COLUMBUS, Ohio (AP) — Witches were still being burned at the stake when Sir Matthew Hale came up with his legal theory that rape could not happen within marriage. The 17th century English jurist declared it legally impossible because wedding vows implied a wife’s ongoing consent to sex.
Three and a half centuries later, vestiges of the so-called “marital rape exemption” or “spousal defense” still exist in most states — remnants of the English common law that helped inform American legal traditions. Legislative attempts to end or modify those exemptions have a mixed record but have received renewed attention in the #MeToo era.
The most recent efforts to roll back protections for spouses focus on rapes that happen when a partner is drugged, unconscious or otherwise incapacitated. Minnesota is the latest to take action. The state Legislature this week voted to eliminate the exemption, which had prevented prosecutions in those cases.
“No longer will this antiquated and shameful law be on our books,” Gov. Tim Walz said as he signed the bill into law Thursday. “The concept of a pre-existing relationship defense should have never been part of our criminal statutes.”
In Ohio, determined opponents plan to re-introduce a marital rape bill this month, after two earlier attempts failed.
Former lawmaker and prosecutor Greta Johnson was the first to introduce the Ohio legislation in 2015. She said having to address whether a woman was married to her attacker as part of sexual assault prosecutions struck her as “appalling and archaic.”
“Certainly, there was a marital exemption lifted years ago, but it was just for what in the prosecutorial world we call the force element — by force or threat of force,” she said. “You could still drug your spouse and have sex with them, and it’s not rape. You could commit sexual imposition against your spouse, and it’s not a crime. It was really troubling.”
All 50 states had laws making marital rape a crime by 1993, whether as a result of the two preceding decades of activism by women’s rights groups or because of a pivotal court ruling. Nearly 9 percent of women and 0.8 percent of men have been raped by an intimate partner, according to the Centers for Disease Control and Prevention. National surveys have placed the percentage of women raped within marriage between 10-14 percent.
Still, many states’ marital rape laws have loopholes — not only involving the victim’s capacity to consent, but related to age, relationship, use of force or the nature of the penetration. Some impose short timeframes for victims to report spousal rape.
A recent Maryland bill sought to erase the marital exemption for all sex crimes.
During discussion of the bill, one skeptical male lawmaker wondered whether a spouse might be charged with sexual assault for “smacking the other’s behind” during an argument. Maryland Del. Frank Conaway Jr., a Baltimore Democrat, raised religious concerns.
“If your religion believes if you’re married, two are as one body, then what happens? Can you get a religious exemption?” he asked.
“No, I would actually say that the First Amendment would prevent the state from getting entangled in that sort of judgment,” replied Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault. “So you would have to rely on your faith and your commitment to that to not bring those charges. But that’s no place for the General Assembly.”
The bill died in March.
Professor D. Kelly Weisberg, of the University of California Hastings College of the Law, said the Maryland debate touched on some of the common rationales for the marital rape exemption over the centuries.
One is Hale’s premise from the 1670s that marriage implies irrevocable consent and even property rights by the husband over his wife and her body. Those ideas have never truly disappeared, said Weisberg, author of a new reference book on domestic violence law.
She said other arguments for such laws are that marital privacy is a constitutional right, as when spouses can’t be forced to testify against one another in court, that marital rape isn’t serious enough to criminalize and that it would be difficult to prove.