutional, in only 17 states was marital rape treated the same as non-marital rape. In the other states there continued to be significant differences in the way marital and non-marital rape were treated, such as less severe penalties, or excluding situations where no violence is used, or shorter reporting periods.^{[7][8][9][10]}

During the 1990s many states differentiated between three categories of victims:^[10][11]

• Unmarried persons, who had full protection by sexual offenses laws,
• Married persons who were in an abnormal marriage (e.g. separated, one spouse had filed for divorce etc.), who were often treated in an intermediate way, although many states treated them either as unmarried persons or as married cohabiting persons, and
• Married persons cohabiting (spouses living together under ordinary circumstances), many state laws were initially very restrictive, criminalizing only the "worst" forms of domestic sexual violence (e.g. requiring violence, a higher level of threat, injury etc.; and often punishing the crime less severely).

In the 1990s and beyond, feminists, women's and other organizations have continued to lobby for the amendment of marital rape laws to ensure marital rape is regarded and treated like any other rape, though rape laws in the United States are not uniform, and the laws have changed numerous times, but differences remain in some states.

South Carolina, for example, remains the only state where the force or violence used or threatened must be of a higher level (force or violence must be of a "high and aggravated nature" - see section below Current State laws).

A similar law existed in Tennessee until 2005, when it was repealed. The law stated that a person could be guilty of the rape of a spouse at a time they are living together only if that person either "was armed with a weapon or any article used or fashioned in a manner to lead the alleged victim to reasonably believe it to be a weapon" or "caused serious bodily injury to the alleged victim". This meant that, in practice, most cases of marital rape could not be prosecuted, since few rapes involve such extreme circumstances. The law was finally repealed in 2005, allowing for marital rape to be treated like any other type of rape.^[12][13][14] The bill to repeal the old law has been introduced more than ten times before it succeeded.

Until 2013, Washington had an exemption preventing a spouse from being prosecuted with third-degree-rape against the other spouse.^[15] Washington removed its exemptions for first-degree rape and second-degree rape in 1983,^[16] but the exemption for third-degree rape was removed 30 years later.^[17]

A 2003 study found that "twenty-four states and the District of Columbia have abolished marital immunity for sexual offenses [...] twenty-six states retain marital immunity in one form or another".^[18] Since 2003, several states have reformed their laws (see above).

Current state laws

Some states continue to treat marital and non-marital rape differently. The relevant laws are detailed below.

In Ohio, a rape that happens in marriage when the spouses are living together can only be charged under subsection A(2) of 2907.02 Rape, which states that: "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." By contrast, a person who is not married to the accused or who is married but living separate and apart can rely on many laws which deal with various forms of coercion. It is notable that subsection A(1)(a) of 2907.02 Rape that deals with drugging someone "surreptitiously or by force, threat of force, or deception" to coerce them into sex does not apply in marriage (except in case of separation). The whole article 2907.03 Sexual battery, that deals with various forms of coercion (for instance it states in subsection in A (1) that "The offender [commits a crime when he] knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution") does not apply at all to married people.^[19][20] In 2015, a bill^[21] was introduced to remove these exemptions.^[22]

Similarly, Maryland law states that, if the spouses are living together, a prosecution can take place only if the accused "uses force or threat of force and the act is without the consent of the spouse." If the spouses are separated they are treated as if they were strangers (See Section § 3-318)^[23]

A similar situation exists in Mississippi. A person can be convicted of sexual battery of a spouse when they are living together only if he engages in "forcible penetration against the victim's will".^[24] This excludes, among others, situations where the victim is "rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent".^[25]

Nevada law appears to require force or threat of force. Article 200.373 states that: "It is no defense to a charge of sexual assault that the perpetrator was, at the time of the assault, married to the victim, if the assault was committed by force or by the threat of force."^[26] This seems to imply that if force or threat of thereof were not used, marriage can be a defense. The general definition of sexual assault uses the wording "against the will of the victim" or "under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct".^[26]

In Oklahoma, rape by a spouse can only be charged under subsection (B) of Section 1111 - Rape Defined which states:^[27]

B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.

