Beta, not enforced yet. Such law is under consideration
The law is already set and can be used here anytime, although it
is not legislated yet.
Until the late 1970's, most states did not
consider spousal rape a crime. Typically, spouses were exempted
from the sexual assault laws. For example, until 1993 North
Carolina law stated that "a person may not be
prosecuted under this article if the victim is the person's legal
spouse at the time of the commission of the alleged rape or sexual
offense unless the parties are living separate and
apart." These laws are traceable to a pronouncement by
Michael Hale, who was Chief Justice in England in the 17th century,
that a husband cannot be guilty of rape of his wife "for by their
mutual matrimonial consent and contract the wife hath given up
herself in this kind unto the husband which she cannot
retract."(1) In
the late 1970's, feminists began efforts to change these laws.
Currently, rape of a spouse is a crime in all 50 states and the
District of Columbia (2).
The states used three different techniques for
criminalizing spousal rape. The majority of states simply removed
the marital rape exemption, without adding any other language.
Other states replaced the exclusionary language with text
specifying that marriage to the victim is not a defense. A few
states created a separate offense of "spousal rape."
While spousal rape is now considered a crime, victims
often have to overcome additional legal hurdles to prosecution not
present for other victims of rape. These include time limits for
reporting the offense, a requirement that force or threat of force
be used by the offender, and the fact that some sexual assault
offenses still preclude spousal victims.
The most common approach states took to
eliminate the spousal rape exemption was to simply remove the
language which provided it. Pennsylvania initially had a separate
offense of spousal rape, which was a lower level offense than
non-spousal rape. The law was repealed in 1995 to remove any
language which indicated that the relationship between victim and
offender was relevant, so that now in Pennsylvania "rape is
rape."
Maine is another state which removed its exemption.
During the legislative battle to change the law, one legislator
even stated, "Any woman who claims she has been raped by her spouse
has not been properly bedded." While the law has been revised,
attitudes have been slower to change. Advocates report that many
people still do not recognize spousal rape as rape.
Several states have amended their laws to
specify that marriage is not a defense to certain crimes. For
example, the North Carolina law mentioned above was amended to
read: "A person may be prosecuted under this Article whether or not
the victim is the person's legal spouse at the time of the
commission of the alleged rape or sexual offense."(3) This
law makes it clear that sexual offenses by spouses should be
treated the same as sexual assault by others.
Another example is from Washington, D.C., where the law
states that a person can be prosecuted for sexual assault against a
spouse (4).
Even though prior to the enactment of this law, the law did not
differentiate between spousal rape and non-spousal rape, this
approach was chosen as a way to address the societal presumption
that rape can not happen in marriage.
In seven states, rape of a spouse is a
separate crime from rape where the victim and offender are
unmarried. For example, in West Virginia, spousal sexual assault is
defined as unconsented sexual penetration or sexual intrusion of
the perpetrator's spouse. In addition, the perpetrator must use
forcible compulsion or a deadly weapon or inflict serious bodily
injury upon anyone.(5) This
offense is a felony, punishable by imprisonment for two to ten
years. The same acts against a person who is not married to the
perpetrator result in a sentence of ten to thirty-five years.
An example of a similar statute comes from
California. (6) The
offenses of rape and spousal rape mostly parallel each other, but
with some differences (7).
For instance, a person who commits non-spousal rape by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury may not be sentenced to probation or suspended
sentence. (8)However,
this prohibition does not apply to those who use the same means to
commit spousal rape.
While all states recognize spousal rape as a
crime, still, there are ways in which spousal rape is treated
differently than non-spousal rape. One difference in some states is
a reporting period which is shorter for spousal rape than for other
crimes. In Illinois, "prosecution of a spouse of a victim under
this subsection ...is barred unless the victim reported such
offense to a law enforcement agency or the State's Attorney's
office within 30 days after the offense was committed, except when
the court finds good cause for the delay." (9)
Prior to 1993, California victims were required to
report the offense to a peace officer or prosecutor within 90 days
of the crime. In 1993, the state's law was amended to expand the
reporting period to one year (as opposed to at least three years
for non-spousal rape). (10) The
amendment also broadened the professionals to whom the report could
be made to include medical personnel, clergy, attorneys, shelter
representatives, counselors, judicial officers, rape crisis
agencies, and firefighters. The reporting requirement does not
apply if the victim's allegation is corroborated by independent
evidence that would be admissible during trial. A suggested reason
for this and other restrictions on spousal rape victims is that the
legislators are afraid people will make up stories of rape for use
in a custody proceeding, or to harm their spouses (11).
Another way that some states treat rape of a
spouse is treated differently than non-spousal rape is the
requirement that force or threat of force must be used by the
spouse. For instance, in Tennessee, a person only commits rape or
sexual battery of a spouse when the person is armed with a weapon
or credible decoy, causes serious bodily injury to the victim, or
when the spouses live separate apart and one of them has filed for
a divorce or separation. (12) Similarly,
in Nevada, marriage is a defense to sexual assault of a spouse
except where "the assault was committed by force or by the threat
of force." (13) In
contrast, many non-spousal sexual assault laws refer to lack of
consent, rather than the use of force.
Still, in many states, there are some offenses
which are unavailable to victims who are married to the
offender (14).
In some, offenses which involve sexual acts other than penetration
are precluded for spouses. For example, in Kansas, sexual battery
consists of "the intentional touching of the person of another who
is 16 or more years of age, who is not the spouse of the offender
and who does not consent thereto, with the intent to arouse or
satisfy the sexual desires of the offender or another." (15) In
Ohio, the offense of "sexual battery" does not apply to a spouse,
and the offense of "rape" by the use of a drug or intoxicant which
impairs the victim's ability to resist only applies to a spouse who
is living separate and apart from the victim. (16)
The states made progress in the past 20 years
toward eliminating exemptions for sex offenders who are married to
their victims. However, differences in the treatment of rape of a
spouse from that of non-spousal rape remain. These include:
reporting requirements, requirements that the offender use force or
threat of force, and the fact that some offenses contain exemptions
for spouses. States may want to consider the status of their
spousal rape laws and amend them to create protections for victims
of spousal rape equal to those for other victims of sexual
assault.
Thanks to the following people for giving time and
lending expertise to the development of this article: Nancy Lemon
of the Boalt Hall School of Law and the California Alliance Aganst
Domestic Violence; Nancy Hoffman of the West Virginia Foundation
for Rape Information; Denise Snyder of the Washington, D.C. Rape
Crisis Center; Marty McIntyre of the Sexual Assault Crisis Center
of Lewiston; and Deanna Ferraino of the Pennsylvania Coalition
Against Rape.
