Marital or spousal rape is illegal in every state, but it's only been this way since 1993. Until 1976, every state had a "marital exemption" that allowed a husband to rape his wife without fear of legal consequences. Despite being illegal now, certain states still treat spousal or marital rape differently than other rape offenses.
The terms "marital rape" and "spousal rape" describe engaging in nonconsensual sexual activity with one's spouse. The aggressor can be the husband or wife, and the victim may be a spouse of the opposite or same sex. Any person who uses force, threats, violence, or other means to coerce sex from their spouse without consent commits rape, just as if the same conduct occurred between unmarried persons.
All states now recognize rape within marriage as a crime, and most charge the crime in the same way that rape involving a non-spouse would be charged. However, several states still have differences in the law for rape between spouses.
Some states punish marital rape less harshly than other rape crimes. For instance, South Carolina imposes a maximum 10-year sentence for spousal sexual battery accomplished by aggravated force. However, the same crime committed by a non-spouse (criminal sexual conduct) carries up to 30 years in prison. The law even prevents prosecutors from charging a spouse with the harsher crime of criminal sexual conduct. Also, in South Carolina, a prosecution for spousal sexual battery may not proceed unless the offending spouse's conduct was reported to law enforcement within 30 days of the event. (S.C. Code §§ 16-3-615, -652, -658 (2022).)
Several states provide legal loopholes or defenses when it comes to prosecuting marital rape. For instance, New York provides a defense to sex crimes if the defendant is married to the victim and the crime is based on lack of consent due to a mental disability or age. (N.Y. Penal Law § 130.00 (2022).) California law includes a similar loophole by stating that a spouse cannot commit rape based on lack of consent due to the victim's mental disorder, developmental disability, or physical disability. (Cal. Penal Code § 261 (2022).)
Prosecuting a marital rape case comes with complications, especially given the nature of the relationship between the defendant and victim. Spouse-victims of marital rape have the 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 testify in a case of marital rape. Jurors sometimes doubt that a husband actually raped his own wife.
However, prosecutors have tools available to help in these cases. Marital rape often involves domestic violence, which many offices now have experience prosecuting. Prosecutors might not need to rely solely on the spouse-victim's testimony. Other evidence showing domestic violence in the relationship can be helpful to the case, especially when explaining to jurors the dynamics of control and power in intimate relationships. Prosecutors might also charge other crimes that occurred around or at the same time as the sexual assault, such as stalking, assault, battery, criminal threats, and strangulation.
Many states penalize marital rape like any other rape. Typically, the applicable punishment will vary according to the severity of the circumstances of the crime. Rape that involves force, threats of force, weapons, or physical harm tends to carry the most severe penalties, with possible prison sentences of 25 to 50 years or more. Other types of rape not involving force or harm might have sentences of 10 to 20 years' prison time.
As noted above, some states have more lenient penalties available for someone convicted of raping a spouse. South Carolina is a prime example, with a maximum penalty that is 20 years shorter for spousal rape than other types of rape. Another interesting example involves Virginia law. Here, the court may defer prosecution and waive fines and prison time if the defendant-spouse successfully completes a court-approved counseling program. This option is available only if the victim agrees to it, and may only be used once. While this might sound like it provides an opportunity for reconciliation, it actually allows an abuser to intimidate a victimized spouse into approving lesser penalties—something that other victims may not do. (Va. Code § 18.2-61 (2022).)
Anyone facing rape charges should consult with a criminal defense attorney. A defense lawyer can help you understand the charges and possible penalties, develop a defense strategy, and protect your constitutional rights.
If you are a victim of rape or sexual abuse, contact the Rape, Abuse & Incest National Network (RAINN) for help and referrals to local resources. You can find their information online at rainn.org or by calling 800-656-HOPE (4673).