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SPOUSAL RAPE
© 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]
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.
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]
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: http://www.jstor.org/stable/4316402, page 68
[2] West, Robin. “Equality
Theory, Marital Rape, and the Promise of the Fourteenth Amendment”. Georgetown
Law, The Scholarly Commons. 1990. http://scholarship.law.georgetown.edu/ 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. http://www.nytimes.com/1987/05/13/us/marital-rape-drive-for-tougher-laws-is-pressed.html?pagewanted=all&src=pm
[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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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. http://www.crisisconnectioninc.org/pdf/US_History_of_Marital_Rape.pdf
[12] The Free Library by Farlex. “A striking disconnect:
marital rape law's failure to keep up with domestic violence law.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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. http://www.njep-ipsacourse.org/MaritalPrivilege/SpousalImmunity.php 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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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. http://www.sagepub.com/lippmanccl2e/study/articles/Daane.pdf 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: http://ir.lawnet.fordham.edu/flr/vol71/iss1/2 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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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. http://panos.org.uk/features/marital-rape-outlawed-by-nepals-supreme-court/ 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: http://ir.lawnet.fordham.edu/flr/vol71/iss1/2 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.” http://www.thefreelibrary.com/A+striking+disconnect%3A+marital+rape+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 http://web.pdx.edu/~matg/Sociology/Gender_&_Sexualities_files/Criminalizing%20Spousal%20Rape.pdf . Accessed 10-10-12.
