Table of Contents
Eliminating the Marital Exemption Defense for Charges of Spousal Rape
Washington, like many states, rejected being married as a defense against first and second-degree rape in the 1980s (Barnhill & Kennedy-Begen, 2006). Yet until 2013, if the rapist was a spouse, ‘But we’re married!’ was a perfectly adequate defense in Washington State for the charges of rape in the third degree (Barnhill & Kennedy-Begen, 2006). Thankfully, Governor Jay Inslee signed a bill in 2013 closing that loophole in Washington State law. Marital rape is now recognized as a form of partner abuse, and third-degree rape is no longer excusable within marriage (Buzawa, Buzawa, & Stark, 2017).
Although marital rape is officially illegal in the United States, it continues to be treated and handled differently than rape that happens outside of marriage (Barnhill & Kennedy-Begen, 2006). Whether it is restricted to a shorter reporting period, held to different standards of coercion and force, or charged under a separate section of criminal code, it is all too often treated differently than non-marital rape (Intimate Partner Sexual Violence, 2018). This double standard has made marital rape an infrequently prosecuted crime, and it is considered to be challenging to prosecute (Barnhill & Kennedy-Begen, 2006).
Marital rape is still a topic that is understudied, but it is estimated that between 10 to 34 % of women have been raped or sexually assaulted by a spouse or their intimate partner (Barnhill & Kennedy-Begen, 2006). It is difficult to know precisely how often marital rape is happening because it continues to be the most underreported category of sexual assault (Barnhill & Kennedy-Begen, 2006). Nearly 70% of rapes still go unreported, and the percentage is very likely higher for marital rapes alone (Intimate Partner Sexual Violence, 2018).
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Women who are victims of marital rape feel a lot of pressure to keep their marriages intact, and they may be having a hard time coming to terms with that reality that their spouses are rapists, both issues that add to the reduced profile of marital rape relative to the other more well-known types of sexual assault (Intimate Partner Sexual Violence, 2018). There are many misconceptions about the legitimacy of marital rape and on a cultural level even though the act has been criminalized many still see it as a grey area. In fact, currently, you can read Christian articles and blogs where the authors assert that within marriage there is no such thing as rape (Roles, 2015).
These Christian authors argue that the wife’s body is not her own, but is her husband’s property, and is a concept that many still embrace (Roles, 2015). Our culture still places little value on women owning their bodies; whether it be sexual intimacy for a spouse, or in pregnancy, women are still consistently being told that their health and safety come after everyone else. Rape within marriage is illegal everywhere in the United States, but the cultural and legal obstacles facing its victims remain formidable.
New Amendments Mandating Arrest Continue to be Enacted
“You need to call the police; they will help you” is the advice that is often given to women who reveal that they are a victim of domestic violence. The thinking behind this advice is a positive opinion that mandatory arrest, which was created in an effort to curb domestic violence, is an effective way to stop the abuse (Erez, 2002). It is true that all fifty states have passed probable cause, mandatory arrest, and similar laws to promote, encourage and require, police officers to make arrests in domestic violence incidents (Novisky & Peralta, 2014).
And there are many agencies that demand that officers make an arrest under certain conditions (Erez, 2002) Conditions such as violation of a protection order, any evidence of an assault, and any type of offense where there is physical evidence existing or if a police officer has witnessed such an offense (Erez, 2002). This mandatory arrest policy can be an essential and valuable tool for a survivor to know about in advance so that they can know what to expect from their local authorities when reporting an assault (Erez, 2002).
However, there is still debate over the existence of mandatory arrest (Novisky & Peralta, 2014). There are those that say it can give the victim an important time out from the violence that they are routinely experiencing and time to speak with domestic abuse advocates regarding steps that can be made going forward (Novisky & Peralta, 2014). There are other people who like to point out that there is a pervasive reality of domestic violence which is where there are what appears to be seemingly positive moves made to address the violence, but it backfires, in this particular instance, the prospect of an arrest could lead to even more escalated violence at a later time (Novisky & Peralta, 2014).
A woman may also believe that police may arrest her as the aggressor, in instances where she is protecting herself or her children, so it is less likely that she will report the abuse (Novisky & Peralta, 2014). This reasoning, unfortunately, has supportive data that shows us that yes, in fact, mandatory arrest policies have resulted in higher arrest rates of battered women (Novisky & Peralta, 2014). There is also research suggesting that the law may actually intimidate women from calling law enforcement to report abuse (Novisky & Peralta, 2014). A recent study looked at how women victims feel about mandatory arrest policies, how they perceived the abuse of substances by their perpetrator, and the presence of children in relation to decisions they made to ask for help from law enforcement (Erez, 2002).
The study relayed that as the victim support for the mandatory arrest of their perpetrator increased, the odds of notifications to police officers regarding abuse also increased (Novisky & Peralta, 2014). They noted that mandatory arrest might be reducing the probability of reporting domestic violence with those who do not support the policy (Novisky & Peralta, 2014). The perception among women may be that mandatory arrest policy have made the cost of reporting too high, and women may choose to involve law enforcement even less (Novisky & Peralta, 2014).
Training of Key Officials Involved in All Stages of Domestic Violence
Law enforcement is a critical partner in the effort to prevent and combat domestic violence against women. Prosecutors, judges, and the police are all vital in avoiding women becoming re-victimized, and in making sure that the safety of women involved in the investigations and what happens in the court system, are protected (Shelters, 2016). There is a continued need for all of these participants of the crucial stages of investigations to give the strong message that violence is not tolerated (Violence, 2016).
Through the actions of law enforcement and the justice system, there can be a significant contribution to the empowerment of women victims that help them make decisions that increase their safety and assist them ending the cycles of violence (Violence, 2016). Still, many in law enforcement lack the necessary knowledge and tools that are needed to assist the victims effectively such as responding immediately and without bias and ensuring that all risks are effectively managed (Violence, 2016).
The results of not having this training and sensitivity to women victim’s needs and rights are that the response from the police and justice team is all too often inadequate, which results in secondary victimization for the women and impunity for the male perpetrator (Shelters, 2016). Having our law enforcement officers be well trained can significantly contribute to shaping our institutional cultures and the practices that have been proven ineffective (Shelters, 2016). With training, these professionals can gain the trust of victims and help diminish the overall fear of how the justice system will respond to domestic abuse cases (Violence, 2016).
While it can not be denied that there have been positive changes made for the rights of women in domestic abuse situations, all it takes is watching the news, reading the latest articles, and looking into recent research to realize how much there still needs to be done. Women’s needs are not taken as seriously as men’s, and there is still a dangerous culture that we live in that does not allow for equality. After taking this class and seeing how much effort has been made to change our treatment of women and yet looking at where we are in 2018, I feel at a loss as to what will truly create a change for women.
