Discussion: How 20 States Came To Treat Spousal Rape As A Lesser Rape

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Discussion for article #238909

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“There were significant family and criminal law reforms in the ‘60s and
‘70s—no-fault divorce was granted and the corroboration requirement for
rape victims was abolished”

Corroboration requirement? Does that mean a third party had to witness the rape? That there had to be obvious defense wounds? Or what? Yet another reason why women are only now daring to mention rapes that occurred decades ago. Even without a legal corroboration requirement, prosecutors and juries (and the general public) seem to mostly start by assuming the woman is lying unless there is clear outside evidence.

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Excellent review. Well written.

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So suppose your lawfully wedded spouse is sleeping and you wish to have sex. . For reasons of efficiency you caress their sensitive areas in the hope that this will both wake them and put them in the mood. However, since they are asleep they are unable to consent to this. Is this rape?

Such a case is not likely to appear in court, but we recently did have the case of the man who had sex with his Alzheimer’s affected wife in her nursing home.

While a public, signed, witnessed vow does not mean anytime, anyplace unless there has bee a finalized divorce decree, it surely means SOMETHING.

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If it wakes but doesn’t arouse them and you continue over protest, that is rape.

Minimally the vows between you should mean that you will not be raped.

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That, or other independent evidence. Under old coverture law, women’s testimony did not carry much weight in any legal proceeding.

In practical modern life, corroboration is usually needed to get jury conviction. But it is no longer required by statute in order to bring a case.

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This is what consent looks like…

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So WHICH states? Other than those listed specifically in the article???

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That’s cute but are you really going to criminalize caressing a sleeping spouse?

"I X take you Z as my lawfully wedded " does not mean X consents to anything Z might come up with but it ought to mean SOMETHING.

The cases that bother me are the dementia cases. I want issues of consent to be determined by spouse the person chose while competent not by the head of the nursing home who probably got chosen for her.

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I didn’t know about coverture law – it explains a lot about the horrific victim denial that is still so prevalent.

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You aren’t criminalized unless your wife files a criminal complaint. If she would even think about responding that way, I’m sure you’d know – and of course would wake her up first & ask. Funny how this theoretical non-problem becomes an argument against spousal rape laws.

As for what wedding vows mean, mine included “to love and to cherish”. That means a lot, and it excludes anything that my wife would experience as abuse.

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I don’t know, this article makes me a bit queasy, and even queasier on account of the strange silence from TPM’s usual band of hardy and, judging by their noms de plume and occasionally testosterone-laden comments, largely male posters. How is it that the mundane and utterly predictable screwups of Scott Walker, Ted Cruz et al. can attract hundreds of comments and this far more important topic a mere eleven? Somehow I don’t think we’re passing the smell test here. Well, someone has to do it, so here goes.
After an instructive historical overview the author goes on to say: “It is estimated that one out of every seven or eight married women has been subject to rape or attempted rape by their husbands.” A horrible statistic, no doubt, although it would be nice to know just who estimates this figure, exactly. No such luck. But let’s take it at face value anyway: in the author’s judgment should that 12-14 percent of American husbands be serving 10, 20, 30 years’ prison time? Don’t we have enough people incarcerated already? Because what other recourse could there be if “rape is rape, whatever the relationship between the offender and the victim”?
Prof. Godsoe goes on to say that “the stigma and questioning that victims still encounter makes it unlikely that many will falsely report.” Well, aside from the fact that “victims” falsely reporting are not, in fact, victims at all, that is reassuring news. So sweet dreams, BostonianBrooklyn, Prof. Godsoe is looking out for you. Your unwelcome caresses in the dead of night will not land you up in court, and if perchance they do, well, fear not: the courts are qualified to intervene in your “intimate squabble”. Maybe not so much about that little fact of your name being dragged through the mud for all and sundry to see and your career possibly damaged forever, but who cares about details?
But we’ve been through this movie before. Prof. Godsoe may be too young to recall the gross abuses of the “remembered” childhood pedophilia cases of the 1980s and ’90s but as a law professor she cannot be excused from such ignorance. Uncovering her cards even more, she goes on to talk about the “encouraging reforms” adopted in the California and New York state university systems. When I described “affirmative consent“ to my Italian partner of 33 years over dinner she had this to say: “Ooh, romantic.”
Precisely. Any sentient being knows there is a strong and recurrent Puritanical undercurrent in American life that periodically resurfaces. It is more typical of the American right but we on the left are far from immune to it. And this is what I smell in Prof. Godsoe’s contribution. In fact it reeks to high heaven. In her book it’s apparently all fine and dandy for American male college professors to have to keep their doors open when conversing with their female students (and perhaps even male students, who knows), terrified as they are of being accused of impropriety. For grades. Not billions, not millions, not even thousands of dollars: grades. All normal signs of a healthy society, though, right? Pooh. I wonder if Prof. Godsoe has to close her door when she talks to her law students.
I am not comfortable with the government, any government, barging into my bedroom and adjudicating whether intimacy was consensual or not (is there a realm of human behavior that is less fluid?), and even less so with a law professor who blithely dismisses fears of unsubstantiated claims as “unlikely”. Unlikely until you end up in court, that is. Then heaven help you, because, as we all know, judges, juries and justices never err.
Life is messy, untidy, full of contradictions and human frailties, perhaps even more between couples than in other areas. Much as Prof. Godsoe would like it to be so, it doesn’t fit into her neat, reductive, and ultimately unjust pigeonhole of “rape is rape”.

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I guess that we lawyers can refer to this imbecilic qualifier in rape laws as “The Trump Exception?”

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The G.W Bush era appointee to the FDA women’s health panel Dr. David Hager has some experience in this regard.
From the Nation:

“By 1995, according to Davis’s account, Hager’s treatment of his wife had moved beyond morally reprehensible to potentially felonious. […] For the next seven years Hager sodomized Davis without her consent while she slept roughly once a month until their divorce”.

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Your wife would have to file a criminal complaint before the government got involved in any way. No complaint, no crime.

This issue is simply this: if your wife claims that you abused her physically, can she also claim that you raped her, or not? Either way, you would be innocent unless proven guilty.

Oh, and about juries erring? Yes – but practically all rape trials end in acquittal, even when it’s a stranger, so it’s not against YOU that the error would occur.