For instance, a person in Oklahoma can not charge her/his spouse for rape if she/he is compelled to submit due to drugs "administered by or with the privity of the accused as a means of forcing the victim to submit", or when she/he is unconscious, as these situations are dealt under subsection (A) of Section 1111 which define rape as intercourse "with a male or female who is not the spouse of the perpetrator ".

In Virginia, the main difference lies in punishment. Under certain circumstances, if the victim and the attorney for the Commonwealth agree, the perpetrator can undergo a therapy program, which if completed successfully, replaces any punishment. This can happen if "the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness."^[28] While the victim has to agree to this option, this can expose the victim to intimidation and threats from the perpetrator, or to social pressure to remain in the relation.

In Rhode Island, Article § 11-37-2 'First degree sexual assault', has four subsections; while subsections 2, 3 and 4 apply to spouses, subsection 1 does not; it reads: "The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless."^[29] This has the result of excluding from prosecution, among other situations, incidents where the victim was drugged by the perpetrator ("Mentally incapacitated" is defined by legislation as: "a person who is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or who is mentally unable to communicate unwillingness to engage in the act".^[30])

In Minnesota sexual violence occurring between spouses at the time they cohabit or between unmarried partners can be prosecuted only if there was force or threat of thereof, due to exemptions created by Article 609.349 'Voluntary relationships'^[31] which stipulates that certain sexual offenses do not apply to spouses (unless they are separated), and neither do they apply to unmarried cohabitants. These are offenses that deal with situations where the lack of consent is due to the incapacity of consent of the victim, including where the victim was drugged by the perpetrator. These situations which are excluded from prosecution are where the victim was "mentally impaired, mentally incapacitated, or physically helpless". The term "mentally incapacitated" is defined as a person who "under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration". (see Article 609.341 for definitions).^[32]

In Michigan, Section 750.520l excludes situations where the criminality comes solely due to the spouse being "mentally incapable, or mentally incapacitated."^[33] Section 750.520a Definitions reads: '"Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.'^[34]

Connecticut has a specific crime dealing with forced sex with a spouse and this doesn't apply only to spouses but also to unmarried cohabitants. The law is more narrow than the other sex laws and it has a shorter penalty. It is called Sec. 53a-70b. Sexual assault in spousal or cohabiting relationship and it reads:^[35]

No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.

The spousal rape law of Connecticut makes reference to force used or threatened against the "other spouse or cohabitor" while the 'ordinary' sexual assault law deals with force used or threatened against the "other person or against a third person".^[35]

South Carolina represents the most extreme situation. Not only is marital rape punished less severely and the victims have only 30 days to report, but the law requires a higher level of violence to be used. The law, titled "Spousal sexual battery" reads as follows:^[36]

(A) Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.

Marriageable age and the age of sexual consent

Although in most states the general marriageable age is 18, in most of these states a marriage of a person under 18 is allowed with parental and/or court consent. This often creates a conflict between the age of consent law and the marriageable age, with most statutory rape laws creating exceptions for minors engaged in a sexual relationship with their lawful spouse - although such minors would otherwise not be able to legally consent to sex. In Iowa, for instance, subsection (2) of article 709.4 Sexual abuse in third degree, excludes sexual acts committed by adults with children as young as 12, provided the parties are "cohabiting as husband and wife".^[37] This does not refer only to legal marriages, but also to informal cohabitation. (Iowa is one of few states which recognizes common law marriage) In 2012, a man who got his 13-year-old live-in-girlfriend pregnant tried to rely on this law. The man, who was of Mexican origin, argued that his relation could be considered as similar to marriage under cultural norms as they exist in his Mexican culture. The court rejected this argument, ruling that the exemption could be used only if the couple "objectively cohabited in the status of husband and wife, whether common law or otherwise", not if they merely believed they did.^[38] The issues of child marriage and forced marriage in the US have come to increased scrutiny in recent years.^[39][40]

References

External links

• Marital Rape and the Law