Marital rape was a term that was viewed by the law as an oxymoron until shamefully late in U.S. history. Until the 1970’s, the rape laws in every state in the union included an exception if the rapist and the victim were husband and wife. In 1993, all 50 states had finally eliminated the “marital rape exception.” But the effects of these archaic exceptions persist and interfere with spousal rape prosecutions in some states.

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. “Marital rape” refers to the rape of one spouse by the other. The frequency of marital rape is statistically significant: Studies have shown that between 10% and 15% of women have been raped by their husbands. 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:

• the British common law view that the contract of marriage includes the husband’s “right to sex”—the wife having given consent for all time by entering the contract
• the traditional view of wives as the property of their husbands with which they could do as they pleased under common law, and
• the public interest in promoting privacy and harmony in marital relationships, which discouraged the state from interfering in the relationships.

An 1857 case in Massachusetts was the first in the U.S. to recognize the “contract” justification for the marital defense to rape. The “right” of a husband to sex with his wife also provided a husband with grounds for divorce if his wife refused sex. 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. As the Supreme Court of Virginia has noted, it is “hard to imagine how charging a husband with the violent crime of rape can be more disruptive than the violent act itself.” (Weishaupt v. Commonwealth, 315 S.E.2^nd 847 (Va. 1984).)

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. This is a patently unsupportable point, given the percentage of wives who have experienced the crime,
• The lack of a wife’s consent is too hard to prove because the spouses would have had consensual sex numerous times.
• 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.
• A husband should be able to have sex with his wife without fear of prosecution (which sounds a lot like the historic “husband’s right to sex” justification), and
• Protecting the husband from false accusations of rape (for example, during divorce proceedings).

The one characteristic that all five of these justifications share is sexism, because all of them turn on a disbelief or discounting of the wife’s side of the equation and a promotion of the husband’s side over hers. In that sense, the “modern” justifications for a marital rape exception sound a lot like the historic justifications and are equally flawed. 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.

Belated Revocation of Marital Rape Exceptions

The women’s movement of the 1970’s led to changes in the law. In 1976, Nebraska 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. Jurors may doubt that a husband actually raped his own wife, and the spouse-victim’s testimony is often the only evidence of the 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.

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