Monday, April 22, 2013

Spousal Rape

This is a paper I wrote for a class at IUPUI.  The more I researched the topic, the more upset and angry I became.  The paper ran way over the required length because I found all of the information too important to leave out.  Printed out, it's 12 pages long, so settle back for a long read. (By the way, I got a "100" on this paper.)



                               © Debi Brim 2012
Until 1975, a woman enjoyed the right of protection in her own home, except for one particular act of violence.  "And that is rape, where a man forces himself sexually upon a woman whether he is licensed by the marriage law to do it or not.”[1]  For centuries, rape was defined as “nonconsensual intercourse with a woman other than one's wife.[2] (emphasis mine).  With this wording, a husband was given legal permission to force sex upon a woman simply because he was married to her.  She had no right to say no. 

So said a Michigan court in 1981 when Rosanna Hawkins was raped at knifepoint for over an hour by her estranged husband.  Initially sentenced to 27 to 92 years in prison, the Michigan Court of Appeals overturned the conviction by citing “in Michigan it is not a crime for a man to sexually assault his wife unless they are living apart and one has filed for divorce.”[3]  (The court actually said, “not a crime … to sexually assault….)”  Rosanna had had not yet filed the divorce papers because she had recently moved back to Michigan, to live with her sister, and was waiting to fulfill the residency requirement before she would be permitted to file divorce papers.  The law seemed to be a double whammy for Rosanna: Under existing law, she is not protected unless she has filed divorce papers but the law also prevents her from filing divorce papers right away.

            Michigan law also requires the couple be living separately.  This was no comfort to another woman who met the residency requirement, filed for divorce but could not get her husband to move out of the house.  With little income of her own, she was unable to move out with her daughter, “My understanding of the law is that if he should force himself on me now, even though I have filed for divorce, he could not be prosecuted for his assaults.''[4]  Here was a woman who managed to get through the double-whammy laws but was still unprotected under the law because all any husband had to do to avoid being prosecuted for rape was to stay in the home, forcing (through finances or other controlling factors) his victim to live with him.  The law said the couple had to be living separately for her to be protected, but there was no law to force him to comply with the living separate part.

            A Virginia husband’s guilty verdict was overturned by the state’s Supreme Court, who decided the case did not meet the requirements of current law which said a man could be charged with raping his wife “only if she had made it clear ‘beyond a reasonable doubt’ that she wanted to end the marriage.”[5]  The horrific details of the case prompted the Virginia Legislature to pass a bill making it a crime for a man to rape his wife when they are living together.  The husband’s actions in the case were not in dispute.  The trial judge said about the case:

''He kicked in a locked door and knocked out its frame to gain access into the apartment occupied by the wife and infant son. His physical assault and personal violence upon his wife is recited in detail and it occurred without question. Her struggle to the uttermost trying to avoid being ravished by him, but to no avail, is even admitted by the defendant.''[6]

            But the Virginia Supreme Court, in spite of these details, determined the husband had a legal right to force his wife to have sex with him.

            Spousal rape finally became illegal in all 50 states in 1993 when North Carolina became the last state to pass spousal rape laws into effect. North Dakota was the first in 1975.

It wasn’t just the act of rape that shackled a woman’s right to protection under the law.  There were layers of laws based on 17th century English thinking that imprisoned women in relationships and situations from which she had no legal recourse or escape. The laws, the logic, and the traditional thinking that subjected women to these situations were centuries in the making.  A seventeenth century English Chief Justice, Matthew Hale, is credited with the reasoning that granted immunity for a man against raping his wife when he ordained that consent to sex was implied with marriage, known as the “implied consent and contract theory”[7].  He believed “marriage is a contract, under the terms of which a husband has the absolute power to determine the time, place and manner of sexual intercourse. The husband is authorized to enforce the contract unilaterally, by force if he deems necessary.”[8]  The woman did not have to give consent for each sex act since she had given her implied consent for sex upon execution of the marital contract. A husband had a right to sex and it was a woman’s duty to provide it.

