A striking disconnect: marital rape law's failure to keep up with domestic violence law.

• Author: Klarfeld, Jessica

INTRODUCTION

Until the late twentieth century, a husband could compel his wife to have sex with him without fear of consequence. Although the criminal justice system could punish a man who forced a woman to have nonconsensual sexual intercourse, marriage served as an absolute defense to rape, and a marital rape exemption existed in the statutory laws of every state. The common law also recognized the existence of a marital rape exemption, and, in order to bring a recognized charge of rape, a woman had to allege that she was not the wife of the defendant. (1) Regardless of how brutal or evil the spousal rape, courts did not consider it a crime. (2)

Beginning in 1976, states began to dissolve their marital rape exemptions, and by 1993, spousal rape, just like nonmarital rape, was a crime in all fifty states and the District of Columbia. (3) State legislatures and courts came to understand that the marital rape exemption was "employed to justify the subjugation of women in English and American law and society during the past," but that there was no room for such a doctrine in modern American law and society. (4) They finally recognized that married women should have the same right to control their bodies as unmarried women and, therefore, that the various justifications (5) previously used to uphold the marital rape exemption should no longer hold any weight.

Although every state legislature has formally abolished its marital rape exemption, reminders of the exemption still remain in the statutory law of several states. (6) These additional hurdles are found in decreased sentences for the accused, proof of force and/or resistance, and shorter time frames by which a woman has to report a rape by her husband, ultimately making spousal rape more difficult to prosecute. (7) Even in states that do not have these increased requirements, successful prosecution of marital rape cases is still extremely difficult.

Domestic violence law, on the other hand, has seen huge advances over the past few decades. Of particular importance are the mandatory arrest and no-drop prosecution laws that legislatures in every state have enacted to increase police response and decrease batterer relapse. (8) Although these laws are criticized, (9) it is significant that legislatures have implemented policies that seek to decrease spousal battery and alert society to the harms of domestic violence. Unquestionably, domestic violence law has its own problems and differs from marital rape. (10) However, the progress that society, state legislatures, and the judicial system have made regarding domestic violence should serve as a model for marital rape law. This Note will argue that to advance marital rape law to the same level as domestic violence law, two crucial changes must occur: first, those states whose statutes do not treat marital rape and nonmarital rape exactly the same must enact statutes that do not distinguish between the two crimes; and second, legislatures must institute policies aimed at the more effective prosecution of marital rape.

Part I of this Note provides an overview of domestic violence law, and, in particular, mandatory arrest laws and no-drop prosecution policies now common to all state codes. Part II introduces marital rape in the context of domestic violence, discussing how, and if, marital rape fits into a spousal physical abuse framework. Part III explores the traditional and more modern justifications of the marital rape exemption. Part IV discusses the formal abolishment of the marital rape exemption, both by state legislatures and by the courts of various jurisdictions. Part V asserts that despite the development in marital rape law and the formal abolishment of the marital rape exemption in all states by 1993, several state statutes still contain remnants of the marital rape exemption, and prosecution continues to remain extremely difficult. Lastly, Part VI argues that to ensure marital rape law's progress, those states without "ideal" statutes must eliminate any requirements for marital rape that do not exist in the nonmarital rape context, and legislatures must implement policies with respect to prosecuting spousal rape so that prosecutors, courts, and juries cannot evade the issue.

1. DOMESTIC VIOLENCE LAW: A SHIFT FROM THE PRIVATE HOME TO THE PUBLIC SPHERE

   Domestic violence is defined as violence between members of a household, most commonly spouses. (11) The United Nations defines domestic violence as "[a]ny act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." (12) Such gender-based violence is extremely common. In fact, in the United States, more than two million women are battered by an intimate partner each year. (13)

   Domestic violence was once a private matter only managed by women individually in the seclusion of their homes. Now, domestic violence is a public offense that state authorities can target through the criminal justice system. (14) Beginning in the early 1990s, state legislatures introduced law reforms targeting domestic violence, thereby bringing domestic violence into the public sphere. (15) These reforms, (16) which were aimed at reshaping law enforcement officials' views on domestic violence, changed the nature of domestic violence by treating it as a crime instead of an intrafamilial private dispute. (17) Two particular reforms--mandatory arrest laws, which require police to arrest domestic violence suspects upon probable cause, and no-drop prosecution policies, which compel prosecution even if victims are uncooperative--are "the clearest manifestations" of how the view of domestic abuse has changed in recent years. (18)

   States instituted mandatory arrest policies to counter police resistance to arrests in domestic violence cases. These policies removed or restricted police officer discretion with the goal of increasing police response and reducing batterer recidivism. (19) Prior to the enactment of these laws, police enforcement in domestic violence cases was left to the discretion of the individual officers, and accordingly, often afforded women inadequate protection. (20) Officers frequently failed to arrest batterers or those who violated protection orders because domestic violence was viewed as an intrafamilial problem. (21) By enacting mandatory arrest laws, states hoped that abusers could no longer pressure their victims to refrain from pursuing charges. (22) Proponents of mandatory arrest laws argue that these laws send a message to the batterer that his behavior is unacceptable and allow the victim to obtain counseling and develop a plan for safety while her batterer is in prison or subject to a restraining order. (23)

   Presently, all fifty states and the District of Columbia permit officers to make warrantless arrests when the officers have probable cause to believe that an individual has committed a domestic violence offense or violated a protection order. (24) Some states have even passed laws mandating warrantless arrest in domestic violence cases. (25)

   In addition to mandatory arrest laws, several states have enacted mandatory no-drop prosecution policies to hold batterers accountable and decrease prosecutorial discretion. States have employed two types of no-drop prosecution policies: soft no-drop policies and hard no-drop policies. In states with soft no-drop prosecution policies, prosecutors must initiate criminal proceedings against batterers, but there are no penalties for domestic violence victims who refuse to cooperate after charges are filed. (26) However, although there are no penalties for a non-cooperating victim, soft policies do not completely defer to the victim; the victim decides whether or not to participate, but the prosecutor ultimately determines how the prosecution will proceed. (27) Furthermore, a prosecutor can only drop a case if he feels that he cannot successfully bring the case without the victim's cooperation. (28) In states with hard no-drop prosecution policies, prosecutors must initiate criminal proceedings against batterers, and there are penalties for victims who refuse to cooperate in the prosecution. (29)

   Proponents of no-drop prosecution laws argue that such laws force the state to treat domestic violence crimes against women as seriously as it treats other crimes. (30) They further argue that such laws help keep victims safe from batterers who try to "persuade" victims through forceful means not to press charges. (31) Despite these no-drop laws, prosecution of domestic violence cases remains difficult, as victims are often unwilling to participate in the prosecution and, in particular, to testify. (32) Without testimony from the victim, prosecutors are unlikely to convict the batterer.

2. MARITAL RAPE IN THE CONTEXT OF DOMESTIC VIOLENCE

   Most marital sex is consensual. (33) However, marital rape pervades our society, and it is widely recognized that women can be raped by their husbands, as well as by strangers. Marital rape scholars and activists disagree on the extent to which marital rape and domestic violence are similar. (34) Some locate marital rape within the domestic violence context; others believe that such rape cannot occur without other forms of domestic violence; and still others assert that marital rape poses a distinct threat. (35) One scholar, Diana Russell, in her study of women in San Francisco, found that ten percent were victims of both marital rape and battering, four percent were victims of marital rape only, and twelve percent were victims of battering only. (36) Russell has asserted that treating marital rape as merely a subset of domestic violence excludes too many women who are victims of marital rape, but not of domestic violence. (37) According to her, although a substantial percentage of men...