In The History of the Pleas of the Crown 17th century English lawyer and judge Sir Matthew Hale wrote:
But the husband cannot be guilty of a rape committed by himself upon his
lawful wife, for by their mutual matrimonial consent and contract the wife hath
given up herself in this kind unto her husband which she cannot retract.
According to Hale, a husband is entitled to sex from his wife, the signing of a marriage contract means a wife gives her ongoing consent to sex, and a wife cannot retract her consent so long as she remains married. In other words, husbands have a marital rape exemption. By virtue of being married, a husband has the right to demand and engage in sex with his wife, regardless of her wishes. Marital rape exemptions in the United States, which can trace their roots back to Hale’s treatise, were included in the criminal code of all U.S. states for most of the country’s history. In 1976-200 years after the founding of the United States-Nebraska became the first state to abolish the marital rape exemption, with other states following…very…slowly. North Carolina and Oklahoma became the last states in the nation to remove their marital rape exemptions-in 1993 (27 years after Nebraska).
Unfortunately, while the courts have criminalized marital rape, deep-seated cultural and religious beliefs about married women continue to persist in our culture. These sexist and misogynistic beliefs make it difficult for many people to recognize sexual coercion in marriage (thanks a bunch Sir Matthew Hale, for your role in perpetuating sexism and misogyny). As a result, despite the elimination of the marital rape exemption, the crime is infrequently prosecuted.
Though infrequent, prosecution for marital rape does happen. For Rep. Brian Greene of Utah, this is cause for concern:
A Utah measure seeking to make that legal clarification won early approval in a state legislative committee Tuesday, but some lawmakers qualified their support, questioning whether the law would designate sex with an unconscious spouse as rape.
“If an individual has sex with their wife while she is unconscious … a prosecutor could then charge that spouse with rape, theoretically,” said Rep. Brian Greene, R-Pleasant Grove.”That makes sense in a first date scenario, but to me, not where people have a history of years of sexual activity.”
Rep. Greene clearly holds the same disgusting, misogynistic beliefs about a woman’s “wifely duties” as Sir Matthew Hale. And he’s just as fucking ignorant. If your wife is unconscious, she cannot consent. Sex without consent is the very definition of rape. Marital status does not change that definition. Husbands are not entitled to sex from their wives and wives do not owe their husbands sex (or anything else for that matter). Whether you engage in non-consensual sex on the first date, or after 10 years of marriage it is still rape. It doesn’t magically become NOT rape if a husband has non-consensual sex with his wife. Thankfully, decent human beings spoke up in opposition to Greene:
Others disagreed. If a person is unconscious, having sex with him or her “is rape. Period. End of story,” said Rep. Brian King, D-Salt Lake City. “Let’s make the statute clear. Let’s not dance around it.”
According to prosecutors, “consent is a decision that has to be made at the time of the act,” said attorney Donna Kelly from the Utah Prosecution Council. “You cannot give consent to sexual activity if you’re unconscious.”
Utah’s current law doesn’t adequately protect victims, advocates and others told the House Judiciary Committee at the Capitol on Tuesday.
“This is something that’s been a long time coming,” bill sponsor Rep. Angela Romero, D-Salt Lake City, said after the meeting. “At the end of the day, if someone’s unconscious or they’re a vulnerable adult, then the logical answer is: Don’t try to have a sexual relationship with them.”
Lawmakers parsed HB74 to understand the implications for sex between partners, husbands and wives and those who may be incapacitated by mental disabilities, medication or surgery. The legislation aims to clarify the definition of consent in sexual assault cases.
“I’m not at all trying to justify sexual activity with an unconscious person. It’s abhorrent to me,” Greene said. But he questioned whether sex with an unconscious person should be “rape in every instance — dependent only upon the actor’s knowledge that the individual is unconscious. That’s the question. That’s what I struggle with.”
If you’re trying to question whether non-consensual sex is rape, then you are arguing that not all rape is bad, and you have utterly failed to be a decent human being. I wonder if Rep. Greene’s Mormon beliefs play a role in his odious views on marital rape.
Nah. I’m sure there’s nothing in Mormon doctrine that says the husband is entitled to sex from his wife, or that a wife is duty bound to give her husband sex when he wants it regardless of her desires.
If you have been the victim of sexual assault or if you are a family member or friend of someone who has been victimized, please call the National Sexual Assault Hotline at 800-656-HOPE (4673) or visit them online for secure, free, and confidential help.