Reforming Rape Laws it Was Till Late

Reforming Rape Laws

It was till late 1970s that in many of the states spouse rape was not considered a crime. The law has implanted 'marital rape exemption' in the sexual assault law. This means that a husband cannot rape his wife legally. The philosophy behind this exemption was that when husband and wife accept the marital contract, a woman has consented to sexual intercourse any time her husbands demanded for it. This law of exemption has been taken from the 18th century law proposed by English jurist Matthew Hale which says "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" (Russel, Diana E.H. 1990).

The advocate of women rights have protested the law on marital rape exemption and in the year 1976 Nebraska was the first state that had eradicated marital rape exemption law followed by other states in United States. New York state court appealed that marital license doesn't permit sexual rape assault and merely having consent through matrimonial contract doesn't give authority to husband to sexually abuse wife. This argument has raised many questions and support on criminalizing spouse rape and many states like Illinois has completely abandoned spousal rape exemption in cases of forcibly or violent rape. However, California state law has defined spousal rape as separate offence then stranger rape.

Spousal Rape Different perspectives in different states

Rape of a spouse is treated differently in different states. Since their nature of response by the court of law is different so they are punished differently too. In West Virginia, spousal sexual assault is considered as disagreed sexual penetration or sexual intrusion of the executor's spouse. The executor must use forcible compulsion or some deadly weapon or impose bodily injury or harm. Then this offence is considered a crime and is punished for two to ten years imprisonment. However, if the same act is done by the person who is a stranger or not married the consequential punishment would have been ten to thirty-five years of imprisonment. Similarly in California this law is treated differently. If a person commits non-spouse rape through force, violence, duress, menace, or fear of immediate and unlawful bodily injury would be treated differently as compared to the same done in case of spouse.

The law of different states has also differentiated the mode of spouse rapes on the basis of threat being used unlike non-spouse rape. Like in Tennessee, a husband is guilty of his wife rape only if he uses armed weapon, cause serious bodily injury to his wife or when they lives an apart and one of them has filed for divorce or separation.

Diana E.H. Russell, Ph.D Research on Rape and Marriage