OBSTACLES AGAINST THE JUSTICE OF MARITAL RAPE

Only about half of the states have totally abolished the distinction between marital and non-marital rape. Twenty of the states that have kept the distinction grant immunity to a husband who has sex with his wife while she is unconscious or otherwise incapable of giving consent. In the states whose laws have maintained the distinction between marital and non-marital rape, the prosecution is confronted with elevated levels of proof built into these laws.

Statutory obstacles

Some of the states that still treat marital rape differently from non-marital rape require that marital rape victims report the crime within a shorter period of time than is required of non-marital rape victims. And, some of these states impose less severe sentences upon rapists who are married to their victims than on those who are not, including allowing for dismissal of charges if the victim-spouse agrees and if the spouse-rapist undergoes counseling. Some states even require that the prosecution make a greater showing that force or violence was used during marital rape than is required in a non-marital rape case.

Emotional and cultural obstacles

Thanks to the added statutory obstacles, prosecutors can be reluctant to pursue marital rape cases. And, spouse-victims of marital rape have the added trauma of sexual assault by their partner, the person with whom they live and, often, the parent of their children on top of the trauma all rape victims experience. Social stigma, the impact on children, and family shame may also add to the pressures a person faces when considering whether to report a marital rape. Jurors may doubt that a husband actually raped his own wife, and the spouse-victim’s testimony is often the only evidence of the rape. DNA or semen sample evidence would be irrelevant because the spouses it may have resulted from consensual sex between the spouses before the rape.

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