MARITAL RAPE LAWS

Martial Exemption Today

Since 1993, all 50 states and DC have enacted laws against marital rape. The only marital exemption that still exists in some states is for statutory rape.

Statutory rape occurs when an adult has sex with a minor—someone younger than 18. People younger than 18 are legally incapable of giving consent to having sex; so for example, if Jen, a 17 year old willingly has sex with Tony, her 21 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place. But if Jen and Tony are married and live in a state with a martial rape exemption for statutory rape, Tony need not fear criminal charges for having consensual sex with Jen.

Different Laws

All states now recognize rape within marriage as a crime, and most charge the crime in the same way that rape between strangers would be charged. However, at least two states still have slight differences in the law for rape between spouses.

In South Carolina, a prosecution for spousal battery (rape) may not proceed unless the offending spouse’s conduct was reported to law enforcement within thirty days of the event. (S.C. Code Section 16-3-615.) And, as described below, Virginia provides for marital or personal counseling in lieu of court proceedings in some cases of marital rape.

Proving Non-consent

Proving rape by a spouse can often be more difficult, because it can be more difficult to prove that the victim did not give her consent. While this can be fairly straightforward to prove in the case of stranger rape, married couples usually have consensual sex, so it can take evidence of marital discord or separation to show that the sexual activity was not nonconsensual.

Penalties

Most states penalize marital rape like any other rape—that is, with fines that range between several thousand dollars in some states, to over $50,000 in others; and with prison terms that vary between several years and life in prison without parole. In all most states, the applicable punishment also varies according to the severity of the circumstances of the crime.

Some states have special penalties available for someone convicted of raping a spouse. For example, in Virginia the court may waive fines and prison time if the rapist spouse successfully completes a court-approved counseling program. However, this option is available only if the victim agrees to it, and may only be used once. While this might provide the opportunity for reconciliation in some cases, it also allows an abusive spouse to intimidate his wife into approving lesser penalties; something that a stranger may not do.

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