In most American jurisdictions, a man cannot rape his wife. Not because it is illegal, but because it is legally impossible.
Once a woman marries a man, she can no longer say "no" to his sexual advances and expect the law in places like Virginia or Maryland to back he up. The very definition of "rape" under the common law says that it is "sexual intercourse committed by a man with a woman not his wife and without her consent. . ."
There are a few states, however, that have extended rape laws to protect women from their husbands, and at least two such cases have gone to trial. The Rideouts in Salem, Ore., made national news when they were the first couple to go to court under a "marital rape" statute, and James K. Chretien was convicted last September in Salem, Mass., of raping his estranged wife.
Commentators have given considerable attention to the issue, alternately calling it a milestone in women's rights and a dangerous instrusion into the marital bedroom. One side sees the issue as protecting a woman's autonomy over her own body. The other warns that government is overstepping its bounds if it ventures into the sexual relations of man and wife.
How did these come to be seen as conflicting interests? The two sides in this debate are in a false confrontation over the wrong issues.
Advocating the right of a wife to prosecute her husband for rape is not tantamount to suggesting government regulation of sexual conduct. A marital rape law would not interfere with the sexual exploits of consenting adults. Only when a party does not consent to the sexual encounter would the government ever get involved.
It is the question of consent that raises the troublesome issue. Marriage, under the current rape laws, is a woman's promise of perpetual concent. The idea that a wife might say "no" to her husband is unthinkable in the eyes of the law. But then, the law often finds it difficult to imagine a woman saying "no."
The Maryland Court of Special Appeals ruled recently, for example, that a woman who was only being "lightly strangled" had given her consent when she stopped struggling against a stranger's sexual advances. Certainly, if that can be adequate consent, why not marriage?
The element of consent in a rape case -- "marital" or not -- presents difficult questions for some juries to onsider. The current rape law, however, is flawed not because it exempts married men and their wives, but because it considers marriage at all .
In today's society, the trend is toward recognizing many relationships as having the same status as marriage, even if the government's blessing -- a marriage certificate -- has not been sought.
"Living with" has become as acceptable in many circles as "married to," and the law has begun to reflect this change. Cohabitation laws prohibiting men and women from living together "out of wedlock" have been dropped from the books; alimony rights have been extended to non-married partners; and alterations in the tax laws have been proposed to eliminate the marriage penalty tax.
If spousal immunity is dropped from the rape laws, married couples will be put in the same position as couples "living together". A woman who has lived with a man for years in an intimate, marriage-like relationship can bring charges of rape against her mate. It might be difficult to prove that she didn't consent to intercourse with her lover, given the current mentality of the courts, but she can bring charges. The woman who married her mate cannot.
Eliminating spousal immunity will not make it easy -- it never will be -- for a wife to get a rape conviction against her husband. The change will just make the charge possible. By the same token, the government will have no more of a license to peek into our bedrooms than it does now. It will venture in only when invited by a woman who feels that her husband has assaulted her.
The spousal-immunity provisions should be repealed so that the government does not treat couples differently on the basis of their marital status. It is the government's role in marriage that is at issue here, not women's rights or rape law.
When the government separates the question of marriage from the issue of rape, many controversial issues will remain, but it will be easier to bring them into focus. The real issue here is not whether a wife should lose her right to say "no" to her husband. The issue is whether a woman should ever lose her right to say "no."