The 17th-century English jurist, Sir Matthew Halestated the position of the common law in The History of the Pleas of the Crown posthumously, that a "husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract". The ruling, although no legal record of which is found earlier than Hale, likely relied on even earlier standards. In a case of Lord Audley'sfor instance, he cites the jurist Bracton c. R in where it was described as an anachronistic and offensive legal fiction.
Share on Facebook Marital rape was a term that was viewed by the law as an oxymoron until shamefully late in U. This article is a general discussion of marital rape laws. For more information on marital rape laws on a state-by-state basis, see Marital Rape Laws and Penalties.
What is Marital Rape? Simply put, all rape turns on the issue of consent. Regardless of the relationship between rapist and victim, rape occurs when one person forces another person to have sex. The frequency of marital rape is statistically significant: Despite these numbers, husbands historically have not been prosecuted for marital rape.
The belated elimination of antiquated marital rape exceptions is a product of the persistence of traditional views of marital relationships and sexism. Historic View While it has generally been illegal at all times for a man to force sex upon a woman other than his wife, a husband could force sex upon his wife without violating the law until very recently.
The justifications for this marital rape exception were: An case in Massachusetts was the first in the U. This defense became part of the rape laws in every state. The third justification posed the greatest hurdle to rescinding the marital rape exception, but the fundamental incoherence of the justification has undercut its sway.
Modern View The historic justifications for the marital rape exception have been largely discarded. However, there are several other justifications more recently proposed by those who continued to support the exception, including: Marital rape did not happen often enough to merit rescinding the exception.
Other laws, such as assault and battery, provide a raped wife with avenues for recourse that are less fraught than bringing rape charges against her husband. Just as damning, the marital rape exceptions gave fewer legal protections to women who were married to their assailants than to women who were raped by strangers, for no valid reason.
InNebraska became the first state to throw out its marital rape exception law. Seventeen years later, all 50 states had revoked their marital rape exceptions. But, while many states have revised their rape laws to draw no distinction between marital and non-marital rape, some states persist in distinguishing in certain ways between marital and non-marital rape.
Persistent Obstacles to Prosecution Only about half of the states have totally abolished the distinction between marital and non-marital rape. Twenty of the states that have kept the distinction grant immunity to a husband who has sex with his wife while she is unconscious or otherwise incapable of giving consent.
In the states whose laws have maintained the distinction between marital and non-marital rape, the prosecution is confronted with elevated levels of proof built into these laws. Statutory obstacles Some of the states that still treat marital rape differently from non-marital rape require that marital rape victims report the crime within a shorter period of time than is required of non-marital rape victims.
And, some of these states impose less severe sentences upon rapists who are married to their victims than on those who are not, including allowing for dismissal of charges if the victim-spouse agrees and if the spouse-rapist undergoes counseling.
Some states even require that the prosecution make a greater showing that force or violence was used during marital rape than is required in a non-marital rape case.
Emotional and cultural obstacles Thanks to the added statutory obstacles, prosecutors can be reluctant to pursue marital rape cases. And, spouse-victims of marital rape have the added trauma of sexual assault by their partner, the person with whom they live and, often, the parent of their children on top of the trauma all rape victims experience.
Social stigma, the impact on children, and family shame may also add to the pressures a person faces when considering whether to report a marital rape. DNA or semen sample evidence would be irrelevant because the spouses it may have resulted from consensual sex between the spouses before the rape.
More Work to be Done There simply is no justification for any state to maintain rape laws that distinguish between spouses and other victims of rape. Rape is a crime of violence and the fact that the perpetrator and the victim are married should have no more weight than it does when a husband beats his wife.
Simply bringing the marital rape laws into line with domestic violence laws would improve the situation for spouse-victims in the states where the marital rape distinction persists. If you have questions about marital rape laws where you live, consult a lawyer with experience in the laws of your state.In Virginia, court-approved marital and/or personal counseling can be substituted for fines and prison time in marital rape cases.
The victim must agree and the option is available only once. On July 5, , marital rape became a crime in all 50 states, under at least one section of the sexual offense codes. In 20 states, the District of Columbia, and on federal lands there are no exemptions from rape prosecution granted to husbands.
The case believed to be the first-ever American conviction for spousal rape came that fall, when a Salem, Mass., bartender drunkenly burst into the home he used to share with his estranged wife. For an in-depth look at the origins of the marital rape exemption, see The History of Marital Rape.
Martial Exemption Today Since , all 50 states and DC have enacted laws against marital rape. rape is a crime of violence, it is not sex. at common law, rape was defined as the unlawful carnal knowledge of a woman, without her consent. Special state laws for marital rape exist across the U.S.
in states as liberal as Connecticut, which requires the familiar “use of force” or the “threat of the use of force” to prosecute.