Last fall, Susan Lee, a senator in the Maryland legislature, pre-filed a bill for this year’s legislative session that she hoped would finally close loopholes in how her state prosecutes spousal rape. In Maryland, a person cannot be prosecuted for certain sex crimes — including second-degree rape and third- and fourth-degree sexual offenses — if the victim is unable to give consent and was married to the person at the time. Lee wanted to remove the exemption.

“It’s pretty crystal clear to me,” Lee said. “Just repeal marriage as a defense to sex crimes.”

But the issue appears to be murkier for some of Lee’s legislative colleagues. The Democratic senator filed the same bill a year before, and lawmakers only advanced it out of one legislative chamber. In 2019, a similar bill didn’t make it out of a legislative committee. Along the way, Lee — like other lawmakers across the country trying to pass similar laws — heard arguments that essentially questioned if victims could be trusted to tell the truth. 

Spousal rape is a crime in all 50 states. Beginning around the 1970s and into the early 1990s, legislation and court rulings reversed centuries of policy that often legally defined rape as the forcing of sexual intercourse on a person “other than the wife” of the accused.

“It goes back to British law and the concept that women were the property of their husbands and their personal rights were suspended while they were married,” said Christina Dardis, an assistant professor of psychology at Towson University who has studied sexual and intimate partner violence. She submitted testimony in support of Lee’s bill.

But while many states and U.S. jurisdictions explicitly prohibit marital exemption to rape and sexual assault laws, many of those same states exempt spouses from particular offenses in various areas of state statute, according to AEquitas, a nonprofit that works to improve prosecution of gender-based violence. 

Many loopholes are based on variables like age (the age of the victim, the age of the offender or both) and the ability of a victim to give consent (in some states, those accused of raping a spouse without use of force because the partner is unable to give consent cannot be prosecuted (examples include a person who has a cognitive or physical disability; is unconscious, asleep or otherwise physically helpless; is intoxicated or impaired by a substance). Some exemptions consider the relationship between the offender and the victim (custodial, therapeutic or academic relationships where one individual has a position of authority).

Legislation around consent has received a lot of attention in recent years. As of April 2020, 19 states and jurisdictions have such statutory exemptions for spouses, according to AEquitas. The group also estimates 11 states and jurisdictions have statutory or case law exemptions for certain sexual offenses committed against “competent adults” — meaning cases where a survivor is capable of giving consent.

Bills that propose to eliminate exemptions in spousal rape cases have circulated in statehouses for years, with gradual success. In 2019, Minnesota’s governor signed a bill into law that removed a loophole that prevented prosecution of a spouse because of consent limitations. The legislation followed the lobbying efforts of a woman who was unable to file assault charges against her husband, who she was divorcing after she discovered video that showed him sexually assaulting her while she lay unconscious and drugged. In one video, the couple’s young son is nearby on the bed.

And there is movement as public awareness grows about the loopholes — this week, lawmakers in California and Ohio held public hearings on related legislation.

But while some legislators have removed archaic language with bipartisan support, others have stalled legislation in part by perpetuating rape myths. 

“One can only look at the existence of exceptions for victims who are married to their perpetrators as reflecting a viewpoint that this is ‘rape light,’ that this is somehow not true rape, and perpetuating that a spouse cannot be raped,” said Jennifer Long, chief executive officer of AEquitas.

The data on how often a person rapes a spouse is limited because survivors do not always report the crime. The Centers for Disease Control and Prevention estimates about 1 in 4 women and nearly 1 in 10 men have experienced “contact” sexual violence, physical violence, and/or stalking by an intimate partner during their lifetime and reported some form of related impact. The CDC defines “intimate partner” as both current and former spouses and dating partners. Studies estimate between 10 percent and 14 percent of women are raped in a marriage. The agency does not collect data for nonbinary individuals.

Lee’s bill aims to eliminate statutes in Maryland law that currently limit victims’ legal protections if they are drugged, cognitively impaired or mentally incapacitated at the time of the offense. During debate of her legislation in 2020, prosecutors pointed to a case in Maryland involving a man who was accused of raping his incapacitated wife and filming her. He could not be prosecuted under the full scope of sex crime laws because the couple was married.

“It’s incredibly disturbing that we could not prosecute the individual for all of those counts of rape that he perpetrated on his wife,” said Debbie Feinstein, chief of the Special Victims Division of the Montgomery County State’s Attorney’s Office, during testimony.

At a virtual hearing in January, Lee was peppered with questions from other state senators about the effects of the legislation on consent in marriage.

“The issue is, can a spouse lie in bed next to the other spouse and without announcing anything slide their hand onto an intimate area of their body?” state Sen. Bob Cassilly asked during the hearing. “Because under your bill the minute you do that you have committed a fourth-degree sex offense.”

Cassilly, a Republican, made a similar point when the bill had a public hearing in the previous legislative session. Carrie Williams, an attorney with the Maryland Attorney General’s Office, which supported the bill, explained to Cassilly during the January hearing that his hypothetical was not sufficient evidence for the state to prove a lack of consent. Cassilly did not return a request from The 19th for comment. 

