Wife Raping
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Wife Raping
From Wikipedia, the free encyclopedia
This article is about the laws on marital rape in the United States. For the topic of marital rape in general, see Marital rape . For global laws, see Marital rape laws by country .
^ Jump up to: a b c Johnson, Mollie. "The Gradual Fall of the Marital Rape Exemption: The Curious Case of South Dakota" (PDF) . Veteran Feminists of America .
^ Jump up to: a b Ross, Joann M. (2015). Making Marital Rape Visible: A History of American Legal and Social Movements Criminalizing Rape in Marriage (PhD). University of Nebraska.
^ Jump up to: a b "SPOUSAL RAPE LAWS: 20 YEARS LATER" (PDF) . Ncdsv.org . Retrieved 2020-08-16 .
^ Geis, Gilbert (1978), "Rape in Marriage: Law and Law Reform in England, the United States, and Sweden", Adelaide Law Review , 6(2):285.
^ R v R [1992] 1 AC 599.
^ "Valley paper criticized over pastor's column on spousal rape" . Anchorage Daily News . July 22, 2011. Archived from the original on 2013-10-29.
^ Denno, Deborah W. (Fall 2009). "Selected Model Penal Code Provisions" (PDF) . Fordham University School of Law. Archived from the original (PDF) on 2013-10-29 – via Prentice Hall.
^ Barden, J. C. (May 13, 1987). "Marital Rape: Drive for Tougher Laws is Pressed" . New York Times .
^ Finkelhor, David; Yllo, Kersti (1985). License to Rape: Sexual Abuse of Wives . New York: The Free Press. p. 172.
^ Jump up to: a b Ledbetter, Les (28 December 1978). "Oregon Man Found Not Guilty On a Charge of Raping His Wife" . The New York Times . Retrieved 28 February 2019 .
^ Woodworth, Whitney (13 August 2016). "Rape and Marriage: A look back at the Rideout case" . Statesman Journal . Retrieved 14 January 2018 .
^ People v. Liberta 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207(1984)
^ " Williams v. State 494 So. 2d 819 (Ala. Crim. App. 1986)" . Fall 2002. Archived from the original on 2013-10-29.
^ Merton v. State 500 So.2d 1301 (1986)
^ Bergen, Raquel Kennedy, "Marital Rape" Archived 2011-10-06 at the Wayback Machine , 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.
^ Hasday, Jill Elaine (October 2000). "Contest and Consent: A Legal History of Marital Rape" . California Law Review . 88 (5). doi : 10.2307/3481263 . Retrieved May 3, 2022 .
^ Jump up to: a b Bergen, Raquel Kennedy (March 1999). "Marital Rape" (PDF) . Applied Research Forum, National Electronic Network on Violence Against Women. Archived from the original (PDF) on 2013-07-24 – via University of Hawaii.
^ Jump up to: a b Anderson, Michelle J. "Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates" . Hastings Law Journal . 54 . Archived from the original on 2013-10-29.
^ Walden, Rachel (November 5, 2008). "Why Reproductive Rights Advocates Need to Start Paying Attention to Tennessee" . Women's Health News . Archived from the original on 2021-01-08.
^ "SB 0556 (HB 1116)" . Tennessee General Assembly . Archived from the original on 2022-04-06 . Retrieved May 3, 2022 .
^ "Tenn. Code Ann. § 39-13-503" . LexisNexis . Retrieved May 3, 2022 .
^ Minard, Anna (May 2, 2013). "Washington Closes Troubling Marital Rape Loophole, to the Relief of Wives" . The Stranger . Retrieved May 3, 2022 .
^ "Eliminate Marital Exemptions for Rape in the Third Degree and Indecent Liberties" (PDF) . Washington Coalition of Sexual Assault Programs. Archived from the original (PDF) on 2015-10-17 . Retrieved 2015-06-09 .
^ "HB 1108 – 2013–14 – Modifying the definition of rape in the third degree and indecent liberties" . Washington State Legislature . Retrieved May 3, 2022 .