With the marital contract came the idea that women became property of men.  Women’s identities were merged in with the husband’s; she and her property became his property. She “lost” her own name and took her husband’s (in some places, as required by law), and the couple became one entity.  The underlying logic of why this made it impossible for a man to rape his wife was that since “husband and wife were one entity, a husband could not be charged with raping his wife, as that would equate to raping himself.[9] (emphasis mine). Since women were considered property, rape was not a crime against a woman (or even against a person) but was considered a crime against the man’s own property.

Believe it or not, supporters of the above arguments … those who believe marital rape should not be a crime ….. have added other arguments to their cause.  It was claimed that marital rape did not occur enough to be considered a serious problem. The counter-argument was that the number of times an offense was committed was not the basis to determine if it should be a crime or not.  Add to that, 1990s data shows that 25% of all U.S. rapes were marital rape, and 14% of all women report they have experienced marital rape at least once, and the argument of “did not occur enough”  immediately becomes null.  
Some have even gone as far as to suggest “the damage to a woman from rape in marriage is less severe than the damage caused to a victim of non-marital rape.”[10]  This theory is also rejected.  Marital rape is a betrayal of trust (the husband is supposed to care for and protect the wife).  What really sets marital rape apart is that the victim has to live with her attacker, and she lives in constant fear that she could be attacked and raped at any time, awake or asleep.  The reality is that “women who are raped by their husbands are likely to be raped many times - often 20 times or more before they are able to end the violence.”[11]

There are those who do not believe a man should be able to be charged with rape of his wife simply for the husband’s protection against false accusations.

 “This "lying woman" justification, premised on the idea that women are vindictive liars, posits that criminalizing marital rape results in women filing false rape charges to gain leverage against their husbands in divorce and custody proceedings. Essentially, it promotes the "stereotype of women as liars, schemers, troublemakers and home breakers who want to ruin innocent men to suit their own vindictive or irrational ends."[12]

 Even if women were willing to run the risk of being labeled a lying troublemaker, her access to the courts was legally blocked under a law that said a wife could not testify against her husband, which meant she could not testify in court to what he did to her.  This law was thrown out in 1980 when the Supreme Court recognized it as medieval law.[13]   A Utah court, in 2009, “noted with concern that the privilege enables abusers to silence their victims.”[14] Add to this the exemptions under any marital rape laws (i.e. divorce papers must be filed; she must show that she really wanted to divorce him; they must be living apart; etc.) and it shows that women were denied legal equality and even access to the court system.

Another barrier set up for women within the legal system was how marital rape and domestic violence cases were burdened with special evidence and procedure rules.  Women had a limited time to report the marital rape, and it was treated differently than non-marital rape.  South Carolina, for example, requires that a victim report marital rape within thirty days; however, the state has no reporting requirements for victims of non-marital rape.”[15]

Women many times were required to prove they fought back, how hard they fought back, provide witnesses to prove whether she screamed or not, and sometimes even had to prove depth of penetration as states had different requirements of depth to determine if a rape had actually taken place.  It has even been suggested by those who are in favor of marital rape exemptions that it is just too hard to prove a lack of consent from the raped wife simply because the couple had had consensual sex many times before. 
This argument goes back to the 19th century when “all-male juries and members of the judiciary often assumed that once a woman had consented to sex, any subsequent sexual activity was consensual.”[16]  Otherwise, once he’s had sex with her one time, then she is his to “take” any time after that, anytime he wants, no matter what she says subsequently. 

What this came down to was a belief that only virgins could be raped.

