Until as recently as the 1970’s, nearly every state in the country did not consider raping your spouse a crime. Indeed, rape laws commonly included a "spousal rape exception" that forbid prosecution of a rape if the victim was married to the attacker. Times have changed since then, luckily, and marital rape has become a crime in all 50 states and Washington D.C.
However, the laws are not equal in every state, and there are many that still pose restrictions on marital rape claims. While spousal rape is now considered a crime, victims often have to overcome additional legal hurdles to prosecution not present for other victims of rape.
What Are the Current Protections Against Marital Rape?
The criminalization of marital rape occurred in each state in one of three ways.
1. Spousal Rape Exception Removed: The Neutral Approach
The majority of states took the simplest approach, and just removed the marital rape exception from the books. This allows marital rape to be prosecuted like any other rape, regardless of the relationship of the victim and aggressor. However, although the laws themselves may have been made technically neutral regarding the issue, there is still much discretion left to prosecutors and judges, who may or may not see marital rape as a crime.
2. Explicitly Removing Marriage as a Defense: The Proactive Approach
A more direct means of clarifying the law can be found in several states, including Washington D.C. Here, aside from simply removing the exception from legislation, the law explicitly references that marriage is NOT a defense to any charges of rape or sexual assault, and addresses the societal presumption that perhaps rape cannot occur in a marriage (a presumption that is not addressed in the previous "neutral" approach).
3. Making Marital Rape a New Crime: The Separation Approach
In the seven remaining states, legislators responded to the problem by creating a separate crime for marital rape. However, in nearly every state, the penalties for spousal rape are generally less than those for "normal" rape, often much less. In California, for instance, while the punishments for rape and marital rape are parallel in almost every way, someone convicted of normal rape committed "by means of of force, violence, duress, menace, or fear of immediate and unlawful bodily injury" may not be sentenced to probation or suspended sentence. That provision was deliberately left out of the spousal rape law, meaning someone committing marital rape by those same means IS eligible for probation.
Some states are even more blatant in the discrepancies between the two laws. West Virginia’s laws allow for a punishment of only 2 – 10 years for marital rape, as opposed to the 10 – 35 year sentence given for a rape conducted under identical circumstances (except for a lack of marriage).
Are There Any Other Barriers to Prosecuting Martial Rape?
Indeed there are. The most common one is a reporting requirement that is much shorter than those of normal rape. While the ranges vary from state to state, the usual reporting limit is between 30 days to 1 year (as opposed to up to 3 years for non-marital rapes).
Another difference is the use of the old "threat of force" rule, as many states require that force or threats be used to forcibly coerce the victim for it to be considered marital rape (where as most normal rape laws simply require a lack of consent).
Also remember that the marital rape laws only cover actual rape (i.e. penetration). Many states refuse to recognize any other form of sexual assault if the victim is married to the attacker, or even prosecute the use of drugs to incapacitate the victim.
Do I Need an Attorney?
If you have been sexually assaulted by your spouse, you should contact a family lawyer immediately to find out about the protections your state offers to people in your situation. It is important you do this as soon as possible, since the reporting time is extremely short in some states. A lawyer near you will be able to fully explain what rights your state law gives you.