Saturday, September 24, 2005

Marital Rape Laws and Their Evolution

As requested by Joe in this post, I am finally posting the research paper I wrote about the Marital Rape Laws (or lack thereof) in most states.

In the criminal justice system, rape has always been considered a crime. Recently, laws involving marital rape have started to surface and evolve. The current laws in place exist with a higher frequency than in previous years. How have these particular laws evolved since their introduction, what are the causes of this evolution, and has their introduction led to stricter enforcement?

Presently in the United States, the rape of a spouse is a punishable crime in every state due to stricter sexual offense codes passed in 1993. However, even though marital rape has been criminalized, there are still at least thirty-three states that grant exemptions to the perpetrators of marital rape in certain cases. This reluctance to prosecute offenders could be linked to the history of marital rape laws within the criminal justice system and within society itself. As far back as the nineteenth century, issues of marital rape were addressed by legislators of the time. Chief Justice Hale of England was reported as writing, “[t]he 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 herself in kind unto the husband which she cannot retract” (Russell 17). This early view of the nonexistence of marital rape was largely based on other marriage laws at the time which legally stated that wives were to be subordinate to their husbands. The idea of subordination of wife to her husband resulted in the first organized women’s movement which met and campaigned in Seneca in 1848. Primarily, they sought for equal status to men in society, however feminists of the time stated that “a woman’s right to self-possession [was] the foundation of her equality” (Hasday 1). The views and ideals sought by the women of this time established a foundation for the beginning of the reformation of marital rape laws, even if it would take almost one hundred and forty years for the definitions to begin to change.

Hale’s view of the impossibility of marital rape was carried into the United States and is easily seen in their initial formation of rape laws where the traditional legal definition of rape is stated as “sexual intercourse with a female not his wife without her consent” (Barshis 383). Laws and statements such as these diminished any claims a woman sought to make if raped by her husband; she was his property according to the law, thereby giving him rights which overrode her own. This idea was first challenged with the beginning of the various women’s and feminist movements of the seventies. To these movements, the idea that being married excluded a woman from being raped was ludicrous. They argued that the exemption of husbands in the case of spousal rape failed to grant equal protection to all women from being raped. With women’s rights being brought to the forefront of the political scene in the seventies, the lack of protection of women with regard to marital rape was finally brought to light. While no major changes were immediately made to the previously standing definitions of rape at the time, continued movements in favor of women’s rights have led to the passage of the current marital rape laws held today.

Throughout the nineteen seventies, as the feminist and women’s movements advanced, several things occurred to further the move of marital rape into an acknowledged form of rape. The first of these was the increasing independence of women at home and in the work place. As many more women became financially secure through their own means, they began to separate from the norm of settling down with a husband simply to be a housewife. This time period also saw a spike in the divorce rate as many women finally felt capable of leaving their husbands to support themselves. The sudden increase in the divorce rate combined with the decline in the economic authority of men led to an undermining of the principle of marital unity (Ryan 956). With rising economic self sufficiency and less reliance on marriage, feminists began to see the country’s rape laws as serving only in the interests males. According to the feminists, the rape laws of the time favored the protection of a male’s sexual right to have female property as opposed to protecting women and their sexual integrity (957). With the increasing independence of women, both in the job market and in societal life, women’s rights groups began calling for an end to the marital rape exemption.

