What is Spousal Rape?

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  • Written By: M. Lupica
  • Edited By: John Allen
  • Last Modified Date: 15 January 2019
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Spousal rape is a crime that involves one spouse in a marriage forcing the other to submit to sexual intercourse against his or her will. Though not all jurisdictions recognize spousal rape as a criminal offense, those that do generally treat it similar to the way they treat rape by any other party not married to the victim. Penalties typically include large fines and several years in prison. Spousal rape is a modern concept that was not specified as a criminal offense in any location until the late 19th Century.

Spousal rape is typically defined as a person forcing his or her spouse to engage in sexual intercourse against that person’s will, accomplished through means of force or fear. Some jurisdictions specify the offender’s and victim’s gender, but most do not require that the victim be the wife and the offender be the husband. Additionally, some jurisdictions provide for a lesser charge of spousal sexual assault if there is no intercourse but one party forcefully submits the other to sexual activity. Other jurisdictions require that the couple be separated or divorced in order for it to be considered rape.

In jurisdictions that recognize spousal rape as a crime, the punishment is typically the same or similar to that particular jurisdiction’s punishment for any other forcible rape. However, many jurisdictions treat it as a lesser crime and provide for lower punishments to offenders. The penalties for spousal rape tend to include the possibility of tens of years of prison time and heavy monetary fines, though the penalty actually levied in any particular instance depends heavily on the circumstances and the amount of bodily harm inflicted on the victim. In jurisdictions that carry sexual offender databases, those convicted of spousal rape must register as a sex offender as well.

There has been some resistance to the establishment of spousal rape as a crime. At common law, a husband could not rape his wife because the concept of rape was defined as someone other than a woman’s husband submitting her to forced sexual intercourse. This concept was supported by the fact that spouses historically had “conjugal rights” — i.e., rights to sexual intercourse — with the other spouse in a marriage. Even in jurisdictions that recognize spousal rape as a crime, there are prosecutorial issues, such as the victim-spouse being unwilling to come forward to the authorities regarding the crime.

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