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Rape is rape. But in several states, if someone is raped by their spouse rather than a stranger, their wedding ring may make that sexual assault less serious—at least in the eyes of the law.
Under current California law, marital rape may carry a lesser penalty than other types of sexual assault. Someone convicted of marital rape can be eligible for probation rather than imprisonment. They can also evade being registered as a sex offender.
Proponents have long sought to collapse that legal distinction—but once again, their efforts seem to have failed: A pair of bills that aimed to rewrite California law to treat marital rape like, well, rape didn’t even receive a committee hearing.
Cristina Garcia, a state legislator and backer of one of the bills, took that as a clear sign that California doesn’t really believe no means no.
“A marriage license should not allow a spouse to violate the body and dignity of a non-consenting spouse with minimal accountability,” she tweeted Tuesday.
But California is far from the only state to have that kind of law on the books. Although every state recognizes marital rape as a crime, most still have some kind of loophole that downgrades what would be an assault into a lesser crime, or no crime at all, because a victim happens to be married to their attacker. Those loopholes can vary and are based on a number of factors, such as age, the victim’s ability to consent, and the use of force, according to AEquitas, a nonprofit that aims to improve prosecutions of gender-based violence.
In South Carolina, someone who assaults their spouse can’t be charged with “criminal sexual conduct” in the first or second degree, charges that could send someone to prison for multiple decades. Instead, they can be charged with spousal rape, which has a maximum sentence of just 10 years.
And anyone who wants to report their spouse for rape has only 30 days to come forward.
In Virginia, a person accused of marital rape can be ordered to just go to therapy—and avoid imprisonment entirely if a court decides that “such action will promote maintenance of the family unit” and that it’s in the “best interest” of the person who was assaulted.
“There’s still just misogynistic beliefs of what marriage entitles you to,” said Jane Anderson, an attorney adviser at AEquitas. “These laws tend to validate those beliefs on some level—that consent looks different if you’re married, or consent isn’t as necessary if you’re married, or it has to be highly violent for it to really count.”
Prosecutions for raping a spouse are a relatively recent legal invention. Under English common law, a wife literally belonged to her husband, according to Holly Fuhrman, senior associate attorney adviser at AEquitas; it wasn’t possible to sexually assault your property. It’s a concept typically attributed to a man named Sir Matthew Hale, a British 17th-century justice who surmised that a woman’s wedding vows meant she’d given her consent to sex. Forever.
That idea endured in U.S. law for nearly three centuries.
It wasn’t until the 1970s, during a surge of feminist organizing, that states started to recognize the idea of marital rape. By 1993, every state had some sort of law on the books recognizing that marital rape was indeed a crime that could be prosecuted.
“There’s still just misogynistic beliefs of what marriage entitles you to.”
Somewhere from 10 percent to 14 percent of married women are raped by their husbands, according to a 2006 research brief by the National Resource Center on Domestic Violence. “Women who are raped by their husbands are likely to be raped many times—often 20 or more times,” the brief found.
But marital rape, like all sexual assault, is likely wildly underreported. And even the ones that are reported can be more difficult, or potentially impossible, to prosecute.
Nineteen jurisdictions, for instance, distinguish between marital rape and other kinds of assault in cases where a rape victim might be incapacitated (like, say, because they’re drunk, or asleep, or have some kind of disability), according to 2020 research by AEquitas. (These jurisdictions involve U.S. states, territories, federal law, and military law.) In Rhode Island, if a husband rapes his wife while she’s “mentally incapacitated, mentally disabled, or physically helpless,” he is not guilty of first-degree sexual assault—but anybody else could be.
Fuhrman told VICE News that, in most cases, prosecutors will likely still be able to find some way to charge a man who rapes his spouse, regardless of whether a state’s marital rape law has a loophole. But that doesn’t mean that securing a conviction is going to be easy.
“In the context of an intimate partner relationship or a marital relationship, people might not know that they can be raped,” said Fuhrman, adding that marital rape often occurs when one partner is abusive in other ways. “Even if the victim understands that what happened to them was wrong, they may be pressured by the offender not to go forward with a case, or they might intimidate that victim into recanting.”
Efforts to reform these marital rape loopholes have once again ramped up in recent years. In 2019, a Minnesota woman named Jenny Teeson successfully convinced her state’s legislators to close her state’s marital rape loophole. Two years earlier, while divorcing her then-husband, Teeson had discovered a flash drive of videos showing her husband penetrating her with an object while she was drugged and unconscious, according to the Associated Press. Her 4-year-old child was next to her in one of the videos.
Initially charged with third-degree criminal sexual assault against an incapacitated victim, Teeson’s ex-husband eventually pleaded guilty to a gross misdemeanor charge of invading her privacy—because Minnesota had a loophole in its marital rape law. He served just 30 days in county jail.
“We were all dumbfounded,” Teeson recalled to NPR. “The county attorney's office didn't know it, and the judge didn't know that this law existed.”