No Exceptions: California Works to End “Spousal Rape” Separation

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The US and California have made huge strides in the past several decades. Modern laws have replaced older, restrictive, and bigoted policies. Today, human rights are protected more than ever before, and more people receive the benefits of that protection.

That doesn’t mean California is perfect, of course. There’s still work to be done. For example, California is one of eleven states in the US that still treats “marital rape” as a crime separate from other types of rape, with fewer and less strict penalties.

While this law is obviously unjust, it’s not being ignored. Multiple California legislators are working to end the distinction. Recently, two identical bills have been brought before the California Assembly and Senate that are intended to consolidate the penalties for all rape charges.

As archaic as this separation may seem, it’s a hold-over from a time not that long ago when rape was not taken seriously. Here’s how the current law was put in place and how California lawmakers are working to change it.

The History of Marital Rape Laws

The history of marital rape laws traces back to 17th century England, in the common law that was the foundation for much of the early US legal code. Unfortunately, in England at the time, it wasn’t considered possible to rape your spouse.

Marriages were supposedly irrevocable contracts that gave husbands the right to have sex with their wives whenever they wanted. This was based on biblical passages that stated that wives and husbands have a “conjugal debt” to each other or owed each other sexual activity. As a result, there was no law protecting either spouse from sexual assault.

The early US legal code was written by people who agreed with this attitude. Before the 1970s, laws regarding rape only applied to people who were not married to each other. Many regulations also defined rape as a man abusing a woman who wasn’t his wife, leaving men completely unprotected.

It wasn’t until 1975 that any state outlawed marital rape when Nebraska overhauled its laws. Other states followed, though at first, these bans only covered spouses who weren’t living together. It took many state Supreme Court battles to find these continuing exemptions unconstitutional.

It wasn’t until 1993 that every state in the union officially considered marital rape a crime. Even then, 33 states still treated it as a lesser offense than other types of sexual assault. Over time, women’s rights activists have campaigned to ensure all sexual assaults are treated equally. Today, only 11 states continue to treat spousal rape differently.

The New Bills

When California legislators Sen. Dave Cortese and Assemblymembers Cristina Garcia and Evan Low realized the gap in California law, they immediately took action. The trio co-authored a bill that they presented to the state Assembly and Senate. It’s known as Assembly Bill (AB) 812 and Senate Bill (SB) 530 in the respective branches.

The proposal is simple. As stated in each document, “This bill would repeal the provisions relating to spousal rape and make conforming changes, thereby making an act of sexual intercourse accomplished with a spouse punishable as rape if the act otherwise meets the definition of rape.”

Essentially, spousal rape would no longer be a unique crime. All rapists would face the same penalties, regardless of marital status.

This significantly increases the potential penalties for spousal sexual assault. Currently, consequences for this crime can include:

  • The potential for eight years in prison,
  • Status as a felon,
  • A $1000 fine payable to a women’s shelter,
  • Restitution for counseling and other reasonable expenses the assault made necessary

However, spousal rapists may be eligible for felony probation. This not only means that many rapists avoid prison, but it also means that they can go on to threaten their former spouse again. Without a restraining order, that can put victims in serious danger.

This pales in comparison to the penalties for non-marital sexual assault. A person convicted of this crime can face:

  • Three to eight years in prison,
  • Status as a felon,
  • A fine of up to $10,000

Once convicted, these people must also register as sex offenders, which is not required of spousal rapists. Finally, non-marital rapists are not eligible for felony parole if convicted.

The difference in how California penalizes the two crimes is stark. If the bills are passed, however, all people who commit sexual assault will be accountable for the same, higher penalties.

What This Means for Married People

AB 812 and SB 530 might mean all the difference to people facing sexual assault in their marriages. Leaving a marriage is rarely easy, and an abusive spouse only makes it more challenging. The current less-strict penalties may leave some victims too scared to break away.

However, if the new bills are passed, people who have survived marital rapists could have more confidence in the legal system. Instead of worrying that their partner might receive parole, they will know a conviction will likely lead to prison time. That alone will help victims feel safer in leaving their spouses.

On a broader level, these bills are intended to signal something important: marriage is not a free pass. When the law clarifies that no one is immune from sexual assault penalties, the crime may be taken more seriously. Courts and law enforcement alike will hopefully take accusations of domestic violence and sexual assault more seriously and charge perpetrators appropriately.

You Don’t Have to Stay

Regardless of whether the California Legislature passes these bills soon, rape is already considered a serious crime. No one should feel trapped with a partner that sexually abuses them, regardless of marital status. No matter how the law defines it, sexual abuse is always grounds for divorce.

If your spouse has hurt you, you deserve to get out. Reach out to an experienced divorce attorney today to discuss your situation. The right attorney can help you decide whether you need emergency orders to speed up the divorce process and keep you safe or to just end your marriage as soon as possible. You deserve a life and a relationship where you’re safe; take the next step toward that life today.

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