^ "609.349 MS 2018" . Minnesota: Office of the Revisor of Statutes . Retrieved May 3, 2022 .
^ "609.341 2021" . Minnesota: Office of the Revisor of Statutes . Retrieved May 3, 2022 .
^ Vera, Amir (2019-05-03). "Marital rape is no longer legal in Minnesota with new law" . CNN . Retrieved 2019-05-20 .
^ Ferguson, Dana (2 May 2019). "Walz signs repeal of marital rape exemption in Minnesota" . Twin Cities . Retrieved 2019-05-20 .
^ Jump up to: a b c d Francis, Leslie (2010). Date Rape: Feminism, Philosophy, and the Law . University Park, Pennsylvania: Penn State Press. pp. 53–55. ISBN 9780271038162 . Retrieved 29 January 2021 .
^ Jump up to: a b c d "CA Codes (pen:261-269)" . Archived from the original on 8 January 2016 . Retrieved 22 August 2015 .
^ "Bill Text - AB-1171 Rape of a spouse" . leginfo.legislature.ca.gov . Retrieved 2022-05-06 .
^ Jump up to: a b "Chapter 952 - Penal Code: Offenses" . www.cga.ct.gov .
^ "Section 18-6101 – Idaho State Legislature" . Retrieved 2022-06-30 .
^ "Code of Maryland, Criminal Law, Sec. 3–318" . General Assembly of Maryland . Retrieved 11 December 2017 .
^ Legislature.mi.gov
^ Legislature.mi.gov
^ Mscode.com Archived 2012-10-16 at the Wayback Machine
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^ Webserver.rilin.state.ri.us
^ "South Carolina Code 16-3-652. Criminal sexual conduct in the first degree" . LawServer.com . Retrieved 18 July 2019 .
^ "South Carolina Code 16-3-653. Criminal sexual conduct in the second degree" . LawServer.com . Retrieved 18 July 2019 .
^ "South Carolina Code 16-3-615. Spousal sexual battery" . LawServer.com . Retrieved 18 July 2019 .
^ "South Carolina Code 16-3-615. Spousal sexual battery" . LawServer .
^ "South Carolina Code 16-3-654. Criminal sexual conduct in the third degree" . LawServer.com . Retrieved 18 July 2019 .
^ "South Carolina Code 16-3-658. Criminal sexual conduct; when victim is spouse" . LawServer.com . Retrieved 18 July 2019 .
^ Leg1.state.va.us
^ "You can still get married at 12 in some parts of the US" . 9 March 2016.
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^ https://www.legis.iowa.gov/docs/code/2016/709.4.pdf [ bare URL PDF ]
^ Tidgren, Kristine (6 September 2016). "Iowa Court of Appeals Says Common-Law Marriage Established" . The AG Docket: Perspective on Current Agricultural Law Issues . Iowa State University Center for Agricultural Law and Taxation . Retrieved 22 June 2019 .
^ Statecasefiles.justia.com
Marital rape in United States law , also known as spousal rape , is non-consensual sex in which the perpetrator is the victim's spouse. It is a form of partner rape , of domestic violence , and of sexual abuse . Today, marital rape is illegal in all 50 US states , though the details of the offence vary by state.
Prior to the 1970s marital rape was legal in every US state. It was partially outlawed in Michigan and Delaware in 1974, then wholly outlawed in South Dakota and Nebraska in 1975. [1] [2] The court case Oregon v. Rideout in 1978 was the first in which someone stood trial for raping his spouse while they lived together. By 1993 marital rape was a crime nationwide. [3] Still, in the 1990s, most states continued to differentiate between the way marital rape and non-marital rape were viewed and treated. The laws have continued to change and evolve, with most states reforming their laws in the 21st century. But there are still states where marital rape and non-marital rape are treated quite differently under the law.