These ideas have mostly been discarded because "difficulty of proof has never been a proper criterion for deciding what behavior should be officially censured by society."[17]  Conversely, states that have added requirements to prove resistance or have lower sentences for marital rape as opposed to non-marital rape  continue to promote the classical idea that rape in marriage is not as bad as rape outside of marriage and that women who are subject to marital rape are ‘second class victims not worthy of equal protection’.”[18] 

Some states dropped the ‘fight back’ requirement if the woman feared death or bodily injury, however, “rape itself has not been found to be serious bodily injury. “  An example of how this ended up working was in New York when a woman “fiercely resisted her known attacker who knocked down the bathroom door and raped her twice. The prosecutor in the county was reluctant to file rape charges against the attacker because the victim did not fear death or bodily injury other than rape.”(emphasis mine)[19]

The position of black women was even worse.  Black women were thought of as sexually uncontrolled.  White Southerners laid claim to the idea that descendants of slaves “lacked the virtue to exercise the right of citizens” and therefore “black women could not be raped.”[20]  Even when the attempt to pass a law to raise the age of consent from 10 to 14-18, opposition stood against it with the idea that female children should be able to protect themselves against assault:

“I regard the twelve-year-old girl as being as capable of resisting the wiles of the seducer as any older woman,” one Kentucky legislator wrote in 1895. Statutory rape reform lagged in the South in part because legislators explicitly feared that it “would enable negro girls to sue white men” and thus put the “negro female on the same plane with the white female.”[21]

With all of these against them, the one barrier that couldn’t be legislated against was the attitude of law enforcement, from police to judges, who “routinely regarded crimes against women as less serious than comparable crimes against men and treated female victims with suspicion and disdain.”[22]  Even those in position as high up as the Justice Department voiced their objections to women’s equality under the law.   As recently as 1994, while the Violence Against Women Act (VAWA) was going through Congress, Bruce Fein (a former Justice Department official under President Reagan) testified that the VAWA would impede a state's choice not to make marital rape a crime. He believed the states’ decision to criminalize marital rape as one that is "peculiarly local and responsive to local customs." [23]

Even when the woman has a legal document of protection (restraining order), the courts and law enforcement have used “discretion” to not uphold the order. 

The case of Gonzales vs. Town of Castle Rock is the story of a woman who called police because her estranged husband had taken their three children from her front yard, despite a restraining order.  After seeing the restraining order presenting by Mrs. Gonzales, the officers chose to do nothing.  The husband killed the three little girls.  The Supreme Court found “the respondent did not have a property interest in police enforcement of the restraining order against her husband, and thus, the officers' failure to enforce the restraining order did not violate the Due Process Clause” and went on to add that it “is hard to imagine that a Colorado peace officer would not have some discretion” in whether the circumstances merit whether the restraining order should be enforced or not.[24] 
The woman, who had followed the law and obtained a legal document to protect her and her children, a document issued by a judge after review of her reasoning and evidence, was still not protected by law enforcement when two street officers arbitrarily decided that she was not to be taken seriously in a “family matter” and it resulted in the murder of her children. 

Law enforcement is not the only attitude that needs enlightened.  Women, themselves, fail to see rape inside a marriage as a crime. “In 2002, many US women still believe sex within marriage is an obligation -and define forced sex by their spouse as a ‘wifely duty’ – and that ‘real’ rape only occurs when the attacker is a stranger.”[25]

The social impact of marital rape extends outside of the bedroom.  Battered women and their children represent almost 50% of the nation’s homeless.  In addition, 50% of rape victims are fired or quit their jobs after the crime due to absenteeism, harassment on the job by the rapist husband, and other stressors that affect her ability to do her job and advance in her career. “Thus, violence is a tool for maintaining women's economic inferiority to, and dependency on, men.” [26]

While non-stranger rape has been brought to the forefront of social discussion (i.e. date rape and acquaintance rape), marital rape has yet to make the hurdle.  It still remains a distant cousin, sitting in the shadows, afraid to come out in the limelight.   The increased conversation, however slight, has brought about legal changes such as the mandatory arrest policy.  Critics have argued this is a band-aid, a quick response fix that requires police officers to arrest someone but fails to address why police were previously using their discretion to not arrest someone before; why and how their non-actions implied that domestic violence and marital rape was a family matter, was acceptable behavior, and/or was the woman’s fault, and, in the case of Mrs. Gonzales, why street officers could take it upon themselves to disregard an order of restraint that had been issued by a court judge.[27]

