Although rape in marriage is a prevalent form of violence against women, the criminalization of forced sex with one’s wife is a relatively recent occurrence. According to Laura X of the National Clearinghouse on Marital and Date Rape, on July 5, 1993, marital rape became a law under at least one section of the sexual offense code in every state, the District of Columbia, and on federal lands. This development is important because historically married men were exempt from charges of raping their spouses. Some researchers, such as David Finkelhor and Kersti Yllo, have argued that men were provided with a license to rape their wives. Historically, legal definitions of rape included forcible intercourse with a woman not the wife of a man. The origin of this exemption is grounded in English Common Law and in the words of Chief Justice Hale who decreed that with marriage women gave their irrevocable consent to sex.
This marital rape exemption went largely unchallenged until the 1970s when women in the anti-rape movement argued for its elimination on the grounds that the existing rape laws did not provide all women with equal protection from rape. Changes occurred slowly. In 1978, John Rideout became the first man to be criminally prosecuted for raping his wife while they still lived together. In the case of People v. Liberta in 1984, New York became the first state to have its marital rape exemption legally overturned on the grounds that it provided unequal protection to married women.
Today, marital rape is a crime in every state under at least one section of the sexual offense codes. However, there is considerable variation in states’ rape legislation and how men are prosecuted for raping their wives. According to the National Clearinghouse on Marital and Date Rape, there are currently 20 states with no exemptions; in these states, rape by one’s husband is treated as seriously as rape by another perpetrator. However, in 30 states, rape by one’s spouse is treated as a lesser crime. In most states, husbands may be exempt from charges of rape if the crime is not reported to the police quickly or if additional force was not used in the assault. In many states, consent from one’s wife is assumed unless she is resisting. In addition, a woman’s consent may be assumed when she is legally unable to give consent (or resist), such as if she is asleep or physically or mentally incapacitated.
Although much progress has been made in changing the legislation so that all women are protected equally under the law, there are still many states that treat rape in marriage as a lesser crime.
- Bergen, R. K. (with Barnhill, E.). (2006, February). Marital rape: New research and directions. Retrieved from http://vawnet.org/sites/default/files/materials/files/2016-09/AR_MaritalRapeRevised.pdf
- Eskow, L. R. (1996). The ultimate weapon: Demythologizing spousal rape and reconceptualizing its prosecution. Stanford Law Review, 48, 677–709.
- Finkelhor, D., & Yllo, K. (1985). License to rape: Sexual abuse of wives. New York: Holt, Rinehart, and Winston.
- Russell, D. E. H. (1990). Rape in marriage. New York: Macmillan Press.
- X, L. (1999). Accomplishing the impossible: An advocate’s notes from the successful campaign to make marital and date rape a crime in all 50 U.S. states and other countries. Violence Against Women, 5, 1064–1081.
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