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Commentary Justice

Opinion: Why is it still legal to rape your spouse in Maryland?

The Maryland State House. Photo by jonbilous / stock.adobe.com.

By Chris Apple

The writer is a volunteer advocate.

Sexual assault should be illegal, and marriage should be no defense — it’s an ideal the U.S. has been working toward since the 1970s, when states began outlawing marital rape. In Maryland, loopholes still exist that let people get away with assaulting their spouses. Fortunately, efforts to close those loopholes are intensifying.

In the February Zoom hearing about this proposed repeal, faces were somber. Advocates talked about the gruesome ways people have found to exploit these loopholes. Under current Maryland state law, marriage is a total defense to fourth-degree sexual assault — even if the spouse is injured in their intimate areas, even if the contact is abusive, even if the married couple are living apart in a trial separation.

More extreme assault, including rape, is permitted if the spouse is incapacitated. Advocates went into painful detail about cases where spouses were unconscious, sometimes drugged. To be considered sexual assault, the assailant must use or threaten force, or the victim must explicitly withdraw consent. But under Maryland law, an incapacitated person has not withdrawn consent, and the assault does not meet the legal definition of force because the victim was unconscious.

All of these are real cases shared by state’s attorneys who tried to prosecute these crimes, only to find that the perpetrators hadn’t done anything illegal. Those survivors, likely facing ridicule and threats for going public, did not get the justice they deserved.

But they would have gotten that justice if they were unmarried. Only the laws for married people have these loopholes. If those survivors hadn’t been married, if it was an intimate partner who did these things to them, it would have met the definition of sexual assault. The exact same acts, perpetrated between unmarried persons, are crimes in Maryland.

The effort to repeal these loopholes has been going on for several years. At its core is the value we place on consent and a repudiation of the notion that marriage itself grants that consent. In the time before the founding of the U.S., the law held that men assumed control over the legal rights of their wives. “The husband cannot be guilty of a rape committed by himself upon his lawful wife,” wrote English judge Sir Matthew Hale, “for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

These laws formed the basis for our legal system. But more recently, we as a society have spent decades fighting marital rape laws, fighting for the ideal that married people have the same right to bodily autonomy as everybody else. By repealing these loopholes, Maryland can get closer to that ideal.

The 2022 repeal attempt ultimately failed. It has now failed four years in a row, often because amendments were added to the bill that weakened the protections it hoped to provide. Advocates have pledged to return and fight again in 2023. And now, a grass-roots petition has begun circulating, demanding an immediate repeal to these loopholes. 

On the streets, people express shock and disgust when they learn about this law. “We’re one of those states?” exclaimed one petition signer. And as circulators went door-to-door, signers began to share their own stories: repeated assaults by intimate partners, family members, neighbors. Assaults in the dead of night, while the victim was exhausted and delirious. Some of these stories echoed those shared by the state’s attorneys, hinting at the plain truth that marital assaults are much more common than what we see in that hearing room. As many as two-thirds of sexual assaults are never reported.

The petition’s circulators aim to collect as many signatures as possible, and will deliver it to Maryland lawmakers in advance of the 2023 repeal hearing for this law. Maryland voters can read and sign the petition at mdspousal.com.

Marriage does not change how consent works. A wife is not the physical property of her husband, and married people need the same sexual assault protections as everybody else. Current Maryland law takes away a spouse’s right to consent — it mandates their consent, whether they’re actually willing or not. It’s time to finally change that.