In the United States, marital rape refers to the unlawful and collective forms of partner rape, domestic violence, and/or sexual abuse by a marital spouse onto another and is illegal in all 50 US states. The exact causes of offense vary by state, however, and if the unlawful act is another form of sexual assault.
Prior to the 1970s, marital rape was legal in every US state and only first became partially outlawed in Michigan and Delaware in 1974, then wholly outlawed in South Dakota and Nebraska in 1975. The court case Oregon v. Rideout in 1978 was the first in which someone stood trial for raping their spouse while they lived together.
By 1993, marital rape was a crime nationwide. Still, in the 1990s, most states continued to differentiate between the way marital rape and non-marital rape were viewed and treated. The laws surrounding marital rape in the US continue to change and evolve, with most states reforming their laws far into the 21st century. However, there are still states where marital rape and non-marital rape are treated quite differently under the law with the definition of what is "marital rape" or non-marital rape being disputed in some states.
History
Background The views which contributed to rape laws not being applicable in marriage can be traced, at least partially, to 17th century English common law, which was imported to the British American colonies. The 17th-century English jurist, Sir Matthew Hale (1609–1676), stated the position of the common law in The History of the Pleas of the Crown (posthumously, 1736) that a "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 to her husband which she cannot retract". The ruling, although no legal record of which is found earlier than Hale, likely relied on even earlier standards. In a case of Lord Audley's (1488–1544), for instance, he cites the jurist Bracton (c.1210 – c.1268) in support of this rule, said to be derived from laws of King Æthelstan (r. 927–939) whereupon the law holds that even "were the party of no chaste life, but a whore, yet there may be ravishment: but it is a good plea to say she was his concubine".Geis, Gilbert (1978), "Rape in Marriage: Law and Law Reform in England, the United States, and Sweden", Adelaide Law Review, 6(2):285. This would continue to be accepted as a statement of the law in England and Wales until it was overturned by the House of Lords in the case of R v R in 1991,R v R 1 AC 599. where it was described as an anachronistic and offensive legal fiction.
1970s: change begins
In the United States, prior to the mid-1970s marital rape was exempted from ordinary rape laws. The exemption is also found in the 1962 Model Penal Code, which stated that "A male who has sexual intercourse with a female not his wife is guilty of rape if: ..."
Michigan and Delaware reduced their legal tolerance of marital rape in 1974 but did not entirely eliminate the spousal exception in their rape laws. Michigan criminalized marital rape only when a couple had filed for divorce and were living apart. Delaware criminalized rape of a "voluntary social companion," which could include a wife; this crime was treated less seriously than other forms of rape.
South Dakota totally outlawed marital rape from 1975 to 1977. A bill introduced by Senator Grace Mickelson quietly struck the spousal exemption from state law. The exception was restored not long afterward. According to The New York Times, South Dakota was the first state to outlaw marital rape.
Nebraska also eliminated the spousal exemption in 1975. The state modernized its law to use the term "sexual assault" rather than "rape", and to be gender neutral, rather than to assume a male perpetrator and female victim. The change in law was the result of advocacy by second wave feminist organizations and victim advocacy groups in Nebraska, and was introduced to the legislature by Senator Wally Barnett.
Some laws of the 1970s required the husband and wife to no longer be living together for marital rape charges to be brought. The case in the United States that first challenged this cohabitation clause was Oregon v. Rideout in 1978. In this case, the husband was accused of raping his wife, the first man in the United States to be charged with raping his wife while they were still living together. The trial was the first in Oregon relating to marital rape since the state revised its rape law in 1977 to eliminate the marital rape exception. Although the husband was acquitted of raping his wife, it spurred the reform movement, with many American states beginning to allow prosecution for marital and cohabitation rape.
Laws change in all states by 1993
In some states, courts have struck down the marital exemption as unconstitutional. In the 1984 New York Court of Appeals case of People v. Liberta, Judge Sol Wachtler stated that "a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman". Similarly, in Alabama, the marital exemptions from the sodomy law (Williams v. State (1986)) and from the rape law (Merton v. State (1986)Merton v. State 500 So.2d 1301 (1986)) were found unconstitutional.
By 1993, all states had withdrawn the marital rape exemptions, the last states to do so being Oklahoma and North Carolina (both in 1993) or the exemption had been declared judicially to be unconstitutional.
