Marital Rape: A Hidden Injustice

In this month's STSM Volunteer Voice, the monthly newsletter which highlights our volunteer program, Anna Walton, a dedicated STSM volunteer advocate and USC student, wrote the following article in response to an experience she had on a recent hospital call.

Marital Rape: A Hidden Injustice, by Anna Walton

"The husband cannot be guilty of rape . . . for by their mutual matrimonial consent and contract, the wife [has] given up herself in this kind unto her husband, which she cannot retract."
-English jurist Matthew Hale (18th century common law)

Until the late 1970s, sexual assault was not considered a crime if it was directed toward the prosecutor’s spouse or partner. Only until 1995 did all states in the United States have some semblance of marital, or spousal, rape laws. In fact, it was explicitly stated in the pre-1970's laws that an individual could not be prosecuted for rape against his/her spouse.

There are three general ways in which the states changed their laws to criminalize marital rape. They either (1) simply removed the "marital rape exemption" without adding any additional language; (2) explicitly stated that marital rape was an offense; or (3) made marital rape a crime separate from "traditional" sexual assault. The majority of the statutes in the third case call for more rigid requirements and less strict punishments for marital rape versus "traditional" rape.

For example, in South Carolina, survivors of marital rape only have 30 days to report the crime; whereas there is no time limit for non-marital rape cases. Also in South Carolina, the assailant must have used force or threatened to use force for the assault to be considered a crime. In other words, though in "traditional" rape cases rape is defined as the lack of consent, marital rape must also include force or violence. Finally, the maximum punishment for marital rape is 10 years in prison, while non-marital rape has a maximum punishment of 30 years in prison.

In 1992, a little less than one year after South Carolina passed its marital rape law, one case hit the headlines. A man had tied up his wife, covered her eyes and mouth, hit her multiple times, and raped her. A video of the assault was presented in court and the jury, despite the ropes, slaps, and screams, acquitted the defendant on the grounds that what was shown in the video was merely a sex game. Clearly, the deeply rooted perceptions and attitudes toward that "matrimonial consent and contract," mentioned by Matthew Hale remain a strong force to be reckoned with despite the changes in legislation.

Though the statistics vary, it has been reported that between 10 to 25 percent of married women have been raped by their husbands. This suggests that marital rape is the most common form of rape. Additionally, survivors of marital rape are often raped multiple times, or the assaults may be a routine part of the relationship with the survivor’s spouse and the perpetrator may use oral or anal rape as a way to humiliate and "take ownership" of the survivor. Survivors also take longer to recover from the trauma, they usually face pressure to stay with their partner, there may be negative effects on the children in the relationship, and they experience doubt and insecurity with regards to defining the assaults as crimes.

Spousal rape has been plagued by controversy and injustice. Underreported and underrepresented, there needs to be much more public awareness about marital rape to break the stereotypes and misconceptions that don’t allow survivors of marital rape to receive the help they need.