What are the factors that get legislation passed that is in favor to women?   One might assume that if a state has more women in its legislature, then passage of bills that were pro-women would be more forthcoming, however, research has found this not to be true.  Men and women in legislation are more likely to support and pass protection bills on the behalf of women when there is an increase in women in the state’s labor force. 
Another assumption would be the state’s record of marital rape bill passage. Again, the research is contrary to the assumption.  States that passed weaker “foot in the door” bills were found to be legislatures that were hesitant to take on harder and more complete or complex bills on marital rape down the road. 
It has been suggested “that social movement activists may in fact be more successful in reaching their ultimate goal when they advocate for sweeping change.”[28]  In fact, it has been found that making smaller changes is a “resistance strategy” on the part of states that could thwart getting tougher laws passed down the road; that “the adoption of weaker laws does not indicate that the legislative environment is becoming more favorable to the adoption of the stronger law. Instead, the adoption of weaker versions of a proposed law indicates that the legislators are passing weaker laws in lieu of stronger legislation.[29]

Progress has been made in the arena of marital rape protections but women are still unprotected in many states.  Consider these conflicting messages being sent to women:

·         Marital rape is illegal if divorce papers have been filed but a woman who flees to another state to live with relatives for her safety is unable to immediately file those papers that will put her in protective status. 

·         Marital rape is illegal if papers have been filed and the couple is living apart, but there is no law to force the husband to move out of the house after papers have been filed, leaving the woman unprotected under the law. 

·         Marital rape is illegal under any circumstances but the woman must report it within a limited time period as compared to non-marital rape that may not have a limited time period.  Marital rape is illegal but the sentences for the crime are lesser than those for non-marital rape. 

·         Marital rape is illegal but only if the woman can meet the higher standard of proving she fought, she screamed and that she feared death or bodily injury …. and oh by the way, ‘rape’ is not considered bodily injury. 

·         Fear of attack or rape from a husband can enable a woman to get a restraining order that may or may not be enforced by law enforcement’s “discretion” on whether they believe the woman or if the officers think it is a serious situation.

These conflicting messages tell women … wives ….. that they don’t matter as much as property or non-married women.  The placating laws sound good on paper but are just a pat on the head as far as equal legal protection goes.  We may have come a long way, baby, but in front of us still looms a long distance yet to travel.

[1] Voltairine de Cleyre: Sexual Slavery and Sexual Pleasure in the Nineteenth Century, Catherine Helen Palczewski, NWSA Journal , Vol. 7, No. 3 (Autumn, 1995), pp. 54-68. Published by: The Johns Hopkins University Press.  Article Stable URL:, page 68
[2] West, Robin. “Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment”. Georgetown Law, The Scholarly Commons. 1990.   Accessed 2012-10-10. page 65
[3] Barden , J.C., Marital Rape: Drive for Tougher Laws is Pressed, New York Times, May 13, 1987. Accessed 10-10-12.
[4] ibid
[5] Ibid
[6] Ibid 

[7] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.

