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Law and Crime

Marital Rape Is Criminalized But Not Upheld

Legal loopholes protect the rapist in these cases.

Key points

  • Marital rape was criminalized in 1993. Yet, legal loopholes in many states fail to hold the rapist responsible.
  • The legal loopholes downgrade the sexual assault to a lesser crime or none at all if the victim is married to their attacker.
  • State legislators must be pressured to update rape laws to include marital rape rather than considering marital rape a different crime.
Photo by kat wilcox from Pexels
Source: Photo by kat wilcox from Pexels

Marital rape is more prevalent than we know even though it has been criminalized by every state since 1993, owing to the on-going efforts of women’s rights groups. However, in many states, there are legal loopholes pertaining to sexual assault laws that leave married women unprotected from forcible rape by their spouse.

One such loophole is a woman raped by her spouse while incapacitated or drugged. In this case, the spouse committing the rape will have legal exemption in 17 states. Stronger laws and closing legal loopholes in all states are vital to protecting women and their basic human rights.

History of Marital Rape

Marital rape is the act of sexual intercourse with one’s spouse without their consent. Historically and for centuries, sexual intercourse within a marriage was regarded the male’s spousal right with their wife who was perceived as a possession. Currently, marital rape is more widely seen as an act of sexual violence.

Marital Rape Statistics

Keep in mind that marital rape, a type of intimate partner abuse, is not about sex but rather power and control. The National Coalition Against Domestic Violence (NCADV) provides data:

  • Between 14% and 25% of women are sexually assaulted by intimate partners (spouse or boyfriend) during their relationship.
  • Between 10 and 14% of married women will experience rape by their intimate partner.
  • If you’re in an abusive relationship, 40% to 45% will be sexually assaulted during the course of the relationship.
  • According to one study, rape by a marital partner has been four times more common than by rapes by strangers.
  • 18% (almost one in five) of female marital rape survivors reported that their children witnessed the assault.
  • Marital and intimate partner rapes are under-reported–only 36% of all rape victims ever report the crime to police, and the percentage of married women who report a spousal rape is even lower.

According to the findings of a 2006 research brief by the National Resource Center on Domestic Violence (NRCDV), women who are raped by their spouse are likely to be raped many times. Women have cited being raped 20 or more times. It’s a myth that marital rape is less serious than other forms of sexual violence.

Rape is considered to cause many serious physical and emotional consequences for the survivor (NRCDV). Marital rape occurs in the context of an intimate relationship with a partner who’s expected to be caring yet is traumatically violent and can be seen by the victim as too dangerous to report on.

Closing the Legal Loopholes of Marital Rape

A particular marital rape case in Minnesota that took place in 2017 led to no conviction, a result that highlighted the legal loophole that provided exemption to the raping spouse since it occurred when his wife was incapacitated by drugs.

In this case, the survivor at the time of her divorce discovered on their shared laptop videos of her husband raping her while she was unconscious and drugged by her husband who had given her sleeping medication. Although her husband was initially charged with a felony, charges were dropped the same day.

The legal loophole in Minnesota’s law at the time for raping an incapacitated spouse stated that the rape was not illegal if the partners were married or cohabitating at the time the rape took place (Valencia, 2021). This survivor working with local legislatures in Minnesota met with success in closing this legal loophole in 2019. Before the loophole was addressed, this survivor’s husband pleaded guilty to invading her privacy–a gross misdemeanor charge­–and served 30 days in a county jail.

According to AEquitas, a nonprofit that aims to improve prosecutions of gender-based violence, every state recognizes marital rape as a crime, yet most still have some kind of loophole that downgrades this assault into a lesser crime, or no crime at all, because a victim happens to be married to their attacker. Those loopholes can vary and are based on a number of factors, such as age, the victim’s ability to consent, and the use of force.

According to AEquitas, some examples of existing state practices:

  • California: Someone convicted of marital rape gets probation rather than imprisonment.
  • Virginia: A man accused of marital rape can be ordered to therapy and avoid imprisonment.
  • South Carolina: A partner who rapes can receive a lesser penalty of 10 years rather than “criminal sexual conduct” in the first or second degree which sends the offender to prison for decades.
  • Rhode Island: If a spouse rapes his wife while she’s mentally incapacitated, mentally disabled, or physically helpless,” he is not guilty of first-degree sexual assault like anyone else could be.

Other states with the same legal loophole as Minnesota, i.e. legal exemption for rape if the survivor is incapacitated or drugged, are Alabama, Alaska, Connecticut, Idaho, Iowa, Kentucky, Maryland, Michigan, Mississippi, New Hampshire, New York, Ohio, Oklahoma, Rhode Island, South Carolina, Washington and Wyoming.

Attempts to change state laws often meet with resistance. For example, recent attempts to repeal marital rape exemptions in Ohio, Maryland and Michigan failed. New bills have been introduced this year. In Maryland, the pending bill is coming up against strong opposition from Republican lawmakers. (Valencia, 2021)

Clearly, there’s a lot more work to be done to change existing marital rape laws and to close legal loopholes to protect married women. One suggestion from the NCADV is to demand that state legislators update rape laws to include marital rape rather than considering marital rape a different crime.



Valencia, M. 2021. "Marital Rape Is Still Legal." On-line: Women Talk

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