Marriage, Sexual Assault and the Law

Aug 21st, 1970

Continued from Frontline Fall 2010 issue... ...than other abused women to be killed. (Campbell, 2003. Assessing Risk Factors for Intimate Partner Homicides, 250 NIJ Journal 15.) The National Institute of Justice found that just over half of women raped by an intimate partner said they were victimized repeatedly by that partner.  (National Judicial Education Program, Intimate Partner Sexual Abuse, 2010). In the face of such strong evidence that sexual abuse of an intimate partner is common and lethal, it’s astounding that marriage is still a defense to some Maryland sex crimes.  Criminal Law Article §3–318 provides that a person may not be prosecuted for certain 1st or 2nd degree rapes, or 3rd or 4th degree sexual offenses against their spouse. There are no legal exceptions that apply to 4th degree sexual offenses – it is always legal to commit these kinds of sexual offenses against a current spouse.  Fourth degree sexual offenses involve groping or penetration with a finger, fist or other body part that is not a penis or tongue.  It also includes some age-based offenses (often called “statutory rape”) and some sexual conduct between educators and students.  Spouses who have an absolute divorce, or who have a limited divorce and have remained separated, can be convicted of a 4th degree sex offense against their former partner. Marriage is a defense to criminal charges of rape and some types of 3rd degree sexual offense with certain exceptions.  Spouse can be prosecuted if:
  • the perpetrator-spouse used force or threat of force without the consent of the victim; OR
  • the couple has lived separate and apart without cohabitation and without interruption for at least 3 months before the assault or with a written separation agreement.
This means that one spouse can rape or commit a 3rd degree sex offense against another if they are physically helpless (e.g. unconscious), mentally incapacitated (for instance, through use of a “date rape” drug or alcohol), or seriously cognitively impaired.  Aged based rape and sexual offenses are also permitted.  As with 4th degree offenses, spouses who have an absolute divorce, or who have a limited divorce and have remained separated, can be convicted of these crimes against their former partner. MCASA has worked with strong advocates in the General Assembly to chip away at the “spousal defense” to sex crimes.  It was only 2004 when “threat of force” was added to the list of exceptions that permit prosecution of spouse-offenders.  Prior to that time, a rape charge could be brought against a spouse who used “actual force” to commit the rape – for instance by slashing a wife’s throat.  Marriage was a defense, however, if the rapist “only” used threat of force – for instance by holding a knife to the wife’s throat without actually slashing it.  Then-Delegate Anthony Brown, now Maryland’s Lt. Governor, led the effort to correct this injustice. Most states have eliminated all vestiges of the “marital rape exemption.”  MCASA will continue to advocate for Maryland to do so as well. Written by Lisae C. Jordan, Esq. MCASA General Counsel/SALI Director For more information about domestic violence, you can also contact our friends at the Maryland Network Against Domestic Violence.

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