Maryland Ends Another Legislative Session Without Repealing the Spousal Defense

by Olivia Graziano

Trigger warning: Sexual assault and intimate partner violence

Would you be surprised to learn that Maryland criminal law permits sexual assault by a spouse? I was.

I’m an intern at NARAL Pro-Choice Maryland, a reproductive justice advocacy organization, so I spent the beginning of 2020 tracking bills introduced during the Maryland legislative session. As I reviewed the new legislation the Maryland General Assembly would consider in the upcoming months, one bill struck me⁠ — HB0590/SB0230 Criminal Law — Sexual Crimes — Repeal of Spousal Defense.

HB0590/SB0230 was the latest attempt to finally remove the section of Maryland’s criminal law that prohibits charging someone with rape or sexual assault if they’re married to their victim — what’s known as the spousal defense. It was truly shocking to learn that despite all the progress we’ve made when it comes to reproductive justice in Maryland, this loophole still exists.

Under current law, someone cannot be charged with a fourth-degree sex offense (nonconsensual sexual contact) or first- or second-degree rape if their victim is their spouse and they didn’t use or threaten force. What does that mean?

· If someone drugs and sexually assaults their spouse, they can’t be prosecuted.

· If someone sexually assaults their spouse while they’re asleep or drunk, they can’t be prosecuted.

· If someone nonviolently pressures or coerces their spouse into sex, they can’t be prosecuted.

· If someone rapes their spouse but use of force can’t be proved, they can’t be prosecuted.

Intimate partner violence, including spousal rape, is a widespread problem in the United States. According to the National Domestic Violence Hotline, nationwide, nearly 10% of women have been raped by an intimate partner, and 13% of women and 6% of men have experienced nonviolent sexual coercion. The Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey found that 16.9% of women in Maryland have experienced sexual violence from an intimate partner, including a spouse. Just 36 percent of all rape survivors make police reports, and the report rate is lowest for spousal rape. Survivors of spousal rape are likely to endure additional non-sexual violence in their marriages and experience high rates of mental and physical health issues.

People of all genders and sexualities experience sexual assault and domestic violence, but the spousal defense is founded in long-standing patriarchal beliefs about a husband’s right to control his wife. The spousal defense reinforces gendered power dynamics within marriages and implies that women lose their bodily autonomy when they marry. “This whole idea is rooted in the absolutely archaic and reprehensible notion that marriage is irrevocable consent to sex and that wives can’t control their own bodies,” said Lisae Jordan, Executive Director of the Maryland Coalition Against Sexual Assault, while testifying in support of HB0590 in the House of Delegates (watch the hearing here).

Bodily autonomy is a right, not a conditional privilege that you lose when you get married. We need to change our laws to recognize that. Sex with someone unable or unwilling to freely give consent is rape, regardless of the relationship between the people involved. No one has a right to sex.

HB0590/SB0230 was one of many bills that died when the Maryland legislative session was cut short due to the COVID-19 pandemic. It passed the House of Delegates with nearly a unanimous vote, but it didn’t have a chance to advance beyond its committee hearing in the Senate. But this was only the latest in a history of repeated failures to pass this repeal. In 2004, the effort to repeal the spousal defense resulted only in the addition of the “threat of force” clause — your spouse could now be charged with sexual assault if they threatened to use force, not just if they actually did so. Most recently, in 2019, the repeal bill hadn’t even made it out of committee for a vote in the House of Delegates.

I didn’t understand why this kept happening. I thought (a little naively) that surely this was an issue everyone can agree on. But this year’s committee hearings for HB0590/SB0230 forced me to realize that no, it’s not at all.

The panelists testifying in support of the bill in the House of Delegates and the Senate emphasized the spousal defense’s patriarchal roots and the very real impacts it has on those who experience spousal rape. But when the Senate Judicial Proceedings Committee began questioning the bill sponsor panel during its hearing — watch here — the conversation took a hard right turn.

Senator Charles Sydnor, III and Senator Susan Lee, the bill’s lead sponsor, asked a few clarifying questions that allowed the panel to further advocate for the repeal. But then Senator Robert Cassilly stepped in and asked a series of questions that suggest he believes we shouldn’t repeal the spousal defense because 1) women who report rape are liars and 2) spousal rape survivors should be satisfied with assault charges and protective orders.

When two married people are in bed together, said Senator Cassilly, “the lines are definitely blurred….All the existing law’s trying to do is say ‘Let’s keep the criminal law out of divorce’ because…every divorce case becomes a criminal prosecution.” He presented hypothetical to illustrate his point: perhaps a woman having an affair will prosecute her husband for touching her breast while they’re lying in bed together so she can get a divorce. I was disappointed to see yet another iteration of the tired, unproven claim that women who make sexual assault claims are liars just hoping to get something out of it — attention or the punishment of an innocent man.

Most rape survivors don’t make police reports, and when they do, they often aren’t believed, especially when the assault involves someone with whom they’ve had consensual sex. Cases like Senator Cassilly’s hypothetical are exceedingly rare — the false report rate for sexual assault is no higher than it is for other crimes. And sexual assault claims are put under so much scrutiny that it’s hard to imagine a case like that would ever result in a conviction. The idea that women would lie about assault and use it as a weapon to punish their husbands has no basis in fact and is insulting to women who do go through the grueling process of reporting sexual assault.

Senator Cassilly seemed determined to misconstrue the purpose of SB0230, expressing concerns about its potential “chilling effect” on spousal interactions: “So you’re saying with this bill that the husband would have to get consent,” he said. “I couldn’t just roll over at night and put my hand on a bikini area. I would have to say, “Excuse me? Is that what you’re saying?”

It’s not at all what we’re saying (though getting consent shouldn’t ever be framed as bad or a burden). SB0230 addressed nonconsensual touching for sexual gratification or abuse, not the normal flirtatious or familial interactions between married people. In fact, Maryland law’s definition of fourth-degree sexual offenses explicitly excludes the kind of touching he’s talking about. And it’s absurd to suggest that people would interpret a spousal defense repeal as criminalizing all ordinary touch — especially when all other assault laws already apply to married people and haven’t had the chilling effect Senator Cassilly’s so worried about.

“The law’s pretty good here,” concluded Senator Cassilly. “It says, you know, if you force, if you beat somebody up, that spousal privilege is gone.” I think we have different standards for “pretty good.”

There was never a Senate committee vote on SB0230, even though the hearing occurred in mid-January. The House had its hearing for HB0590 more than a week later and still managed to complete the full legislative process and pass the bill. Committee leadership needs to explain why it refused to allow SB0230 to advance; otherwise, we’re left to assume that the Judicial Proceedings Committee, or at least the leadership, agreed with Senator Cassilly.

I thank Senator Susan Lee and Delegate Charlotte Crutchfield, HB0590/SB0230’s lead sponsors, for fighting to bring this issue to the governor’s desk. Though the repeal failed this year, it wasn’t due to a lack of support — it passed the House of Delegates in a bipartisan 127–9 vote. The 2021 legislative session presents another opportunity to make this broadly supported, simple change, and this issue is too important to just let go.

Repealing the spousal defense is about protecting everyone’s right to bodily autonomy and proving Maryland’s commitment to justice for survivors of sexual assault, regardless of perpetrator. The spousal defense represents a shockingly archaic view of marriage and consent that doesn’t have a place in our state. Let’s make sure that in 2021 we get rid of it.