Back in the 17th century, an English jurist espoused the legal theory that there was no such thing as rape within a marriage because by entering into marriage, a woman’s consent to sex with her husband was implied.
It took a few centuries, but that theory is no longer widely accepted. Although marital rape was officially considered a crime in every state by the early 1990s, however, there are still loopholes.
What’s known as the “marital rape exemption” is still recognized in some form in most states. That’s despite some lawmakers’ attempts to completely do away with the exemption, also known as the “spousal defense.” Most of these attempts to end the exemption involve cases where a victim is unconscious, drugged or incapacitated in some other way.
However, 17 states, including Maryland, still include a marital exemption even for cases where a spouse is incapacitated. Recently, a failed attempt was made to move a bill forward that would eliminate that exemption. In fact, the Maryland bill sought to do away with a marital exemption for any type of sex crime. It never made it out of the General Assembly.
Some questions asked by Maryland lawmakers during the debate on the bill reflect beliefs that have stubbornly hung on through the centuries regarding whether the marriage vows imply consent and whether a religious belief that two people become one in marriage exempts someone from being charged with marital rape. One professor notes that some centuries-old beliefs have kept marital rape from being criminalized the way other forms of domestic violence are.
How common is marital rape? It can never be known for certain. Some surveys have shown that between 10% and 14% percent of women have been raped by their spouse. The Centers for Disease Control and Prevention (CDC) has a slightly lower number of about 9% (and less than 1% for men).
While we wait for some lawmakers to move into the 21st century, no one should have to fear for their safety or that of their family. If your partner, spouse or an ex has harmed or threatened to harm you, you can seek a protective or peace order. Talk with your attorney right away.