Various methods were used in revising older marital rape laws to bring them up to current standards and attempt to do away with the exemption. Some states simply removed the clause relating to the exemption, while others changed older laws which had made marital rape a lesser crime (if even a crime at all) than rape. In Pennsylvania, one law that made marital rape a lower level offense than spousal rape was repealed and removed any language that suggests the relationship between the victim and the offender was relevant. North Carolina and Washington DC both “amended their laws to specify that marriage [was] not a defense to certain crimes” (NCVC 1). Other states have taken steps to separate marital rape from rape, providing separate definitions and penalties for each. For example, in West Virginia marital rape is defined as sexual penetration or sexual intrusion without consent of the perpetrator's spouse whereupon the perpetrator must use forcible compulsion or a deadly weapon or inflict serious bodily injury upon anyone (1). This law specifically states the qualifications which must be met for a marital rape to occur, however, the penalties for rape and marital rape to occur differ. Both are felonies, but marital rape incurs a two to ten year term of imprisonment while rape carries a heavier ten to thirty-five year term. Differing penalties can also be seen in the California rape laws where “a person who commits non-spousal rape by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury may not be sentenced to probation or suspended sentence” (1). Currently, only seven states classify marital rape separately from rape, yet even in doing this, the lighter sentencing shows that they still fall back on antiquated views of marital rape somehow being less severe than rape.

Though all states currently have marital rape laws in place, many still have not revised exemptions which provide for the lack of accountability on the part of the husband. Many of these exemptions allow the husband to avoid prosecution even if he forcibly rapes his spouse while she is mentally or physically impaired, unconscious, or even asleep. This exemption gives rise to another problem with marital rape laws: even though they have been implemented, are they enforced? In many cases, victims of marital rape are often treated with an air of dismissal by authorities when reporting the crimes against them. A series of interviews conducted by Bergen found that police officers in some cases will not allow the victim to file a complaint against her husband and in some cases will refuse to collect medical evidence. This lack of enforcement by police officers has roots in the societal notion pre-nineteen seventy that there was no way a wife could be raped by her husband. Some existing precincts have taken steps to offer programs which seek to train officers about the realities of marital rape and how to properly question victims. While these measures may help increase police understanding of the existence of marital rape, they do not assure an increase in enforcement. Many police officers hold long-standing sexist or religious beliefs that wives cannot be raped by their husbands and no amount of training or programs can get past these.

Lack of enforcement from police officers is one problem when dealing with marital rape laws, but what about obstacles faced from legislators? While attempting to revise marital rape laws in Maine, one legislator remarked, “Any woman who claims she has been raped by her spouse has not been properly bedded” (1). Attitudes such as this at the level of law making slow the enforcement of new implemented marital rape laws further down into the criminal justice system. If the person at the top of the chain holds to the idea of a woman being unable to refuse her husband, then why are the members of law enforcement under this legislator going to attempt to enforce a law which is passed off more as a joke than something serious. Even with laws in place, if those who implement them lack a strong belief in their enforcement, then the laws truly are ineffective at prosecuting those who commit marital rape.

Another problem faced by law enforcement in understanding marital rape is that making and enforcing relevant laws and policies becomes increasingly difficult because marital rape shares no causal factors in common with domestic violence (Frerichs 2708). Domestic violence is often believed to be a precursor to marital rape, but some cases of marital rape show incidence of previous domestic violence, while others do not. This makes it more difficult for law enforcement officials to find patterns between cases of marital rape and establish a behavior pattern based on offenders. Without a definable pattern of behavior or a common thread between victims and perpetrators, it becomes increasingly difficult for law enforcement officials to determine who the victims are likely to be. It also creates problems when attempting to predict who is likely to offend based simply on a history of domestic abuse. The lack of previous domestic violence can also lead to bias when an accusation of marital rape occurs. A study conducted by Jennifer Langhinrichsen-Rohling found that in cases of reported marital rape where a given history of physical abuse did not exist, participants in the study were more likely to place blame on the victim or minimize the seriousness and severity of the rape (Langhinrichsen-Rohling 945). If this is the attitude facing marital rape victims, is it possible for the criminal justice system to implement unbiased enforcement of marital rape laws?

