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

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

By Chris Apple

The author is a volunteer advocate.

Sexual assault should be illegal, and marriage should be no defense — an ideal the US has been working toward since the 1970s, when states outlawed marital rape. In Maryland, loopholes still exist that allow people to get away with assaulting their spouses. Fortunately, efforts to close those loopholes are growing.

In the February Zoom hearing faces were gloomy about this proposed repeal. Advocates spoke of 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 areaseven if the contact is abusiveeven if the married couple lives separately 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 attacker must use or threaten violence, or the victim must expressly withdraw consent. But under Maryland law, an incompetent person has not withdrawn consent, and the assault does not meet the legal definition of force because the victim was unconscious.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 attorneys who tried to prosecute these crimes, only to find that the perpetrators did nothing illegal. Those survivors, who likely faced ridicule and threats for coming forward, did not get the justice they deserved.

But they would have gotten that justice if they were single. Only the laws for married people have these loopholes. If those survivors were not married, if it was an intimate partner who did these things to them, it would meet the definition of sexual assault. The exact same acts, committed between unmarried persons, are felonies 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 rejection of the idea that marriage itself grants that consent. In the time before the founding of the USA, the law stipulated that men took control of 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 has in this kind surrendered herself to her husband , which she cannot take back.”

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

The 2022 recall effort 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 vowed to return and fight again in 2023. And now, a grassroots petition started circulating demanding an immediate repeal of these loopholes.

On the street, people express shock and disgust when they learn of this law. “We are one of the states?” exclaimed one petitioner. And as circulators went door-to-door, signers began sharing 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 mirror those shared by the state’s attorneys, and point to the plain truth that spousal assault is far more common than what we see in that courtroom. As much as two-thirds of sexual assaults are never reported.

The petition’s circulators are seeking to collect as many signatures as possible, and will deliver them to Maryland lawmakers before the 2023 repeal hearing for this law. Maryland voters can read and sign the petition mdspousal.com.

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

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