In previous decades — and, indeed, throughout much of history — sexual assault against a spouse was not considered a crime. This may be difficult for most people to believe today, as societal attitudes toward marital rape and sexual assault have changed, but the laws against sexual assault carried out against a spouse didn’t change in the United States until quite recently.
In Texas, for example, it was impossible for one spouse to rape another until 1994. Up until that time, the sexual assault statute included an exemption for sexual assault against a spouse.
Today, however, Texas law makes no distinction between sexual assault against a non-spouse and sexual assault against a spouse. The Texas Association Against Sexual Assault also notes that “Texas has gender-neutral sexual assault laws.” This means that sexual assault is still sexual assault whether it takes place between a husband and wife, a married same-sex couple, or two strangers. Under Texas law, it is also a crime for a wife to sexually assault her husband.
How Is Marital Sexual Assault Treated in the Other States?
While every state in the country now makes marital sexual assault illegal, the majority of states didn’t change their laws until the 1990s. Experts explain that outdated laws stem from a “centuries-old idea that consent is more difficult to define within the bounds of marriage. That particular notion dates back ‘hundreds of years’…to 17th-century British common law, in which a woman’s unconditional sexual consent was considered to be part of the marriage contract.”
While scholars aren’t certain just when the marital rape exception was first used, there are records of judges in England citing it as early as the 18th century. For example, Sir Matthew Hale wrote in the 1700s, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract.”
In fact, eight states in the U.S. still maintain language that treats marital rape differently than rape carried out against a non-spouse. For example, in Ohio, the rape of a spouse must be carried out by “force or threat of force.” In South Carolina, the sexual assault must involve “the threat of use of a weapon” or “physical violence of a high and aggravated nature.”
Oklahoma law contains similar force language and also makes an exception for sexual assault against an unconscious person if the person happens to be the perpetrator’s spouse. In essence, this means an individual can have sexual intercourse with an unconscious, sleeping, or drugged person if they are married to the person.
What Is Intimate Partner Violence?
While marital sexual assault is prosecuted as a crime in Texas and other states, it’s important to point out that the law often encounters difficulties when it comes to prosecuting sexual crimes carried out against a spouse. The reason is that it is expected for two spouses in a marriage to be intimate with each other. When the parties live together and engage in sexual activity, it is sometimes challenging to determine what constitutes consent or lack of consent. Generally, sexual crimes that take place within the bounds of a relationship, including marriage, are referred to as intimate partner violence.
As the Survivor Alliance points out, “When the relationship between the survivor and perpetrator is an intimate one, different dynamics come into play. Intimate partner violence encapsulates a wide range of violence from physical abuse to rape, with the different types of abuse often occurring alongside each other. A 2007 study showed that most women who were physically abused by their partner have also been sexually assaulted by that same partner. Because these relationships are complicated by love, children, or financial reasons (among many others), survivors often find it difficult to leave the relationship and/or come forward about the abuse. Other names you might hear in regards to intimate partner violence are domestic violence, intimate partner rape, marital rape, and spousal rape.”
According to the founder and president of the Rape, Abuse & Incest National Network (RAINN), “When there’s not a third party witness or no external reference it becomes his word against hers. So it’s sometimes very challenging for prosecutors to win a conviction.”
This is particularly problematic, as spousal rape is a factor in one-third of all domestic violence cases. According to the Centers for Disease Control and Prevention (CDC), 2 million women experience intimate partner violence every year. In a 1998 study, 14 percent of married women said they had experienced sexual assault within marriage at least once. The CDC also reports that 1 in 9 men has been a victim of intimate partner violence.