When the 17th century English jurist Sir Matthew Hale declared rape could not happen within marriage because wedding vows implied a wife’s ongoing consent to sex, witches were still being burned at the stake.
Three and a half centuries later, remnants of the so-called “marital rape exemption” or “spousal defense” still exist in most states. Although all 50 states had laws making marital rape a crime by 1993, many states’ marital rape laws have loopholes — not only involving the victim’s capacity to consent, but related to age, relationship, use of force or the nature of the penetration. Some impose short time-frames for victims to report spousal rape.
Minnesota is the latest state to take action: The state Legislature voted this week to eliminate an exemption that protected spousal rape that occurred when a partner is drugged, unconscious, or otherwise incapacitated.
In 2019, Maryland Delegate Charlotte Crutchfield introduced a bill to repeal the marital exemption for all sex crimes (House Bill 958). At the bill hearing, one delegate expressed concern about whether striking a spouse on the buttocks would then be a sex crime. (Note that is a crime to strike a spouse, Maryland law just permits marriage to be a defense to sex crimes.) Another raised religious concerns: “If your religion believes if you’re married, two are as one body, then what happens? Can you get a religious exemption?”
MCASA testified in response "...you would have to rely on your faith and your commitment to that to not bring those charges. But that’s no place for the General Assembly.”
-Lisae C. Jordan, Executive Director of MCASA
The bill to end the archaic law making marriage a defense to some sex crimes failed this session, but will be reintroduced next year. MCASA will continue to work for justice for Maryland sexual assault survivors by advocating for legislation that won't allow your legal relationship with another human being to permit rape.
To find out more about the legislation other states are considering, you can read the full Washington Post article here.