Spousal Rape Case Sparks Old Debate

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He attacked
around
midnight
, choking her, dragging her by her hair, brutally raping
her over and over again.

But as the
husband of his victim, this violent rapist may receive only 1 1/2
years imprisonment and, perhaps, none at all. A stranger committing
the same crime could receive 14 years.

Prosecutors
in Coconino County, Ariz., 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.

In doing so,
the prosecutors have entered a centuries-old debate on the issue
of whether a rape, by definition, can occur between husband and
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, in current
discussions of spousal rape, women are the victims and men the perpetrators.
Although men are now acknowledged to be domestic violence 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 being categorized 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.

The letter
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
did not catch up with the Markland letter until 1976. Until then,
rape laws throughout the states included a Marital Rape Exemption.
In 1976, however, Nebraska
became the first state to abolish that exemption.

Today, spousal
rape is illegal in every state. Nevertheless, many states 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 person who murders his or her spouse 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 rape 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 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
of rape.

The preceding
statement will seem uncontroversial to some. To others — especially
to those who agree with the traditional feminist approach to rape
supported by groups like NOW, 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.

February
17, 2005

Wendy
McElroy [send her mail]
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 the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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