The Bizarre Legal Loopholes Surrounding Spousal Rape
Many states still have archaic laws that allow for spousal rape.
Posted May 15, 2020
As the nation shelters at home, significant upticks in domestic violence have received widespread attention. With this scourge on the rise, the insidiously related problem of spousal rape shouldn't go overlooked.
The Legality of Spousal Rape
Until 1975, every state in the nation considered a husband’s rape of his wife an exception to its rape laws. Legal codes of the time either defined rape as a man having non-consensual sexual intercourse with a “woman not his wife” or defined the victim of the offense to exclude the wife of the actor.  Slowly, states began to repeal these exceptions, with Oklahoma and North Carolina being the last to do, both in 1993. (For context, 1993 was the year that Beanie Babies first became a national sensation.) Today, the law of spousal rape is nuanced. Although it is now technically illegal in every state for one spouse to rape the other, vestiges of the spousal rape exception still permeate into many states’ laws.
In 2017, a woman from Minnesota was in the middle of a divorce when she found a flash drive containing videos taken by her husband. The videos depicted him having sex with her and penetrating her with objects as she lay non-responsive on their bed. Unknown to her at the time, her husband had been drugging her and sexually assaulting her while she was incapacitated. The woman handed the videos over to the police and her husband was charged with criminal sexual conduct in the third degree, which prohibits sexual acts with someone who is incapacitated. But, surprising even the judge and district attorney, a statutory loophole existed that shielded the husband from criminal liability for those exact actions. The charge was dropped within hours of being filed.
The loophole in Minnesota was ultimately repealed in 2019, largely due to the persistent activism of the woman described above. Nevertheless, many state penal codes still include loopholes and other archaic constraints that stifle the prosecution of spousal rape. For example, in Connecticut, Idaho, Iowa, Maryland, Michigan, Mississippi, Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Carolina, and Washington, spousal rape laws either explicitly require the use of force, or provide immunity if one spouse is incapacitated.  These laws have the practical effect of allowing for spousal rape when the victim is drugged, unconscious, or otherwise unable to consent.
South Carolina has arguably the most extreme law, imposing criminal liability for spousal rape only if the act involves a weapon or highly aggravated violence. Victims of spousal rape in South Carolina have only 30 days to report the incident to authorities, and the maximum sentence for the offense is 10 years (whereas rape of a non-spouse carries a maximum sentence of 30 years).
Several other states have statutes that result in spousal rape being treated much differently than the rape of non-spouses. For example, in Virginia, prison sentences for spousal rape can be suspended entirely if the Court believes that counseling will “promote maintenance of the family unit.”
The History Behind Spousal Rape Exceptions
The rationales behind spousal rape exceptions can be traced back to the proclamations of the famed seventeenth-century jurist, Sir Matthew Hale:
“For the 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 unto her husband which she cannot retract.” —M. Hale, Pleas of the Crown 629 (1847)
Under traditional English common law, women were viewed as merely the property of their husbands and the “contract” of marriage included the wife’s irrevocable consent to sexual relations. But even as the law in the United States matured into the 20th century, spousal rape exceptions persisted. More contemporary justifications focused on the alleged difficulty of proving lack of consent during a marriage and the notion that the government should afford privacy to the marital relationship. The latter view was premised upon the Supreme Court’s ruling in Griswold v. Connecticut, 381 U.S. 479 (1965), which suggested that the Constitution affords a right to marital privacy. Others pointed to the related idea that the government has an interest in promoting marital harmony and encouraging the reconciliation of spouses. By pursuing criminal charges against a husband for the rape of his wife, the government was facilitating the separation of spouses, rather than helping them to reconcile.
In the #MeToo era, one might think that perceptions surrounding spousal rape have evolved to become more egalitarian; that prevailing opinions would agree marital status should not affect the criminal consequences of rape. But that is not the case. Legislative attempts to repeal spousal rape loopholes have a mixed record at best. Attempting to follow in the footsteps of Minnesota, Ohio and Maryland recently proposed bills to roll back their spousal rape exceptions. Both failed. During the debates surrounding the Maryland bill, lawmakers questioned whether a spouse might be charged with sexual assault for "smacking the other's behind” and if religious beliefs that married persons inhabit a singular body should preempt criminal liability.
To see that antiquated perceptions of spousal rape are alive and well, one must look no further than to President Donald Trump’s former (and now-disgraced) lawyer, Michael Cohen. In 2015, allegations surfaced that President Donald Trump had raped his ex-wife, Ivana Trump, decades earlier. In response, Cohen was recorded stating, “understand that by the very definition, you can’t rape your spouse.”