Republican Sen. Jack Bailey, another lawmaker at the January hearing, at one point wondered if written consent would be needed for sexual contact in a marriage.

“We all know in responding to many different assault cases, people change their mind: ‘Yes. I said ‘OK.’ But as things went on, ‘No I didn’t.’… Are we going to have a written consent form that is going to be required by the day, by the week, by the month? … I just want to know where this is headed.”

Bailey did not respond to a request for comment.

In California, Democratic Assemblymember Cristina Garcia co-sponsored a bill that would eliminate spousal rape exemptions that allow a person to face no legal repercussions for raping a spouse who is unable to give consent to sex because they have a physical or mental disability, including suffering  a stroke or traumatic brain injury. California law also allows a judge to give probation instead of jail time for spousal rape, and a spouse may not have to register as a sex offender.

“This seems pretty straightforward,” Garcia said. “At a minimum, we should have parity in the law.” 

But California Assemblymember Reggie Jones-Sawyer, a Democrat who chairs the public safety committee that must advance the bill, initially sought to lessen the scope of the legislation, according to Garcia. He told the San Francisco Chronicle that he feared the disproportionate effects of the legislation on Black and Brown men. He added that he would prefer to give judges discretion and wants a law that “does not dismantle family units due to false accusations.”

Dardis at Towson University described many of the hypothetical concerns raised by lawmakers who question the need to close loopholes as myths perpetuated within a patriarchal culture. It makes assumptions about what counts as rape and who is a “proper or acceptable” rape victim. She said there are myths that survivors often lie about being raped or make false reports as retaliation even if available statistics do not reflect that.

“I think a lot of this often comes from people’s desires to believe that the world is fair and just, and they’re fearful of it happening to them or those close to them,” she said of policymakers. “And so they hold out these beliefs, because it makes them think this is someone else’s problem. If you blame the victim, then it’s less threatening and scary for you.”

Statehouses are addressing other loopholes, too. This year, the Oklahoma legislature unanimously passed a bill that redefined rape as stating that someone can be sexually assaulted “within or without the bonds of matrimony.” The legislation, which the governor signed into law in April, removed language in state law that said rape did not occur if the victim “is the spouse of the perpetrator.” Idaho lawmakers this year also passed a bill that eliminated exemptions to the criminal definition of rape based on marriage.

There have been recent hopeful signs for advocates. 

Since 2017, Ohio Democratic Rep. Kristin Boggs has advocated for legislation that would eliminate spousal exemptions in certain sex crimes including rape. It would also expand the power of a person to testify against their spouse in prosecutions for any sex offense (in some states, spousal testimonial privilege limits this). This is the first year that Boggs’ legislation in Ohio has received additional public hearings, one of which was held Wednesday.

Boggs said some lawmakers have expressed concerns privately to her about whether such legislation could lead to false rape accusations in divorce proceedings.

“I don’t know if they think it’s going to result in these unfair convictions, or if they are afraid that someone is going to be falsely indicted but then proven innocent,” she said. “It really doesn’t land with anyone who understands how the criminal justice system works.”

Jones-Sawyer, the assemblymember in California, did not respond to a request for comment. But his office released a statement recently expressing support for Garcia’s bill after meeting with the Prosecutors Alliance of California, a group of state district attorneys. A public hearing to advance the bill out of his committee was held Thursday, and lawmakers passed it unanimously.

Michele Dauber, a Stanford law professor who advocates for eliminating spousal rape exemptions in California, called the recent movement with Jones-Sawyer promising and a sign that people can change their minds with education. But the legislation’s chances remain unclear in the state Senate, where another key lawmaker, state Democratic Sen. Steven Bradford, has not expressed public support for the legislation and has not responded to requests to meet with Dauber and organizers. Bradford did not immediately respond to a request for comment.

Dauber called spousal rape exceptions “a pure example of patriarchy in American law.”

“We’re really trying to clean up that history and remedy a historical wrong,” she said. “We’re simply asking for equality for married victims of sexual violence.”

Long with AEquitas said repealing loopholes to fully protect the legal rights of victims of sexual violence is one step. She noted prosecutors sometimes choose not to pursue related cases even if statute gives them the ability to do so, which is part of her group’s work to educate them.

“That will not, in and of itself, solve the problem,” she said. “It’s an important piece of it. However, you then still need to be able to create a system and a society that will implement the laws, and will not informally decide that because someone was married, they really consented, or it wasn’t really rape. You’re still going to have to overcome those biases.”

The Maryland bill, despite advancing out of the state House of Delegates chamber, died this year, again. Lee plans to reintroduce it. She said that until the legislation is signed into law, the loopholes in Maryland support a culture where marriage is consent to sex, and a married person has less legal protection than an unmarried person.

Lisae Jordan, executive director and counsel of the Maryland Coalition Against Sexual Assault, agreed. She said people often express shock when they learn that marriage is effectively used as a defense to sexual violence under the law.

“There is just a belief that we’ve made more progress than we have,” Jordan said.