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 derived from laws of King Æthelstan (r. 927–939) where upon 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". [4] 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, [5] where it was described as an anachronistic and offensive legal fiction. [6]
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: ...". [7]
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. [1]
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. [1] According to the New York Times South Dakota was the first state to outlaw marital rape. [8]
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 . [2]
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. [9] In the 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. [10] 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 immunity. [10] Although the husband was acquitted of raping his wife, it spurred the movement towards reform; many American states began to allow prosecution for marital and cohabitation rape. [11]
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". [12] Similarly, in Alabama , the marital exemptions from the sodomy law ( Williams v. State (1986) [13] ) and from the rape law ( Merton v. State (1986) [14] ) were found unconstitutional.
By 1993, all states had withdrawn the marital rape exemptions, the last states to do so being Oklahoma and North Carolina [3] (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. [15] [16] [17] [ verification needed ] [18]
During the 1990s many states differentiated between three categories of victims: [18] [19]
In the 1990s and beyond, feminists , women's and other organizations have 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 changed numerous times, but 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. [20] [21] [22] The bill to repeal the old law was introduced more than ten times before it succeeded. [ citation needed ]
Until 2013, Washington had an exemption preventing a spouse from being prosecuted with third-degree-rape against the other spouse. [23] Washington removed its exemptions for first-degree rape and second-degree rape in 1983, [24] but the exemption for third-degree rape was removed 30 years later. [25]
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' [26] 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). [27] In 2019, these exemptions were repealed. [28] [29]
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". [19]
Since 2003, several states have reformed their laws (see above).
Some states continue to treat marital and non-marital rape differently:
In California , marital rape was recognized as a crime by Section 262 of California's Penal Code in 1979. [30] However, there are separate criminal offenses for non-spousal rape (Section 261) and for spousal rape (Section 262); [31] the latter continues to be treated as a less serious crime. [30]
Since January 1, 2019, Section 261.6 defines "consent" as "positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved". Sections 261.6 and 261.7 stipulate that, wherever "consent is at issue", "a current or previous dating or marital relationship shall not be sufficient to constitute consent", neither is "evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device". [31]
October 7th, 2021, the governor signed Assembly Bill 1171 eliminating section 262 of California's Penal Code. AB-1171 would repeal the provisions relating to spousal rape and make conforming changes, thereby making an act of sexual intercourse accomplished with a spouse punishable as rape if the act otherwise meets the definition of rape, except that sexual intercourse with a person who is incapable of giving legal consent because of mental disorder or developmental or physical disability would not be rape if the 2 people are married. [32]
Connecticut Penal Code Sec. 53a-70b deals with forced sex with a spouse. This does not apply only to spouses but also to unmarried cohabitants. The law is more narrow than the other sex laws and it has a shorter penalty. It reads: [33]
No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.
The spousal rape law of Connecticut makes reference to force used or threatened against the "other spouse or cohabitor" while the 'ordinary' sexual assault law deals with force used or threatened against the "other person or against a third person ". [33]
Idaho statute 18-6101 defines criminal rape, not excluding marital rape, as the oral, vaginal, or anal penetration by a penis and either the inability of the victim to give legal consent, the victim resisting but being overcome by force or violence, the victim being prevented from resisting, the victim being unconscious, or when the victim submits under certain false pretenses. [34]
Maryland law states that, if the spouses are living together, a prosecution can take place only if the accused "uses force or threat of force and the act is without the consent of the spouse". If the spouses are separated they are treated as if they were strangers (See Section § 3-318) [35]
In Michigan , Section 750.520l excludes situations where the criminality comes solely due to the spouse being "mentally incapable, or mentally incapacitated". [36] Section 750.520a Definitions reads: " 'Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent , or due to any other act committed upon that person without his or her consent ." [37]
In Mississippi , a person can be convicted of sexual battery of a spouse when they are living together only if he engages in "forcible penetration against the victim's will". [38] This excludes, among others, situations where the victim is "rendered incapable of knowing or controlling his or her conduct, or incapable of resisting
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