Marital Rape Is Still Legal in Some Countries and Still Happens in the U.S.

The sad truth is, it probably occurs more often than we’ll ever know.

David Wise. (Photo: Indianapolis Metropolitan Police Department)

May 21, 2014· 3 MIN READ
Hayley Fox is a regular contributor to TakePart who has covered breaking news and the occasional animal story for public radio station KPCC in Los Angeles.

Mandy Boardman reported being drugged and raped and having some of those sexual assaults videotaped over the course of at least three years. Although a court found that all of those acts were committed by her husband in the purported safety of her home, her spouse, David Wise, won’t be doing any jail time.

A jury convicted him of six felony counts—rape and five felony counts of criminal deviate conduct—and last week he was sentenced to 20 years, but more than half of that time was suspended. Wise will spend the remaining eight years in home confinement, a move one is left to suppose was designed to keep him safe from prison.

Understandably, Boardman is outraged.

“Somebody who premeditates what he’s doing to me, over and over again, for three-plus years, in my own home, in my own bed, by somebody I trusted fully, 100 percent, deserves to spend a great deal of their life in prison to pay for it,” she told the Los Angeles Times.

The reality, however, is that many perpetrators of rape—marital or otherwise—don’t ever face a jury. Rape is one of the most underreported crimes in the country, and women raped by their husbands may face additional hesitation because of loyalty to him or fear of retribution.

“Most rapists get away with rape regardless of whom they’re raping,” said Kristen Houser of the Pennsylvania Coalition Against Rape.

Recent statistics show that about 9.5 percent of women in the United States reported being raped by a current or former romantic partner, according to a 2011 report from the Centers for Disease Control and Prevention. This self-reported national survey was conducted by telephone and included 60 questions regarding sexual and intimate partner violence.

Unlike Boardman, a lot of women are too ashamed to talk about sexual violence in their relationship and will often seek help initially for other issues, such as domestic abuse, Houser said. In her 23 years of experience,she said, she has only seen a handful of women openly talk about rape by their husbands from the get-go.

Even if the victim comes forward and the case makes it to court, it can be difficult to get a conviction. In the context of a long-term, committed relationship, it can be even harder to prove that the sex wasn’t consensual, and documented injuries may be hard to come by, Houser said. Unless there are kids in the house who overhear something, or there are lasting, gratuitous injuries, the perpetrator is more likely to be prosecuted for related crimes, such as battery.

But a difficult new low was demonstrated in Boardman’s case, where even video footage and email records of Wise’s admissions didn’t guarantee hard time.

“Judges are deemed to be able to use discretion, and that does mean that sometimes they are creating sentences based on their personal opinions that do cause an uproar,” Houser said.

Wise’s sentencing may seem unjust, but at least marital rape is illegal now. It wasn’t until the 1970s that anyone was convicted of raping a spouse in the U.S. Prior to that, criminal codes contained an exemption for the prosecution of spousal rape. This legal protection was furthered by a widely held notion that forced sex between a married couple was just the woman doing her “wifely duty,” and the only legitimate type of rape was that committed by a stranger.

By 1993, every state had made marital rape illegal, either by removing the spousal exemption from existing laws, creating a new law explicitly against marital rape, or removing “marriage” as a viable defense for it.

While it may have taken too long for the U.S. to begin prosecuting marital rape, in many countries it’s still legal: China, Afghanistan, Pakistan, Saudi Arabia, and India, to name a few.

India has come under heightened scrutiny in recent weeks after a panel of lawmakers rejected a proposal to criminalize marital rape. The proposed law to protect women was vetoed because lawmakers said it had “the potential of destroying the institution of marriage” and “if marital rape is brought under the law, the entire family system will be under great stress.”

Even in the U.S., marital rape is often handled differently from other forms of rape. A handful of states have shorter windows for reporting rape by a spouse, as well as lesser sentences if convicted. Marital rape can be equally if not more violent than “stranger rape,” though, often involving forced anal or oral sex, the use of weapons, or severe physical violence, experts said.

Often marital rape is just one facet of a larger problem: domestic violence.

“Historically, the problem has been that we treated these kinds of violence as if they were parallel lines,” said Lynn Hecht Schafran, director of Legal Momentum’s National Judicial Education Program.

Domestic violence can include sexual abuse, and when physical violence is combined with sexual brutality, it’s more than twice as likely the incident will escalate into murder, Schafran said. Real progress will come with the realization that these two forms of abuse overlap, and when service providers are cross-trained accordingly.