Is it worse to sexually assault a stranger than it is to sexually assault your wife?
In many states, the law says yes, imposing lesser charges or lighter sentences for violations within marriage — a disparity that women’s rights activists find galling and are trying to change.
The issue has gained attention in recent weeks, as former governor Deval Patrick’s entry into the Democratic presidential race revived questions about his involvement in a controversial case regarding spousal rape. Patrick’s former brother-in-law was convicted of that offense in California, but after moving to Massachusetts, he was not required to register as a sex offender. A hearing officer determined California’s spousal rape charge to be legally less severe and the man to be at no risk of reoffending.
Eleven years later, Massachusetts case law has evolved to erase confusion about discrepancies between states’ criminal codes so that the same decision wouldn’t be made today. Marriage has not been a defense against rape charges in Massachusetts courts since 1981, and marital rape has been illegal in all 50 states since 1993, at least to some degree.
But many states, including California, continue to treat sexual assault differently when it occurs within a marriage, according to AEquitas, a nonprofit training and technical assistance provider that works with prosecutors on their response to gender-based violence and human trafficking.
“I think that all California voters would be shocked if they knew that California still maintains a spousal rape law,” said Michele Dauber, a Stanford University law professor and sociologist who is advocating for the change. “Obviously, it’s time to remove this law from our books because rape is rape regardless of the relationship or lack of a relationship between the perpetrator and the victim.”
Spousal rape in California does not carry a mandatory prison sentence. Someone convicted of spousal rape there is required to register as a sex offender only if he used force or violence — not if he violated his wife in her sleep or while she was unconscious — and if he was sentenced to prison.
That distinction is troubling to Santa Clara District Attorney Jeff Rosen, who is developing legislation to eliminate it.
“We have recently encountered a horrific spousal rape case and it was very disheartening to realize that he’s not looking at mandatory state prison,” said Terry Harman, an assistant district attorney who oversees the Santa Clara County sexual assault unit.
The notion that a man can’t rape his wife can be traced back to Matthew Hale, father of British common law, said Raquel Kennedy Bergen, a sociology professor and a fellow in the Institute for Violence Research and Prevention at Saint Joseph’s University in Philadelphia.
“People like Hale argued that with marriage, you are giving your consent forever and it can’t be revoked,” Bergen said.
In the 1970s, feminists began pushing back against that idea but discovered it was baked into law: State statutes defined rape as forcible intercourse with a woman who is not your wife.
“By virtue of the definition, you could not rape your wife,” Bergen said.
In many states, though spousal rape is illegal, spousal exemptions remain — including those based on the age of the victim (when sexual conduct might otherwise be statutory rape), their custodial or supervisory relationship (when sexual conduct might otherwise be illegal), or the victim’s capacity to consent, according to AEquitas.
For instance, Maryland offers a spousal defense that says a person can be prosecuted for raping a spouse only while using force or threatening to use force; or the couple is living separately for at least three months or pursuant to a written separation agreement.
In 20 states, spouses are exempt from prosecution in cases that would otherwise be considered rape because the victim was asleep, unconscious, or otherwise incapacitated and unable to give consent.
“To my mind, at least, that’s when you’re most vulnerable — when you can’t give your consent, whenever you’re incapacitated,” Bergen said.
Until this year, Minnesota had a “voluntary relationship” defense that would exempt a perpetrator from prosecution for sexually assaulting someone who’s physically helpless if married or living together. The campaign to change that law was led by a woman who found video of her now ex-husband penetrating her with an object as she slept in their bed beside their 4-year-old son, according to The New York Times. Under the prior law, the ex-husband could only be charged with a misdemeanor, rather than a felony.
So is a perpetrator less of a public danger if the only person he assaults is his wife?
Statistically, yes. Individually, not necessarily. That’s why sex offender registration should be based on individual assessments of behavior and risk, not just broad classifications, said Dr. Laurie Guidry, a member of the board of the Massachusetts Association for the Treatment of Sexual Abusers.
Generally speaking, she said, “The research tells us that when a person targets a stranger victim, that kind of an offender tends to be a higher risk for recidivism than the person who targets someone who is known to them or related to them.”
But individual spousal offenders can sometimes be more dangerous than those who assault strangers. Some go on to commit other violent or sexual offenses, said Gina Scaramella, executive director of the Boston Area Rape Crisis Center.
“I think it’s incredibly important that we understand that people who are sexually violent toward people they know are not better than people who do that toward a stranger,” she said.
The case of Patrick’s former brother-in-law, Bernard Sigh, began with Sigh’s 1993 conviction of spousal rape of Patrick’s sister, his jail time, and his probation. The couple reconciled before moving to Massachusetts, where he had not registered as a sex offender, when Patrick was running for governor, the Boston Herald revealed. The Sex Offender Registry Board ordered Sigh to register, and he appealed.
A hearing officer determined that Sigh “does not present a risk to reoffend or a danger to others,” noting that he had stopped drinking, accepted responsibility, and shown sincere remorse. The hearing officer was persuaded by the victim’s testimony that Sigh had been a loving husband and father in the ensuing 14 years and that the rape had been an isolated incident.
But board employees continued to resist his findings, insisting that spousal rape should be treated as rape. Years later, Patrick fired the chairwoman of the board, whom he accused of inappropriately trying to change the opinion. In a suit that is still ongoing, the former chairwoman, Saundra Edwards, claims she was unjustly fired in retaliation.
When the issue came up in his new campaign for president, Patrick defended his actions, maintaining he asked Edwards to resign “in part because of her unlawful interference” in the case, which triggered a prior lawsuit and financial settlement with the hearing officer.
He also said, “Bernie Sigh’s impact on my family has been complex and painful for all of us.”
In 2017, Sigh was charged with raping Patrick’s sister again, as well as trying to have her kidnapped. He was convicted in June and sentenced to six to eight years in prison.
Dauber, the Stanford professor, has called Patrick’s involvement in the case of his former brother-in-law “disqualifying” for a presidential candidate. However, she noted that it has drawn attention to California’s antiquated law.
“I think that the Deval Patrick incident is probably the first time that many Californians even knew that we had a spousal rape law, or a spousal rape exception,” Dauber said.