Marital rape is illegal in the U.S., but many states think it's not as illegal as rape outside of marriage

By Katie McDonough | July 28, 2015 | 8:12pm

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On Monday, The Daily Beast published excerpts from a 1993 biography of Donald Trump alleging that the Republican presidential candidate, who launched his candidacy with a speech claiming that Mexican immigrants are rapists and murderers, sexually and physically assaulted his then-wife Ivana Trump.

Michael Cohen, special counsel at the Trump Organization, responded in the piece by denying the allegation—and then denying that rape inside marriage is a crime.

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“You’re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody,” Cohen said. “And, of course, understand that by the very definition, you can’t rape your spouse. It is true. You cannot rape your spouse. And there’s very clear case law.”

But the “very clear case law”—in all 50 states—is explicit that marital rape is a crime. In fact, it’s been a crime since 1993, the year Lost Tycoon: The Many Lives of Donald J. Trump was published.

Cohen soon corrected himself in a statement of apology, calling the assertion an “inarticulate comment” made in a moment of “shock and anger.” (In a separate statement, Ivana Trump called the piece “totally without merit.”)

Cohen might have had his legal facts wrong, but it’s worth looking at why he might have made the error in the first place: in nearly half of the states in the country, rape within marriage is treated differently than rape outside of marriage. So while marital rape is illegal in every state, in some states, it’s not as illegal as rape outside of marriage.

“Today, 27 states treat rape inside and outside of marriage the same, but the remaining 23 states treat marital rape more leniently,” Jill Hasday, a professor at the University of Minnesota Law School, told Fusion. “They either criminalize a smaller amount of conduct—for instance, some states will say if it’s rape that’s at the top few levels of severity, like rape with deadly force, then it’s rape inside of marriage. But if it’s a lower level of severity—like rape of an unconscious person—it could be rape if it’s outside of marriage, but not inside.”

And when rape inside marriage is prosecuted, a conviction can carry a lesser penalty: “Another thing [states] do is have less serious penalties for marital rape or have special procedural obstacles [like a requirement] to report within 30 days,” she explained.

This kind of legal double standard is rooted in an enduring cultural belief, once backed by early common law, that, as Cohen erroneously said, a person can’t actually rape their spouse. For women, “I do” was considered an enduring and irrevocable act of sexual consent. It’s an idea that, in many ways, still persists today.

“Even if states eliminated formal distinctions between marital rape and rape outside of marriage, I wouldn’t think that, as a practical matter, they’d be treated the same for a very long time because of underlying social attitudes in terms of prosecutors willingness to pursue it, a jury’s willingness to convict, or even people’s willingness to come forward,” Hasday said.

These underlying social attitudes—cultural and legal norms about women’s autonomy, consent, and sexual entitlement—keep many victims from coming forward. According to the Justice Department’s National Crime Victimization Survey, nearly 70 percent of sexual assaults are never reported to law enforcement.

They are also at the very foundations of early law regarding marital rape, as the New York Times noted in a piece from 1984 on the rising number of states that enacted laws criminalizing rape inside marriage.

“The husband cannot be guilty of a rape committed by himself upon his lawful wife,” according to Sir Matthew Hale, a Chief Justice of England in the 17th century. “For by their mutual consent and contract, the wife hath given up herself in this kind.”

Hale’s 17th century legal musings sound a whole lot like Cohen’s original comment. They also sound a whole lot like a number of conservative politicians and activists who have said over the years that rape within marriage isn’t really rape or questioned if it’s reasonable to prosecute it.

In 2008, conservative activist and Eagle Forum founder Phyllis Schlafly told students at Bates College that she believed that “by getting married, the woman has consented to sex, and I don’t think you can call it rape.”

In 2002, Virginia state Sen. Dick Black, who considered a congressional run in 2014, questioned whether or not a jury could reasonably convict a man for raping his wife.

“I don’t know how on earth you could validly get a conviction in a husband-wife rape when they’re living together, sleeping in the same bed, she’s in a nightie and so forth,” he said during a debate on an amendment that would have limited the prosecution of marital rape. “There’s no injury, there’s no separation, or anything.”

Black also expressed his concerns about false allegations and the “enormous fear of the damage to his reputation” a man would feel if falsely accused. (The amendment ultimately failed, and in a statement to MotherJones, which first reported on Black’s comments, an aide from Black’s office said any suggestion that he “supported spousal rape” was “absurd.”)

Cohen was wrong about the law on marital rape, but he is also the reason that people are talking about the issue in the context of a presidential campaign, which is actually a good thing. According to Hasday, part of the trouble with these laws—and one of the reasons they persist—is that very few people even know they exist.

“The reason states got rid of the absolute marital rape exemption was pressure from the women’s rights movement,” she explained. “Similarly, the best way to change these laws [today] is popular outrage.”