Some states seek to close loopholes in marital rape laws.

‘Spousal defense’ laws still on books in most

COLUMBUS, Ohio — Witches were still being burned at the stake when Sir Matthew Hale came up with his legal theory that rape could not happen within marriage. The 17th century English jurist declared it legally impossible because wedding vows implied a wife’s ongoing consent to sex.

Three and a half centuries later, vestiges of the so-called “marital rape exemption” or “spousal defense” still exist in most states — remnants of the English common law that helped inform American legal traditions. Legislative attempts to end or modify those exemptions have a mixed record but have received renewed attention in the #MeToo era.

The most recent efforts to roll back protections for spouses focus on rapes that happen when a partner is drugged, unconscious or otherwise incapacitated. Minnesota is the latest to take action. The state Legislature this week voted to eliminate the exemption, which had prevented prosecutions in those cases.

“No longer will this antiquated and shameful law be on our books,” Gov. Tim Walz said as he signed the bill into law on Thursday.

In Ohio, determined opponents plan to re-introduce a marital rape bill this month, after two earlier attempts failed.

Former lawmaker and prosecutor Greta Johnson was the first to introduce the Ohio legislation in 2015. She said having to address whether a woman was married to her attacker as part of sexual assault prosecutions struck her as “appalling and archaic.”

All 50 states had laws making marital rape a crime by 1993, whether as a result of the two preceding decades of activism by women’s rights groups or because of a pivotal court ruling. Nearly 9 percent of women and 0.8 percent of men have been raped by an intimate partner, according to the Centers for Disease Control and Prevention. National surveys have placed the percentage of women raped within marriage between 10 percent and 14 percent.

Still, many states’ marital rape laws have loopholes — not only involving the victim’s capacity to consent, but related to age, relationship, use of force or the nature of the penetration. Some impose short timeframes for victims to report spousal rape.

The bill died in March.

Steve Karnowski The Associated Press Jenny Teeson, center, of Andover, Minnesota, looks on as Minnesota Gov. Tim Walz signs a bill in St. Paul on Thursday repealing a law that prevented prosecutors from filing sexual assault charges against people accused of raping their spouse.