The Physical and Psychological Effects of Spousal Rape
Perhaps the relaxed social perceptions and laws surrounding spousal rape are fueled by the belief that it is uncommon. Unfortunately, the data says otherwise. Research shows that approximately 10-14 percent of married women in the United States have been raped by their husbands. The consequences of such rapes are no less dire just because the perpetrator is a spouse. Indeed, women who are raped by their husbands suffer severe and long-lasting physical and mental health problems.
The physical effects of spousal rape often include injuries to vaginal and anal areas. Vaginal and anal tearing, pelvic pain, urinary tract infections, miscarriages, bladder infections, infertility, and the contraction of sexually transmitted diseases are often reported among spousal rape survivors (Campbell & Soeken, 1999).
Other bodily injuries are also common. For example, Campbell and Alford (1989) reported that 50 percent of the spousal rape survivors in their study were kicked, hit, burned, or stabbed while being raped. Many survivors go on to report lacerations, soreness, bruising, torn muscles, and broken bones (Adams, 1993).
Also important is the relationship between spousal rape and unwanted pregnancies. Approximately 17 percent of spousal rape survivors in one study reported experiencing an unwanted pregnancy; and 20 percent of those women went on to experience miscarriages or stillbirths (Campbell & Alford, 1989).
The psychological effects of spousal rape are also severe. Indeed, given that spousal rape survivors are likely to experience multiple assaults, and because they are raped by someone whom they once presumably loved and trusted, it should come as no surprise that these survivors suffer extreme and long-term psychological consequences (e.g., Kilpatrick et al., 1988). Common effects of spousal rape include anxiety, shock, depression, suicidal ideation, disordered sleeping, and PTSD (Stermac et al., 2001). Women raped by their intimate partners are actually more likely to be diagnosed with depression and anxiety than those who are raped by non-partners (Plichta & Falik, 2001). Research has also shown that spousal rape survivors experience more long-lasting psychological effects, with some survivors reporting flashbacks, sexual dysfunction, and emotional pain for several years after the violence (Bennice & Resick, 2003).
Tying it All Together
As COVID-19 confines victimized spouses to the home, it is likely that instances of spousal rape will experience a rise commensurate with increases in overall domestic violence. This should give us pause and provoke a critical examination of the existing legal loopholes surrounding spousal rape. In a perfect world, marriage would embody only the harmony and bliss that we all grew up envisioning for ourselves. But the harsh reality is that some marriages are riddled with emotional abuse and physical violence. In fact, many experts now refer to violent and controlling behaviors in marital relationships as “intimate terrorism.” Perhaps this terminology offers a more apt descriptor for the terror that some spouses experience on an everyday basis. If we widely recognize and condemn the terror of domestic violence, shouldn’t we also denounce the terror implicit in non-consensual sex?
 See e.g., UTAH CODE ANN. § 76-5-402 (1985), ALA. CODE § 13A-6-6O(4) (1977).
 See Conn. Gen. Stat. Ann. § 53a-70b, Idaho Code Ann. § 18-6107, Iowa Code § 709.4, MD Crim Law Code § 3-318 (2018), Mich. Comp. Laws Ann. § 750.520d, Miss. Code Ann. § 97-3-99, NRS 200.373, N.H. Rev. Stat. 632-A:2, Ohio Rev. Code Ann. § 2907.02, Okla. Stat. tit. 21, § 1111(B), R.I. Gen. Laws § 11-37-2, S.C. Code Ann. § 16-3-615, Wash. Rev. Code § 9a.44.050.
Campbell, J. C., & Alford, P. (1989). The dark consequences of marital rape. American Journal of Nursing, 89, 946-949.
Campbell, J. C., & Soeken K. L. (1999). Forced sex and intimate partner violence: Effects on women’s risk and women’s health. Violence Against Women, 5, 1017-1035.
Adams, C. J. (1993). I just raped my wife! What are you going to do about it, pastor? In E. Buchwald, P. R. Fletcher, & M. Roth (Eds.), Transforming a rape culture (pp. 57-86). Minneapolis, MN: Milkweed Editions
Stermac, L., Del Bove, G., & Addison, M. (2001). Violence, injury and presentation patterns in spousal sexual assaults. Violence Against Women, 7(11), 1218- 1233.
Plichta, S. B., & Falik, M. (2001). Prevalence of violence and its implications for women’s health. Women’s Health Issues, 11, 244-258.
Bennnice, J., & Resick, P. (2003). Marital rape: History, research and practice. Trauma, Violence and Abuse, 4, 228-246.