The Washington PostDemocracy Dies in Darkness

Nearly half of states treat married women differently when it comes to rape

Donald Trump's lawyer was wrong about what the law views as rape. (Danny Johnston/AP)
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On Monday, a top adviser to Donald Trump told the Daily Beast, "there's very clear case law" that a man cannot rape his wife.

Of course, that isn't remotely true. Spousal rape is illegal in the United States.

“It’s absolutely shocking to hear an attorney say something like that in this day and age,” said Emily Martin, general counsel at the National Women’s Law Center.

[Trump’s lawyer defended him by saying you can’t rape a spouse. That’s not true.]

But Cohen wasn't referring to some medieval indignity. Only in 1993 did sexual assaults within marriage become outlawed in every state. And nearly half still don't offer married women the same protections granted to single women.  

At least 23 states make it harder for a wife to accuse her husband for rape. Some states require clear evidence of violent force. Others give married women a smaller window to report an assault. Many dole out lighter punishments to convicted husbands.

In Oklahoma, for example, a man can have sex with his unconscious wife as long as the couple is not separated. In Ohio, a man can drug his wife and then legally have sex with her.

Both actions would be considered criminal if done to a single woman.

As recently as this year, lawmakers have been pushing to change that. “It is time to bring Ohio out of the Dark Ages and into the 21st century where rape is never acceptable and all survivors have unfettered, equal access to justice,” Ohio state Rep. Greta Johnson (D) wrote in January for the Columbus Dispatch.

Four decades ago, women’s rights activists started gaining momentum in the fight to abolish the "marital rape exemption." New York, where Trump adviser Michael Cohen practices law, was the first state to strike it down in 1984.

Cohen's inflammatory comments this week were prompted by a two-decade-old accusation that Trump raped his ex-wife Ivana. The claim, which Ivana now denies, came from a deposition during the couple's divorce, published in the 1993 book "Lost Tycoon: The Many Lives of Donald J. Trump." (Find the details here.)

“You’re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody,” Cohen said. “And, of course, understand that by the very definition, you can’t rape your spouse.”

After near-instant backlash, Cohen said in a statement that he didn't actually mean it:  “In my moment of shock and anger, I made an inarticulate comment — which I do not believe — and which I apologize for entirely."

Legal scholars trace the roots of marital rape exemption to Sir Matthew Hale, a prominent judge in 17th century England, who wrote in a famous treatise:

“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 the husband which she cannot retract.”

This declaration enforced the idea that a wife was the property of her husband. Her body, quite literally, belonged to him. Hale's words have been cited in thousands of cases across England and the U.S., said Jill Hasday, a professor at the University of Minnesota Law School and author of "Family Law Reimagined."

“Today, as in the 19th century," she said, "married women do not enjoy the criminal law’s full protection from rape."

The Centers for Disease Control estimate that at least 2 million women per year experience sexual abuse at the hands of an intimate partner. Ten to 14 percent of ever-married women surveyed during a 1998 study at the University of New Hampshire reported at least one sexual assault by a husband or ex-husband.

Scott Berkowitz, president of the Rape, Abuse and Incest National Network, said the organization hears often from women who’ve endured sexual violence at home. He called Cohen’s comments “absurdly behind the times.”

“The reaction of every survivor is different,” Berkowitz said. “One thing you hear from a lot of victims who were raped by a spouse is: The person they trusted hurt them. There’s all the psychological pain that comes from an assault with an additional sense of betrayal."