The sociological implications of the enforcement or non-enforcement of marital rape laws is vast. By granting women the ability to refuse sexual advances from their husbands, it gives women a small degree of power. While being able to report spousal rape may not seem to hold any importance to a society, it actually grants women standing within a marriage as equal and willing participants: something the women’s groups struggled to earn for years. The implementing of stricter marital rape laws also erodes the hold of some extreme conservative views which have been in place since the founding of the country. When these laws are enforced with a degree of regularity, they show a society that a woman has a higher standing in a marriage than in previous decades: she is no longer property; she has marital rights as well. The trends of non-enforcement of these laws hold different sociological implications. By ignoring victims who report marital rape, law-enforcement officials are stepping backwards to the more traditional views handed down through this country. Refusing to prosecute or follow through with charges only serves to make the man feel justified in his actions, knowing that he can get away with marital rape with little or no fear of reaction from law-enforcement officials. Marital rape, in its current form within the written law system has added to and expanded the rights a woman holds within a marriage. Within the acting arm of the law, enforcement of existing rape laws is selective at best. For the most effective stance to be taken against marital rape, programs need to be implemented within law enforcement to effectively investigate and prosecute reports of marital rape. Written laws without a physical body to back them up offer nothing to victims who may need to use them.

Presently, America is drifting back into a more conservative stance. It is possible that this shift could result in an erosion of the progress made with regards to marital rape legislation. Much of the progress made to improve upon older laws was made in the seventies when women’s rights were a top issue, yet current government has taken a more regressive stance in its views on women (with particular regard to their sex lives and procreative abilities). If such a regressive stance against women continues it is possible that marital rape laws could slowly lose what standing they have gained as fewer and fewer law enforcement officials are pressured to take action.

Marital rape laws presently exist in a variety of forms. Some of these forms are strict and leave little to no room for exemption to the offender, while others still have exemptions which hold the potential to allow women to be victimized by their own husbands. The laws that are in place today are largely a result of nearly two hundred years worth of feminist and women’s movements pressuring government to make changes to allow a woman to be more than property to her husband. Though they have been implemented nationwide, the current marital rape laws lack enforcement for a variety of reasons from personal biases to lack of knowledge about dealing with victims.

Barshis, Victoria R Garnier. 1983. “The Question of Marital Rape”. Women’s Studies International Forum. 4: 383-393

Caringella-MacDonald, Susan. 1988. “Parallels and Pitfalls: The Aftermath of Legal Reform for Sexual Assault, Marital Rape, and Domestic Violence Victims.” Journal of Interpersonal Violence. 2:147-189

Daane, Diane M. 1994. “Level of Violence in Marital Rape: Policy Implications”. Society for the Study of Social Problems.

Frerichs-Rebecca-Lynn. “Domestic Violence and Marital Rape: Intra-relationship Correlates of Intimate Partner Abuse.” Dissertation Abstracts International. 63-07A: 2708.

Harman, John D. 1984. “Consent, Harm, and Marital Rape.” Journal of Family Law. 3: 423-443

Hasday, Jill Elaine. 2000. “Contest and Consent: A Legal History of Marital Rape.”

Kirkwood, Mary Kay. 2001. “Marital Rape: A Student Assessment of Rape Laws and the Marital Exemption”. Violence Against Women. 7: 1234-1253.

Langhinrichsen-Rohling, Jennifer. 1998. “Marital Rape: Is the Crime Taken Seriously Without Co-occuring Physical Abuse?” Journal of Family Violence. 4: 433-443.

National Center for Victims of Crime. “Spousal Rape: 20 Years Later” Victim Policy Pipeline. 2004.

Russell, D. E. H. 1990. Rape in marriage. New York: Macmillan Press.

Ryan, Rebecca M. 1995. “The Sex Right: A Legal History of the Marital Rape Exemption”. Law and Social Inquiry. 20: 941-1001.

Withers, Nancy A. “Marital Rape”. North Central Sociological Association. 1988

X, Laura. 1999. “Accomplishing the Impossible: an advocate’s notes from the successful campaign to make marital and date rape a crime in 50 US state and two countries”. Violence Against Women.


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