Legislators want lesser penalties regarding spousal rape changed

Bills would remove the marriage distinction for sentencing terms

Two South Bay lawmakers have teamed with prominent sexual assault survivor advocates and prosecutors to make a legislative push to end the state’s differing treatment of rapists based on whether they’re married to their victims.

Assembly Bill 812, co-authored by Assemblymembers Evan Low, D-Campbell, and Cristina Garcia, D-Downey, is paired with Senate Bill 530 from freshman State Sen. Dave Cortese, D-San Jose, to update California’s penal code and remove it from the list of 11 states that still classify spousal rape apart from other rape cases and prescribe lesser penalties.

Stanford law professor Michele Dauber, who drove the historic recall of Judge Aaron Persky after his light jail sentence for Brock Turner for sexually assaulting an unconscious woman, called the bills “common sense reform” that is long overdue.

“Voters will be absolutely shocked when they learn that our progressive state of California continues to maintain this antiquated distinction that is based on the idea that men have a property right of sex

ual access to the bodies of their wives,” Dauber said in a Monday news conference. “(It) sends a terrible message to victims of sexual violence. … This in turn may make victims less likely to report these crimes or seek help when they need it.”

At issue is a longstanding state penal code section that separately addresses spousal rape from other rape offenses. The practical effect has been that people convicted of raping their spouses are not automatically subject to mandatory prison time, nor are they universally ordered to register as sex offenders, both of which are compulsory penalties in non-marital rape convictions.

Until 1975, all states had a spousal rape distinction, but since then 39 states have removed them.

“This bill will simply modernize an antiquated law,” Garcia said. “When spousal rape is not treated as seriously as other forms of rape, it invalidates the victims’ traumatic experiences and continues to promote rape culture.”

Kolieka Seigle, president of Calfornia NOW — a chapter of the National Organization for Women — joined Dauber in explaining that the spousal rape distinction is part of a broader lack of public awareness on the issue, including tropes like strangers “jumping of the bushes in the shadows” that need to be dismantled in favor of the reality that most rape survivors are assaulted by people they know.

“Rape is rape, if you’re a college student, rape is rape if you’re a woman of color, rape is rape if you’re a trans woman,” Seigle said, “and rape is rape whether you’re married or not.”

The frequency of spousal rape is also mired in underreporting — as is the case with many sexual assault crimes — and Dauber said that only increases the urgency of dispensing with statutes that suppress people from coming forward to authorities. She cited how in the past year, marked by several COVID-19 sheltering orders, domestic and spousal rape reports in San Jose doubled even as overall reported rapes decreased by more than 9%.

It’s with that impact in mind that San Francisco District Attorney Chesa Boudin voiced his support for the two bills, saying that “law enforcement needs the tools to hold people who commit these devastating crimes accountable, to encourage survivors, no matter who they are to come forward and seek justice.”

Santa Clara County District Attorney Jeff Rosen added that while his prosecutors can lobby judges not to defer to the statutory minimums defined by the spousal-rape statute — probation and no sex offender registration — he supports how the bills would restrict judges to the same sentencing options for nonmarital rape.

“A marriage license and wedding ring do not make rape a less serious offense,” Rosen said. “More and more people today live together or have children together without being legally married. This fact highlights how antiquated it is to distinguish between married and unmarried when holding rapists accountable.”

Both bills, which were introduced last month, were assigned to their respective chambers’ publicsafety committees in the past week. When asked if they expect opposition to the bill, Seigle said she is reflexively preparing for it, given how long the spousal-rape statute has been allowed to stay in place.

Dauber said the idea behind changing the law should be inarguable, calling it a “simple matter of equity.”

“California’s spousal rape law is a slap in the face to all women and sexual-assault survivors, and it must go,” she said. “This is really righting a historical wrong.”