[8] Conway, M. Margaret/Ahern, David W/Gteuernagel, Gertrude A.; Women and Public Policy, a Revolution in Progress; CQ Press, Wash D.C., 2005. Page 150
[9] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[10] Ibid 
[11] U.S. History of Marital Rape. Crisis Connection (dot) com.  Accessed 10-10-12.
[12] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[13] Conway, M. Margaret/Ahern, David W/Gteuernagel, Gertrude A.; Women and Public Policy, a Revolution in Progress; CQ Press, Wash D.C., 2005. Page 150
[14] Module X: Marital Privilege and Confidentiality of Victim Records. National Judicial Education Program.  Accessed 10-12-12
[15] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[16] Freedman, Estelle B., Women’s Long Battle to Define Rape. Washington Post Opinion. Published Aug 24, 2012.  Accessed 10-10-12.
[17] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[18] Ibid
[19] Daane, Diane. Rape Law Reform: How Far Have We Come? The Prison Journal / Sage Publications 1988.    Accessed 10-12-12
[20] Freedman, Estelle B., Women’s Long Battle to Define Rape. Washington Post Opinion. Published Aug 24, 2012.  Accessed 10-10-12.
[21] Freedman, Estelle B., Women’s Long Battle to Define Rape. Washington Post Opinion. Published Aug 24, 2012.  Accessed 10-10-12.
[22] Goldfarb, Sally F., The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism, 71 Fordham L. Rev. 57 (2002). Available at:  Accessed 10-12-12.
[23] Ibid
[24] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[25] Panos London; Illuminating Voices. “Marital Rape outlawed by Napal’s Supreme court”. Oct 2002. Accessed 10-10-12.
[26] Goldfarb, Sally F., The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism, 71 Fordham L. Rev. 57 (2002). Available at:  Accessed 10-12-12.
[27] The Free Library by Farlex. “A striking disconnect: marital rape law's failure to keep up with domestic violence law.”'s+failure+to+keep+up+with...-a0295551332   Accessed 10-10-12.
[28] Howard, Warner, Renzulli.  Criminalizing Spousal Rape: The Diffusion of Legal Reforms. Portland State University (dot com).  U.S. History of Marital Rape. Crisis Connection (dot) com.  2009. Sociological Perspectives, Vol. 52, Issue 4, pp. 505–531, ISSN 0731-1214, electronic ISSN 1533-8673. page 520, 521   . Accessed 10-10-12.  
[29] Ibid.  


Monday, February 18, 2013

Alice Kramden: The First True TV Feminist

This is an article I wrote after taking a college class of "America in the 1950s". I noticed that Alice Kramden wasn't the stereotypical 1950s housewife and decided to write/organize my thoughts on this unsung feminist.  This was not a class assignment paper. Its what I do for fun!!

by Debi Brim

Elizabeth Cady Stanton, Susan B. Anthony, and Gloria Steinem are famous and well-known names in the suffrage and women’s movements.  I offer one more that should be on the list: Alice Kramden, the first true feminist.

Alice Kramden is the fictional character who played opposite of Jackie Gleason’s character, Ralph Kramden, in the 1950s sitcom “The Honeymooners”.   In an era when television women were docile housewives, looking to their husbands for advice and problem solving, Alice was an exception to the stereotype.

In a “Father Knows Best” episode (“The Mink Coat”), Jim lines the family up on the couch (including his wife) to lecture them on household expenses.  In this typical 1950s sitcom, the male head of household is controlling the budget, the money, and lecturing the family on their overspending.

Compare this to “The Honeymooners” episode “Funny Money.”  Ralph has to ask Alice for money because he is short “a couple of bucks” for his lodge membership dues.  With hands on her hips, Alice replies, “I’m not giving you a dime, Ralph.”  She reminds him that lodge dues are supposed to come out of his allowance.  Ralph stomps his foot and “demands” the money.  Alice still refuses.  Alice not only controls the budget and the checkbook, she has the nerve to stand up to her husband and tell him “no”.
See this clip:  The scene starts at marker 6:30 through 7:55.

In another Honeymooners episode (“Brother Ralph”), Ralph is laid-off from the bus company.  Alice decides she will get a job. Ralph protests, “While you are my wife, you will never work!” Alice’s reply is “I’m getting a job no matter what you say!” With her face inches from her husband’s she closes the argument with “I’m getting a job and you’re doing the housework!”  She gets a job in an office and Ralph is the house-husband for a few weeks.

Who is this woman?  She controls the money and the budget. The husband is forced to ask her for money because he already spent all of his “allowance”.  A 1950s man put on a budget?  I never saw June Cleaver reminding Ward that he was only allowed so much money a month!   Alice stands nose to nose with the man of the house, defying his “rules.”  To top it off, this woman also has her husband do the housework, something that is strictly a woman’s job.

She was a woman who bucked the stereotypical system.  She made decisions, handled the money, got a job, and had an equal (sometimes more than an equal) say in what went on in her home.

Had Alice been in charge of NASA, we probably would have gone “to the moon, Alice!” sooner than we actually did.




© D. Brim / Dec 2011