Marital Rape in Maryland

Marital Rape in Maryland

The Facts

  • Approximately 10-14% of married women in the US are raped by their husbands. (Finkelhor & Yllo, 1985; Russell, 1990)
  • Marital Rape accounts for approximately 25% of all rapes. (Resnick, Kilpatrick, Walsh, &Vernonen, 1991; Randall & Haskings, 1995)
  • Between one third and one half of battered women are raped by their partners at least once. (Campbell, 1989; Browne, 1993; Bergen, 1996)

What is Martial Rape?
Counselors and others working with victims consider marital rape to be any unwanted sexual act committed by a spouse without the consent of the victim or against a person’s will; any sexual act that is obtained by force, threat of force, intimidation, or coercion; or any sexual act committed when a person is unable to consent. The term “sexual act” includes intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim to be degrading, humiliating, painful, and unwanted. Marital rape is also referred to as spousal rape and wife rape.

Marital rape is often part of a larger picture of physical and emotional abuse. Sometimes the fact that there is physical violence overshadows the sexual violence and so the sexual abuse is not addressed. It is important that someone who has been sexually victimized by their spouse get help – especially since a woman who is sexually abused by her husband may face different challenges than other domestic violence victims or other rape victims.

  • She has had her trust betrayed by someone she loves and knows intimately.
  • She shares her life, home and possibly her children with the perpetrator.
  • She may have difficulty getting away or staying safe.
  • She may encounter different barriers to proving her case in court.
  • She is more likely to be raped repeatedly and suffer serious physical and emotional injury (Mahoney, 1999; DOJ, 2000).
  • She may experience more severe anger and depression and therefore have different counseling needs than women raped by strangers or acquaintances (Koss, Dinero, Siebel & Cox, 1988).

Assessing the Problem
Safety and healing often begin for a victim by having a safe place or person to talk with about the rape or sexual abuse. Since victims may not recognize the assault as “rape” and may be confused by their feelings, it is important for a friend or counselor to open a line of communication. Some non-threatening questions that might open dialogue are:

  • Has your partner ever made you have sex when you didn’t want to?
  • Have you ever been uncomfortable with a sexual request from your spouse, but did it anyway?
  • Have you ever had sex with your spouse because you were afraid to say “no”?
  • Have you ever given into sex because your spouse would not stop harassing you about it?

If someone answers “yes” to any of these questions, they may be a victim of martial rape.

The Facts

  1. Having sex with a person one time does not imply consent to any future sexual acts.
  2. Being married to a person does not equal consent.
  3. Martial rape or sexual assault can be the basis for a civil order of protection – even if a case cannot be prosecuted.
  4. Marital rape or sexual assault can be grounds for divorce.
  5. A wife is allowed to testify against her husband in a sex crime prosecution.
  6. A wife does not need her husband’s consent to terminate an unwanted pregnancy.
  7. There are specialized counseling and legal services available for marital rape survivors.

Know the Legal Issues
Historically, most rape statues stated that rape was forced sexual intercourse with a “woman not your wife,” and thus granted husbands a license to rape. In 1993, marital rape became a crime in all 50 states, under at least one section of the sexual offense codes. However, in some states such as Maryland, there are still exemptions given to husbands from prosecution for certain sex crimes.

Currently in Maryland…

  • If a sex crime is committed using force or threat of force and the victim-spouse did not consent, marriage is not a defense.
  • If a sex crime involves oral sex, anal sex or penetration with an object, marriage is not a defense. 
  • If a couple have a divorce – including a limited divorce if the parties are living apart – marriage is not a defense and a spouse-perpetrator is treated the same as any other perpetrator.

However, marriage IS a defense to some other sex crimes:

  • Unless the spouses are divorced, they may not be convicted of 4th degree sexual offenses against one another (fondling or digital penetration without consent). Marriage is also a defense to age-based sexual offenses (statutory rape).
  • A husband CANNOT be convicted of crimes involving vaginal intercourse with a spouse who is incapable of knowing what is happening, or of resisting, or of communicating, for any of the following reasons: the victim is “physically incapacitated,” suffers from mental retardation or a mental disorder, or is “physically helpless.” This “exemption” does not apply if the husband and wife are legally separated and have lived apart without cohabitation and without interruption for at least three (3) months; have a limited divorce and are living apart; have an absolute divorce; or can prove lack of consent and force or threat of force. 

(from “I Do” to Marriage is NOT Consent to Rape from Maryland Coalition Against Sexual Assault)