• Spousal Rape Case Sparks Old Debate

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    He attacked
    , 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.

    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

    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

    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

    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.

    17, 2005

    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).

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