Some states continue to treat marital and non-marital rape differently. The relevant laws are detailed below.
In Ohio, a rape that happens in marriage when the spouses are living together can only be charged under subsection A(2) of 2907.02 Rape, which states that: "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." By contrast, a person who is not married to the accused or who is married but living separate and apart can rely on many laws which deal with various forms of coercion. It is notable that subsection A(1)(a) of 2907.02 Rape that deals with drugging someone "surreptitiously or by force, threat of force, or deception" to coerce them into sex does not apply in marriage (except in case of separation). The whole article 2907.03 Sexual battery, that deals with various forms of coercion (for instance it states in subsection in A (1) that "The offender [commits a crime when he] knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution does not apply at all to married people.[23][24] In 2015, a bill[25] was introduced to remove these exemptions.[26]
Similarly, Maryland law states that, if the spouses are living together, a prosecution can take place only if the accused "uses force or threat of force and the act is without the consent of the spouse." If the spouses are separated they are treated as if they were strangers (See Section § 3-318)[27]
A similar situation exists in Mississippi. A person can be convicted of sexual battery of a spouse when they are living together only if he engages in "forcible penetration against the victim's will".[28] This excludes, among others, situations where the victim is "rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent".[29]
Nevada law appears to require force or threat of force. Article 200.373?states that:?"It is no defense to a charge of sexual assault that the perpetrator was, at the time of the assault, married to the victim, if the assault was committed by force or by the threat of force."[30] This seems to imply that if force or threat of thereof were not used, marriage can be a defense. The general definition of sexual assault uses the wording "against the will of the victim" or "under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct".[30]
In Oklahoma, rape by a spouse can only be charged under subsection (B) of Section 1111 - Rape Defined which states:[31]
B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.
For instance, a person in Oklahoma can not charge her/his spouse for rape if she/he is compelled to submit due to drugs "administered by or with the privity of the accused as a means of forcing the victim to submit", or when she/he is unconscious, as these situations are dealt under subsection (A) of Section 1111 which define rape as intercourse "with a male or female who is not the spouse of the perpetrator ".
In Virginia, the main difference lies in punishment. Under certain circumstances, if the victim and the attorney for the Commonwealth agree, the perpetrator can undergo a therapy program, which if completed successfully, replaces any punishment. This can happen if "the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness."[32] While the victim has to agree to this option, this can expose the victim to intimidation and threats from the perpetrator, or to social pressure to remain in the relationship.
In Rhode Island, Article § 11-37-2 'First degree sexual assault', has four subsections; while subsections 2, 3 and 4 apply to spouses, subsection 1 does not; it reads: "The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless."[33] This has the result of excluding from prosecution, among other situations, incidents where the victim was drugged by the perpetrator ("Mentally incapacitated" is defined by legislation as: "a person who is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or who is mentally unable to communicate unwillingness to engage in the act".[34])
In Minnesota sexual violence occurring between spouses at the time they cohabit or between unmarried partners can be prosecuted only if there was force or threat of thereof, due to exemptions created by Article 609.349 'Voluntary relationships'[35] which stipulates that certain sexual offenses do not apply to spouses (unless they are separated), and neither do they apply to unmarried cohabitants. These are offenses that deal with situations where the lack of consent is due to the incapacity of consent of the victim, including where the victim was drugged by the perpetrator. These situations which are excluded from prosecution are where the victim was "mentally impaired, mentally incapacitated, or physically helpless". The term "mentally incapacitated" is defined as a person who "under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration". (see Article 609.341 for definitions).[36]
In Michigan, Section 750.520l excludes situations where the criminality comes solely due to the spouse being "mentally incapable, or mentally incapacitated."[37] Section 750.520a Definitions reads: '"Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.'[38]
Connecticut has a specific crime dealing with forced sex with a spouse and this doesn't apply only to spouses but also to unmarried cohabitants. The law is more narrow than the other sex laws and it has a shorter penalty. It is called Sec. 53a-70b. Sexual assault in spousal or cohabiting relationship and it reads:[39]
No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.
The spousal rape law of Connecticut makes reference to force used or threatened against the "other spouse or cohabitor" while the 'ordinary' sexual assault law deals with force used or threatened against the "other person or against a third person".[39]
South Carolina represents the most extreme situation. Not only is marital rape punished less severely and the victims have only 30 days to report, but the law requires a higher level of violence to be used. The law, titled "Spousal sexual battery" reads as follows:[40]
(A) Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.
I would have just posted the Wikipedia link but I couldn't get it to work. Here it is:
https://en.wikipedia.org/wiki/Marital_rape_(United_States_law)
= new reply since forum marked as read