Though laws had changed in every state by 1993, in only 17 states was marital rape treated the same as non-marital rape. In the other states, there continued to be significant differences in the way marital rape and non-marital rape were treated, such as less severe penalties, or excluding situations where no violence is used, or shorter reporting periods.Bergen, Raquel Kennedy, "Marital Rape" , Applied Research Forum, National Electronic Network on Violence Against Women, March 1999. Retrieved February 8, 2005.Russell, Diana E. H., Rape in Marriage, Macmillan, 1990.
Toward uniform treatment
During the 1990s many states differentiated between three categories of victims:
Unmarried persons, who had full protection by sexual offenses laws, Married persons who were in an abnormal marriage (e.g. separated, one spouse had filed for divorce etc.), who were often treated in an intermediate way, although many states treated them either as unmarried persons or as married cohabiting persons, and Married persons cohabiting (spouses living together under ordinary circumstances), many state laws were initially very restrictive, criminalizing only the "worst" forms of domestic sexual violence (e.g. requiring violence, a higher level of threat, injury etc.; and often punishing the crime less severely).
In the 1990s and beyond, feminists, women's and other organizations continued to lobby for the amendment of marital rape laws to ensure marital rape is regarded and treated like any other rape. Though rape laws in the United States are not uniform, and the laws have been changed numerous times, differences remain in some states.
South Carolina, for example, remains the only state where the force or violence used or threatened must be of a higher level (force or violence must be of a "high and aggravated nature" – see section below Current State laws).
A similar law existed in Tennessee until 2005, when it was repealed. The law stated that a person could be guilty of the rape of a spouse at a time they are living together only if that person either "was armed with a weapon or any article used or fashioned in a manner to lead the alleged victim to reasonably believe it to be a weapon" or "caused serious bodily injury to the alleged victim". This meant that, in practice, most cases of marital rape could not be prosecuted, since few rapes involve such extreme circumstances. The law was finally repealed in 2005, allowing for marital rape to be treated like any other type of rape. The bill to repeal the old law was introduced more than ten times before it succeeded.
Until 2013, Washington had an exemption preventing a spouse from being prosecuted with third-degree-rape against the other spouse. Washington removed its exemptions for first-degree rape and second-degree rape in 1983, but the exemption for third-degree rape was removed 30 years later.
Until July 2019, in Minnesota sexual violence occurring between spouses at the time they cohabit or between unmarried partners could be prosecuted only if there was force or threat thereof, due to exemptions created by Article 609.349 'Voluntary relationships' which stipulated that certain sexual offenses do not apply to spouses (unless they are separated), and neither do they apply to unmarried cohabitants. These are offenses that deal with situations where the lack of consent is due to the incapacity of consent of the victim, including where the victim was drugged by the perpetrator. These situations, which were excluded from prosecution, are where the victim was "mentally impaired, mentally incapacitated, or physically helpless". The term "mentally incapacitated" is defined as a person who "under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration" (see Article 609.341 for definitions). In 2019, these exemptions were repealed.
A 2003 study found that "twenty-four states and the District of Columbia have abolished marital immunity for sexual offenses ... twenty-six states retain marital immunity in one form or another". Since 2003, several states have reformed their laws (see above).
Current status Some states continue to treat marital and non-marital rape differently:
California In California, marital rape was recognized as a crime by Section 262 of California's Penal Code in 1979. However, there are separate criminal offenses for non-spousal rape (Section 261) and for spousal rape (Section 262); the latter was treated as a less serious crime until the enactment of 2021 California Assembly Bill 1171. Prior to the enactment of that bill, sexual intercourse with one's spouse without their consent was not recognized as a crime. Section 262 required that, if spouse A did not want to have sex, they needed to resist the forceful sexual advances of spouse B, unless A was "prevented from resisting by any controlled substance", or "incapable of resisting" because A was unconscious or asleep, unaware of the sexual act occurring, or deceived by "the perpetrator's fraud in fact", in which cases the sexual act would have amounted to rape.
Having sex with someone other than one's spouse without their consent was recognized as a different crime. However, Section 261 indicated that this only applied if the victim was "incapable [of giving legal consent] because of a mental disorder or developmental or physical disability". Otherwise, the victim was required to resist the forceful sexual advances of the perpetrator, unless the victim was "prevented from resisting by any controlled substance", or "incapable of resisting" because A was unconscious or asleep, unaware of the sexual act occurring, or deceived by "the perpetrator's fraud in fact" or "the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose", in which cases the sexual act would have amounted to rape.