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Marital Rape

Marital rape is a serious form of violence that can have life-shattering effects for its victims. While marital rape has been illegal in every state and the District of Columbia since 1993, it is infrequently prosecuted.

What is Marital Rape?

Marital rape occurs when your spouse forces you to take part in certain sex acts without your consent. It is a form of intimate partner violence, i.e., an abuse of power by which one spouse attempts to establish dominance and control over the other. Research shows that it can be equally, if not more, emotionally and physically traumatizing than rape by a stranger.

While every state has its own laws on the subject, broadly defined, marital rape includes “any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent.” If you have experienced rape by your spouse, you have the right to make a police report. Know that you are not alone and can call the National Sexual Assault Hotline at 800-656-HOPE for help at any hour of the day. You can also visit the National Sexual Assault Online Hotline.

How is Marital Rape Punished?

It was not until the late 1970s that anyone was convicted of raping his spouse in the United States. Before then, criminal codes typically included a “marital rape exemption,” or provision barring prosecution for the rape of one’s spouse. Such laws reflected then popularly held views that only stranger rape constituted “real rape” or that forced sex is a “wifely duty.”

This thinking mirrored the common law presumption, in effect for hundreds of years, that spouses should be exempt from prosecution. It was based in a theory articulated by Matthew Hale, [Chief Justice in England in the 17th century, who] “wrote: “[t]he husband cannot be guilty of 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 unto the husband which she cannot retract.”1

In the 1970s and 1980s, numerous states adopted laws criminalizing marital rape, and by July 1993, it was illegal in every state to rape your spouse. States took these three approaches to criminalizing marital rape:

  • Some states simply abolished the marital rape exemption by striking it from the books. (To illustrate: if the code defined rape as “sexual intercourse with a woman, not your wife, by force and against her will,” the legislature could strike the phrase “not your wife,” thereby abolishing the marital rape exemption). Under this approach, which most states followed, marital rape is treated the same as other forms of rape.
  • Some states explicitly eliminated marriage as a defense to the charge of rape.
  • Some states retained their marital rape exemption in the code, and enacted an additional provision creating a separate offense of marital rape (sometimes with lesser penalties than for other forms of rape).

Despite these changes in state laws, marital rape is still prevalent today; and, like other forms of rape, it remains one of the least reported crimes. Also, it is still regarded by some as a less serious crime than rape committed by a stranger—an attitude reflected in certain states’ laws:

  • Some states have imposed extra reporting requirements on victims, e.g., a shorter deadline (30 days or one year) for reporting the incident;
  • Some states make it harder to prove marital rape than other forms of rape, e.g., by requiring a showing that force or threats were used (when other laws against rape require only a showing of lack of consent). Other states do not criminalize the conduct if the wife is legally unable to consent (e.g., due to a severe disability).

For detailed information on your state’s current requirements, consult your state coalition against sexual assault.

What Special Issues Do Victims Face?

As described by one survivor, the special issues faced by marital rape victims (as distinguished from other rape victims) include:

  • Longer recovery from trauma. Contrary to popular belief, the trauma actually may last longer for the marital rape victim than for the stranger rape victim. Reasons include lack of recognition and ability to share the pain, and the profound sense of a betrayal of trust.
  • Higher likelihood of repeated assaults. Research shows that women who are marital rape victims are more likely to experience repeated assaults than other rape victims; in fact, among battered women, sexual assault may be a routine part of the pattern of the abuse. As noted by one researcher “[w]omen who are raped and battered by their partners experience the violence in various ways—e.g., some are battered during the sexual violence or the rape may follow a physically violent episode where the husband wants to ‘make up’ and forces his wife to have sex against her will.”
  • The married perpetrator is more likely to use “anal and oral rape to humiliate, punish and take ‘full’ ownership of their partners,” say researchers.
  • Pressure to stay with perpetrator. A victim with children who lacks outside employment may be financially dependent on the spouse and feel there is no way to leave the situation, and the victim may face additional pressure from family members or friends to remain with the perpetrator.
  • Negative effects on children in the household. Such children may witness the sexual violence or otherwise be affected by it.2
  • Difficulty identifying what happened as a crime. A victim may find it difficult, for cultural reasons, to define the other spouse’s conduct as rape or identify someone she married and loves as a “rapist.”

Additional Resources


Footnotes
  1. David Finkelhor and Kersti Yllo, License to Rape: Sexual Abuse of Wives at 2, The Free Press, New York (1985).
  2. “Campbell and Alford (1989) found that 5% of the women in their study indicated that their children had been forced by their partners to participate in the sexual violence and 18% of the women indicated that their children had witnessed an incident of marital rape at least once (in Mahoney & Williams, 1998).” Id.

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