Reforming Rape Laws: Marital Rape and Spousal Exemptions

Introduction: The Marital Rape Exemption

Until the late 1970s, spousal rape was not considered a crime in many states. The law had embedded a marital rape exemption within sexual assault statutes, meaning that a husband could not legally be charged with raping his wife. The philosophy behind this exemption held that when a husband and wife entered into the marital contract, the woman had consented to sexual intercourse whenever her husband demanded it. This doctrine was derived from an 18th-century principle articulated by English jurist Matthew Hale, who wrote: "the husband cannot be guilty of rape…for by their mutual matrimonial consent and contract, the wife has given up herself in this kind unto her husband, which she cannot retract" (Russell, 1990).

Advocates for women's rights protested the marital rape exemption, and in 1976 Nebraska became the first state to abolish it, with other states across the United States following suit. The New York state court ruled that a marriage license does not permit sexual assault and that consent through a matrimonial contract alone does not grant a husband authority to sexually abuse his wife. This argument generated significant debate and support for criminalizing spousal rape. States such as Illinois completely abandoned the spousal rape exemption in cases involving forcible or violent rape. California, however, defined spousal rape as a separate offense from stranger rape.

State-by-State Legal Variations in Spousal Rape

Spousal rape is treated differently across states. Because courts respond differently to the offense, the punishments imposed also vary significantly. In West Virginia, spousal sexual assault is defined as nonconsensual sexual penetration or sexual intrusion of the perpetrator's spouse. The perpetrator must use forcible compulsion, employ a deadly weapon, or inflict bodily injury or harm for the act to be considered a crime, which carries a sentence of two to ten years imprisonment. By contrast, if the same act were committed by a stranger or non-spouse, the resulting punishment would be ten to thirty-five years of imprisonment.

California law treats the offense similarly differently. Non-spousal rape committed through force, violence, duress, menace, or fear of immediate and unlawful bodily injury is treated more severely than the equivalent act committed within a marriage. These sentencing disparities reflect how deeply the legacy of the marital rape exemption remains embedded in U.S. sexual assault law.

Conclusion

Violence against intimate partners must be differentiated into categories, as such acts are committed for different motives. These categories are defined by the type of violence, the motives of the perpetrator, and the social and cultural context in which the violence occurs (Johnson, 1995). After long deliberation by courts of law, sexual assault within a marital relationship has been recognized as a crime, albeit with slight variations from state to state. These reforms reflect a growing acknowledgment of women's right to say yes or no — regardless of marital status.

References

Johnson, M. (1995). Patriarchal terrorism and common couple violence: Two forms of violence against women. Journal of Marriage and Family (National Council on Family Relations).

Russell, Diana E. H. (1990). Rape in marriage: Expanded and revised edition with a new introduction. Bloomington and Indianapolis: Indiana University Press.