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Spousal Rape Case Sparks Old Debate
He attacked around midnight, choking her, dragging
her by hair, brutally raping her over and over
again. But as her husband, the violent rapist may
receive only 1 1/2 years imprisonment and, perhaps,
none at all. A stranger could receive 14 years.
Prosecutors in Coconino County, Arizona think the
discrepancy is unconstitutional. Accordingly, they
have ignored the state’s marital rape
exemption and charged the husband in question under
standard rape law. news.yahoo.com/news?tmpl=story&u=/ap/20050208/ap_on_re_us/spousal_rape_3
In doing so, the Prosecutors have entered a
centuries-old debate on whether a husband can rape
a wife.
Spousal or marital rape is usually defined as a
sexual attack by a husband or ex-husband.
(As with past analyses of domestic violence,
current discussions of spousal rape treat women as
victims and men as perpetrators. Although men are
now acknowledged to be DV victims as well, no
statistics exist on whether they are victims of
marital rape.)
Western jurisprudence has a long tradition of
absolving husbands from the possibility of rape.
The first significant discussion in America of
forced sex within marriage as rape and of the need
for a legal remedy may well have been ‘The
Markland Letter,’ which was published in 1887
in a Kansas newspaper.
It read, "About a year ago F------ gave birth to
a baby, and was severely torn by the instruments in
incompetent hands. She has gone through three
operations and all failed…last night when her
husband came down, forced himself into her bed, and
the stitches were torn from her healing flesh,
leaving her in worse condition than ever...."
The Markland letter became nationally notorious
largely because its graphic description of violence
left little doubt that the husband was a rapist
despite the law.
American law caught up with the Markland letter
in 1976. Until then, rape laws throughout the
states included a Marital Rape Exemption. In 1976,
however, www.ojp.usdoj.gov/ovc/ncvrw/1997/histry.htm
Nebraska became the first state to abolish that
exemption.
Today, spousal rape is illegal in every state.
Nevertheless, many retain vestiges of the marital
exemption. For example, the punishment prescribed
for spousal rape is often lighter than for other
types of rape and the standard of evidence required
to convict is often higher.
Arizona is currently wrestling with such a
vestige and confronting the question of whether the
law should treat spousal rape differently from
stranger or acquaintance rape.
On a fundamental level, the answer is clearly
“no.” Rape is a crime, and the marital
status of the victim should make no difference. A
husband who rapes should receive the same
punishment as any other rapist. After all, a spouse
who murders is still a murderer and subject to the
full force of law.
On a procedural level, however, it may be
necessary to draw an important distinction between
spousal and stranger or acquaintance rape. Namely,
if there is no clear evidence of violence, then the
standards of proof required to find a spouse guilty
of rape may be higher.
If evidence of violence is present, then no
procedural distinction between spousal and stranger
rape is appropriate. An attack is an attack, and
should be viewed as such.
The difficulty arises when there is little or no
evidence of violence and, so, the accounts devolve
into “he said/she said” scenarios. At
that point, the sexual history between a
‘victim’ and an accused rapist becomes
relevant to judging credibility.
One of the ways marriage can be described is as
a sexual partnership. Wedding vows constitute a
public announcement of that sexual union, of an
agreement to engage in sex with someone else over a
period of time. This is why not consummating the
union is grounds for www.nolo.com/article.cfm/objectID/7D19D2CA-2D7F-4268-B9D401FE97EFB36D/118/246/222/FAQ
dissolving the contract even within the Catholic
Church, which does not recognize divorce.
Marriage does not mean that a wife renders prior
consent to every sex act or any particular one.
Indeed, the presence of force in the marriage
indicates that consent prior or present is entirely
absent.
But, in contrast with stranger or acquaintance
rape, the fact that sex has occurred in a marriage
provides a court with no indication that a rape has
occurred. This affects the weight given to
evidence. For example, matching a husband’s
DNA to a semen sample makes no sense; you would
expect his DNA to be present.
Thus, when indications of violence are absent,
it is reasonable for the legal system to require a
higher standard of evidence to convict a husband
for rape.
The preceding statement will seem
uncontroversial to some. To others -- especially to
those who agree with the NOW-style approach to rape
which dominates feminism and much of our culture
the statement will be heresy. Merely suggesting
that some standards of evidence on rape should be
raised will be viewed as a “pro-rape”
stance.
Rape is the third rail of feminism and touching
the issue with anything but complete agreement with
the accepted approach will give the questioner a
nasty shock. But if the gender war that is the
legacy of NOW-style feminism is to be eased, then
every gender-based assumption must be
re-examined.
In updating the law on spousal rape, prosecutors
in Arizona should punish that crime no differently
than any other rape. But, in proving the rape, the
courts should apply a higher standard of evidence
whenever indications of violence are not
present.
©2009, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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