Donald Trump’s lawyer’s comments that marital rape isn’t a crime rightly inspired outrage. They were both offensive and wrong on the law. Sadly, however, Cohen’s comments reflect the prevalent view that marital rape is not “real” rape, a view still informing the law on the books and in practice.
Historically, marital rape did not exist. Marriage rendered a woman her husband’s property, under the coverture doctrine. Even when coverture was abolished, this property framework continued to inform family law. Sex was deemed an essential part of the marital bargain, the wedding vows a blanket consent to sex. The Model Penal Code from 1962, an effort to reform the criminal law, has surprisingly propagated this view, stating that “The traditional explanation for legal incapacity to rape one’s own wife is that the marriage constitutes a blanket consent to sexual intimacy which the woman may revoke only by dissolving the marital relationship.”
Efforts to recognize marital rape as a crime date back to the mid-19th century but gained little traction despite reforms including female suffrage and property rights. There were significant family and criminal law reforms in the ‘60s and ‘70s—no-fault divorce was granted and the corroboration requirement for rape victims was abolished—but claiming spousal rape remained legally impossible in most states.
Nebraska was the first state to abolish the marital rape exemption, in 1976. In New York, where Ivana Trump was allegedly raped, the Court of Appeals abolished the marital rape exemption in 1984, opining that “a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.”
The particularly egregious facts of that case, People v. Liberta, made it easier for the court to sympathize with the victim. Denise Liberta was separated from her husband, living in a motel where she had fled with her children from her husband’s abuse. Mario Liberta came to the motel, threatened to kill his ex-wife and forced her to perform fellatio and engage in sexual intercourse with him, also compelling their two-year-old son to watch. Facts such as whether or not the victim was separated and the violence of the crime continue to inform enforcement of marital rape, although they are not legally required in most states. By 1993, all states recognized marital rape as a crime.
The story does not end there, however. More than twenty states continue to treat marital rape differently, by more narrowly defining it than other types of rape, by placing additional hurdles on victims to prosecute the case, and/or by imposing lighter penalties. For instance, Oklahoma requires proof of a “force of violence” if someone accuses their spouse of rape, and spouses are not included in its definition of rape of someone who is unconscious. In Ohio, a rape that happens in marriage when the spouses are living together is a lesser charge. In Virginia, the perpetrator can undergo a therapy program under certain circumstances, which if completed successfully, replaces any punishment.
Even in those states where there is no difference in the law on the books, spousal rapists are less likely to be prosecuted and convicted. Police and prosecutors act as gatekeepers for all types of rape, assessing victims in a manner unthinkable for other crimes. Although all rape victims are treated poorly, marital rape victims face particular suspicion and disdain from the public and criminal justice players. As a result, many will not report or pursue prosecution. Marital rape remains a widespread problem; it is estimated that one out of every seven or eight married women has been subject to rape or attempted rape by their husbands. Yet the majority will never achieve justice.
This marital rape exceptionalism reflects a broader trend to treat crimes against family members less seriously than other crimes. Intimate partner violence is rarely punished as severely as a bar fight assault, and child predators who sexually abuse a family member generally receive lighter sentences than those who prey on strangers. This pattern discounts the psychological findings that being harmed by a loved one—a spouse or parent—can actually be more traumatic than being harmed by a stranger.
What justifies this “family discount” for offenders? Notions of family privacy and harmony. Privacy has long shielded much harmful behavior from state action. Yet it has never prevented family members from seeking state assistance in business or inheritance disputes. On the contrary, privacy has only served to thwart protection of the most vulnerable family members: children and women (who could not own property historically, rendering them financially dependent on their male relatives).
Compounding this barrier is the vision of family violence as an intimate squabble in which courts are not qualified to intervene. One of the most popular ongoing arguments against treating marital rape equally to other rapes is that disgruntled spouses, perhaps hoping for a better financial settlement at divorce, will cry rape falsely. Tellingly, in South Carolina, victims of spousal rape have just 30 days to report the incident to authorities, in stark contrast to the victims of other crimes. One state legislator argued against eliminating the marital rape exemption because a rape accusation “could cause a person to go to jail for 10 years just because of an argument at breakfast, maybe.”
Relatedly, opponents of rape reform argue that punishing marital rape impedes spousal reconciliation. This argument seems to ignore the tremendous harm that rape itself presents to marital harmony. Rape, however, remains one of the most underreported crimes, and the stigma and questioning that victims still encounter makes it unlikely that many will falsely report. Coupled with with privacy doctrine, this hands-off attitude of state actors continues to empower rapists and abusers to prey on those closest to them.
The renewed attention to rape this past year has brought some encouraging reforms. The California and New York state university systems implemented an affirmative consent regime, and nationally, law enforcement, victims’ representatives, and others are talking about how to reform rape law and enforcement. We should use this opportunity to acknowledge the harm of all types of non-consensual or forcible sex. Rape is rape, whatever the relationship between the offender and the victim. Recognizing this would be a truly family-friendly reform.
Cynthia Godsoe teaches criminal and family law at Brooklyn Law School, and writes about crime among intimates.
