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Spousal Rape Case Sparks Old Debate

He attacked around midnight, choking her, dragging her by her hair, brutally raping her over and over again.

But as the husband of his victim, this violent rapist may receive only 1 1/2 years imprisonment and, perhaps, none at all. A stranger committing the same crime could receive 14 years.

Prosecutors in Coconino County, Ariz., think the discrepancy is unconstitutional. Accordingly, they have ignored the state’s marital rape exemption (search) and charged the husband in question under standard rape law.

In doing so, the prosecutors have entered a centuries-old debate on the issue of whether a rape, by definition, can occur between husband and wife.

Spousal or marital rape is usually defined as a sexual attack by a husband or ex-husband. (As with past analyses of domestic violence, in current discussions of spousal rape, women are the victims and men the perpetrators. Although men are now acknowledged to be domestic violence victims as well, no statistics exist on whether they are victims of marital rape.)

Western jurisprudence has a long tradition of absolving husbands from the possibility of rape. The first significant discussion in America of forced sex within marriage being categorized as rape, and of the need for a legal remedy, may well have been "The Markland Letter," which was published in 1887 in a Kansas newspaper.

The letter read, "About a year ago F——— gave birth to a baby, and was severely torn by the instruments in incompetent hands. She has gone through three operations and all failed…last night when her husband came down, forced himself into her bed, and the stitches were torn from her healing flesh, leaving her in worse condition than ever..."

The Markland letter became nationally notorious largely because its graphic description of violence left little doubt that the husband was a rapist despite the law.

American law did not catch up with the Markland letter until 1976. Until then, rape laws throughout the states included a Marital Rape Exemption. In 1976, however, Nebraska became the first state to abolish that exemption.

Today, spousal rape is illegal in every state. Nevertheless, many states retain vestiges of the marital exemption. For example, the punishment prescribed for spousal rape is often lighter than for other types of rape and the standard of evidence required to convict is often higher.

Arizona is currently wrestling with such a vestige and confronting the question of whether the law should treat spousal rape differently from stranger or acquaintance rape.

On a fundamental level, the answer is clearly "no." Rape is a crime, and the marital status of the victim should make no difference. A husband who rapes should receive the same punishment as any other rapist. After all, a person who murders his or her spouse is still a murderer and subject to the full force of law.

On a procedural level, however, it may be necessary to draw an important distinction between spousal rape and stranger or acquaintance rape.

Namely, if there is no clear evidence of violence, then the standards of proof required to find a spouse guilty of rape may be higher.

If evidence of violence is present, then no procedural distinction between spousal and stranger rape is appropriate. An attack is an attack, and should be viewed as such.

The difficulty arises when there is little or no evidence of violence and, so, the accounts devolve into "he said/she said" scenarios.

At that point, the sexual history between a ‘victim’ and an accused rapist becomes relevant to judging credibility.

One of the ways marriage can be described is as a sexual partnership. Wedding vows constitute a public announcement of that sexual union, of an agreement to engage in sex with someone else over a period of time. This is why not consummating the union is grounds for dissolving the contract, even within the Catholic Church, which does not recognize divorce.

Marriage does not mean that a wife renders prior consent to every sex act or any particular one. Indeed, the presence of force in the marriage indicates that consent prior or present is entirely absent.

But, in contrast with stranger or acquaintance rape, the fact that sex has occurred in a marriage provides a court with no indication that a rape has occurred. This affects the weight given to evidence. For example, matching a husband’s DNA to a semen sample makes no sense; you would expect his DNA to be present.

Thus, when indications of violence are absent, it is reasonable for the legal system to require a higher standard of evidence to convict a husband of rape.

The preceding statement will seem uncontroversial to some. To others — especially to those who agree with the traditional feminist approach to rape supported by groups like NOW, which dominates feminism and much of our culture— the statement will be heresy. Merely suggesting that some standards of evidence on rape should be raised will be viewed as a "pro-rape" stance.

Rape is the third rail of feminism and touching the issue with anything but complete agreement with the accepted approach will give the questioner a nasty shock. But if the gender war that is the legacy of NOW-style feminism is to be eased, then every gender-based assumption must be re-examined.

In updating the law on spousal rape, prosecutors in Arizona should punish that crime no differently than any other rape. But, in proving the rape, the courts should apply a higher standard of evidence whenever indications of violence are not present.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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